The Brethren

by Bob Woodward

  Solicitor General Griswold suggested to Mitchell that Powell might react differently to a direct appeal from the President. Powell had barely arrived home in Richmond that night when the phone rang. It was the White House. President Nixon pushed hard. Powell had a "duty" to accept—a duty to the South, to the law, the Court, the President, the country, Nixon said.

  Powell told him that he would consider it, but even as he said it, he realized that he couldn't turn down the President.

  Powell had been offered Hugo Black's seat. A candidate was still needed for Harlan's. Kleindienst got ready to review the likeliest nominees with Mitchell. Rehnquist, who had participated in most of the meetings, was also preparing for the meeting when Kleindienst told him to forget it. "We're going to be talking about you," Kleindienst said.

  Nixon had certain concerns about nominating Rehnquist. It would look like an "in-house" appointment, and Rehnquist was relatively unknown in establishment legal circles. A former clerk to Justice Robert Jackson in 1952, Rehnquist had practiced law for sixteen years in Phoenix where he was part of the Goldwater wing of the Republican party. He had joined the Justice Department to head the Office of Legal Counsel as an assistant attorney general in 1969. He had been, in effect, Attorney General Mitchell's lawyer.

  Nixon had some trouble remembering Rehnquist's name; he once called him "Renchburg." He was also somewhat taken aback by the easygoing lawyer's appearance, once referring to him as "that clown" because of his long sideburns and pink shirts. But Rehnquist was very bright and extremely conservative. And at forty-seven, he could be expected to serve many years.

  On Thursday night, October 21, in a televised address, Nixon announced the norninations of Powell and Rehnquist

  Nixon thought Powell would be confirmed easily. He was a native Virginian and he had impressive credentials: Phi Beta Kappa from Washington and Lee College in 1929; first in his class at Washington and Lee Law School after completing the three-year course in only two years; a year of graduate work at Harvard Law School; private practice with a prestigious law firm; directorships in eleven major corporations; President of the A.B.A. in 1964-65; President of the American College of Trial Lawyers, 1968-1970; and member of Lyndon Johnson's National Crime Commission.

  Powell was a political moderate. As Vice-President of the National Legal Aid and Defender Association, he had played an important role in securing organized bar support for legal services for the poor. As Chairman of the Richmond School Board from 1952 to 1961, he kept the Richmond schools open in spite of segregationist pressure to close them in the wake of the Brown decisions.

  Rehnquist too had excellent credentials: an undergraduate and master's degree from Stanford; a master's in history from Harvard and Editor of the Law Review at Stanford Law School.

  But Rehnquist might have more trouble than Powell in getting through the Senate. Richard Kleindienst, the Deputy Attorney General, had brought him to Washington in 1968 to serve as Assistant Attorney General to advise the department on legal strategy. He had performed brilliantly for the administration—justifying its anticrime measures, its wiretapping of domestic radicals, and the mass arrests during the previous spring's demonstrations. Rehnquist might have done his job too well. He might run into fire from congressional liberals. Blacks also seemed certain to oppose his nomination. Rehnquist had testified against a Phoenix civil-rights act as recently as 1964, and in favor of limited school desegregation in 1967.

  But Nixon had a plan: the two nominations would be sent to the Senate as a package. Powell's supporters worked hard to untie the knot, to try to see that Powell and Rehnquist were not even so much as photographed together in visits to Capitol Hill. Shortly after his nomination, Powell and a group of supporters called on the Senate Judiciary Committee chairman, the conservative James Eastland.

  Eastland sat behind his desk, silently puffing his cigar. "You're going to be confirmed," he told Powell.

  Powell thanked him.

  "Do you know why you're going to be confirmed?" Eastland asked. No, he replied.

  "Because," Eastland drawled, "they think you're going to die."

  Eastland was offended by the efforts of Powell's friends to separate his nomination from Rehnquist's. Rehnquist had captured Eastland's affections during his appearances on the Hill The Senator had heard enough from Powell's supporters about how Rehnquist was a lowbrow, not up to the standards of the Supreme Court. To Eastland, that just meant that Rehnquist represented ordinary folk, Middle America. The confirmations, he declared, would be "double or nothing."

