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Picking Rehnquist

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Erik asks in the comments if Rehnquist’s nature was known when Nixon appointed him. As it happens, John Dean wrote a good book on the subject.  Essentially, Rehnquist was a last-minute choice; Nixonites knew about many of the skeletons in his closet, but Senate Democrats didn’t have time to assemble the paper trail necessary to challenge the nomination.  Rehnquist perjured himself both about his activities as a polling booth thug and the famous memo he wrote as a clerk for Robert Jackson (in the latter case, claiming–ludicrously–that the informally written memo reflected Jackson’s position). Well, let’s quote the juicy bits from his memo:

To the argument made by Thurgood Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are… I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by “liberal” colleag[u]es, but I think Plessy v. Ferguson was right and should be re-affirmed. If the fourteenth Amendment did not enact Spencer’s Social Statios [sic], it just as surely did not enact Myrddahl’s [sic] American Dilemma.

There was some evidence that Rehnquist was incredibly reactionary, in other words, but Dems just didn’t have the right information to challenge his perjurious assertions, and Nixon didn’t care. (Because of the timing, Nixon didn’t know about Rehnquist’s role in forcing Fortas to resign and trying to impeach Douglas, both of which involved inappropriate use of the DOJ, and of course neither did the Senate.)  Another amusing sidelight is that a woman with a decade’s experience on the California courts was rated “unqualified” by the ABA. Lest you buy into revisionism about Nixon being domestically liberal, let’s consider Nixonites on women:

Mitchell: “I don’t think a woman should be in any government job whatever. I mean, I really don’t. The reason why I do is mainly because they are erratic. And emotional.”

Nixon: “[Chief Justice] Burger’s totally against [appointing a woman to the Court.]Because the Court doesn’t want to deal with a woman in the Court. I am against it, frankly…I’m not for women in any job. I don’t want any of them around. Thank God we don’t have any in the cabinet. But I must say the Cabinet’s so lousy we [might] just as well have a woman there too.”

There’s a common misperception that Nixon was a liberal on domestic politics. As his misogyny and relentless exploitation of Southern racism makes clear, he wasn’t.  It’s just that he was basically indifferent about most domestic policy, so that with a liberal Congress his policies looked liberal. With a conservative Congress, his domestic policy would have been conservative. He didn’t really care about it.  When picking someone for the court, he just cared about criminal procedure and busing. He didn’t require getting someone like Rehnquist–a Powell or Burger was good enough–but it certainly didn’t bother him either.

UPDATE: Jeff raises a good point about Rehnquist’s justifications.  According to Richard Kluger’s Simple Justice (and if you don’t own it, buy it now), in the 1971 hearing Rehnquist asserted that Jackson had asked him to prepare the memo to “arm himself” against the anti-Plessy Justices. In other words, Rehnquist is asking is to believe that one of the highest-wattage Justices of the 20th century needed to be informed about the basic facts of Lochner -era jusirprudence–in 1952.  Sure. (In a long footnote on pp. 609-10 of the revised version that came out this year, Kluger completely destroys Rehnquist’s position. Shorter Kluger: who are you gonna believe, a Justice who by the standards of his time was a strong liberal and humanitarian, or a guy who, from polling-booth thuggery to persuading Goldwater to oppose the 1964 CRA  to lone dissents upholding federal funding for Bob Jones University–has throughout his career engaged in race-baiting?) The Chief Justice perjured himself to cover up his racism twice, making his presiding over the Clinton Impeachment particularly ironic…

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