  Eastland got word that the ABA. screening committee was not going to give Rehnquist a favorable recommendation. The committee's authority was only advisory, but an adverse vote might damage Rehnquist's chances by making him seem unqualified. Eastland found that prospect incredible. Rehnquist was no dullard. He had been first in his class at Stanford Law School. There had to be a raw political motive behind this, and Eastland decided to expose it The Chairman passed the word to the A.BA. committee that if it didn't approve Rehnquist, he would subpoena each of the twelve members to testify about their reasons under oath. Subpoenas were typed; travel plans prepared. Staff members were ready to fan out around the country.

  The A.B.A. panel voted on November 2. Powell was unanimously given the highest possible rating. The committee, apparently buckling to Eastland's threat, then voted 9 to 3 to give Rehnquist the highest rating, and even the minority stated that it was "not opposed" to his nomination.

  The Senate Committee's questioning of Powell in early November was perfunctory. A brief controversy arose over an article that Powell had written for the local Richmond paper four months earlier. The article had attacked the "radical left" and linked it to "foreign Communist enemies." Wiretapping of domestic radicals without obtaining warrants was reasonable and necessary, Powell had written; there was no real distinction between "external and internal threats" to the national security. But the flap over the article was minimal. Powell was confirmed by the Senate on December 6 by a vote of 89 to 1.

  Rehnquist received a rougher grilling. His most serious problem arose when a memo surfaced that he had written in the Brown case, when he was clerking for Justice Jackson nineteen years earlier. The memo recommended that the Court not order school desegregation. "Separate but equal" facilities were all that was constitutionally required, Rehnquist had stated.

  Rehnquist testified that he had written the memorandum, but he denied that it had reflected his views. He was merely summarizing Jackson's views for the conference.

  Rehnquist's account was disputed by a lawyer who had clerked with him on the Court, and by Jackson's secretary. Press reports played up the discrepancies in testimony.* But the Committee dropped the matter. In two full days of hearings, the liberals could do no more than establish that Rehnquist was every bit as conservative as he appeared to be when defending administration policies. On December 10, the Senate voted to confirm him 68 to 26.

  The new Justices were to be sworn in after the holidays.

  In spite of their philosophical differences, Blackmun admired Douglas for the passion in his opinions. He was

  * Douglas, the only remaining member of the Court that had decided the Brown cases, examined a copy of Rehnquist's testimony. Rehnquist was correct, he told clerks. The views were, in fact, Jackson's. But see also Richard Kluger, Simple Justice, pp. 605-610.

  particularly moved by the poetic force of a Douglas dissent in an environmental case (Sierra Club v. Morton) that was argued in November.

  Because the Sierra Club could not prove that any of its members would be individually affected, the Court had thrown out the conservation group's suit to block the conversion of eighty acres of wilderness into a Walt Disney recreation complex and ski resort.*

  Those who hike it, fish it, hunt it, camp in it, frequent it, or visit it merely to sit in solitude and wonderment are legitimate spokesmen for it, whether they may be few or many. ...

  The voice of the inanimate object.
. . should not be stilled . . . before these priceless bits of Americana ... are forever lost or are so transformed as to be reduced to the eventual rubble of our urban environment; the voice of the existing beneficiaries of these environmental wonders should be heard.

  Blackmun did not feel that he could join Douglas's dissent. It was too personal. But he would vote with him, and he would provide the mathematical equivalent of Douglas's imagery. He made some calculations. The expected daily influx of tourists—14,000—would arrive over a new 29.2-mile, two-lane highway through Sequoia National Park. Assuming they came in the fewest possible number of vehicles, with four passengers apiece, that would mean 3,500 vehicles per day. Just one round trip per car would mean 300 each hour in each direction. A vehicle would pass every six seconds. "Is this the way we perpetuate the wilderness and its beauty, solitude, and quiet?" Blackmun asked.

  He suggested that the Sierra Club refile, with individual members as parties to the suit, thus giving them the "standing" that the Court had ruled the Club as a whole lacked. Alternatively, he proposed that the Court might broaden its traditional definition of standing to allow suits like this.

  * In order to have standing to bring a case, anyone bringing suit must have been directly affected by the action under question. "Why didn't the Sierra Club have one goddamn member walk through the park and then there would have been standing to sue," White remarked, before joining the four-member majority.

  Douglas was delighted by Blackmun's support and by his somewhat radical approach to broaden standing. He sought him out. "You like the out of doors, don't you, Harry?" Douglas said, patting Blackmun on the back. He did not need to say more.

  After months of struggling with the knowledge that Douglas held him in professional contempt, Blackmun felt they were suddenly bonded, two naturalists among despoilers of the environment. He felt closer to Douglas.

  Early in the morning of April 19, Blackmun dispatched a law clerk to Douglas's chamber, with a memo— "... Mr. Justice Blackmun desires to deliver his dissent orally from the bench but . . . will not do so unless you also deliver your dissent orally. He therefore requests that you dissent orally today."

  Douglas read his dissent aloud.

  Douglas had long wanted the Court to face the abortion issue head on. The laws in effect in most states, prohibiting or severely restricting the availability of abortions, were infringements of a woman's personal liberty. The broad constitutional guarantee of "liberty," he felt, included the right of a woman to control her body.

  Douglas realized, however, that a majority of his colleagues were not likely to give such a sweeping reading to the Constitution on this increasingly volatile issue. He knew also that the two cases now before the Court—challenging restrictive abortion laws in Georgia and Texas (Doe v. Bolton and Roe v. Wade)—did not signal any sudden willingness on the part of the Court to grapple with the broad question of abortions. They had been taken only to determine whether to expand a series of recent rulings limiting the intervention of federal courts in state court proceedings. Could women and doctors who felt that state prosecutions for abortions violated their constitutional rights, go into federal courts to stop the state? And could they go directly into federal courts even before going through all possible appeals in the state court system? Douglas knew the Chief wanted to say no to both these jurisdiction questions. He knew the Chief hoped to use these two cases to reduce the number of federal court cases brought by activist attorneys. The two abortion cases were not to be argued primarily about abortion rights, but about jurisdiction. Douglas was doubly discouraged, believing that his side was also going to lose on the jurisdiction issue.

  Since Powell and Rehnquist still had not been sworn in, the cases were going to be decided by a seven-man Court. The Chief, Stewart, White and Blackmun seemed firmly opposed to taking an expansive view of the range of civil rights cases that could be brought to federal court. So, jurisdiction or abortion, either way it looked like at least a 4-T.0-3 defeat.

  In one case, Sarah Weddington, a poised but inexperienced advocate before the Court, argued on behalf of the women hoping to overturn an 1856 Texas law restricting abortions. Unaware the Court was focusing on jurisdiction questions, she immediately began discussing the woman's constitutional right to an abortion.

  Stewart pointed out that there were several threshold questions to be dealt with first, including the jurisdiction issue.

  Stewart's questions drew Douglas's attention. As always during oral argument, he was a flurry of activity. Douglas listened with one ear, wrote, listened a moment, requested a book from the library, listened again, asked an occasional question, signed his correspondence for the day, listened again, made sarcastic comments to the Chief on his left or Stewart on his right. Now, for a change, Douglas stopped dead. He jotted a quick note to his clerks. "I need considerable research" on the jurisdiction question, he wrote. "Would one of you take it on?"

  Weddington replied to Stewart that she saw no jurisdiction problem. Under earlier Court decisions, federal courts could intervene in state courts when constitutional issues had been raised. The Court had a number of bases for striking down Texas's abortion law. "We had originally brought the suit alleging both the due process clause, equal protection clause, the Ninth Amendment, and a variety of others," Weddington began. "Since—"

  "And anything else that might have been appropriate?" White interjected sarcastically.

  "Yes, yeah," Weddington said, dissolving into laughter for a moment.

  But White had pinned Weddington where he wanted her.

  She had made a broad constitutional claim, the kind a majority of the Court normally opposed.

  "Well, do you or don't you say that the constitutional right you insist on reaches up until the time of birth, or what?" White asked.

  ". . . The Constitution, as I see it, gives protection to people after birth," she offered.

  Douglas then turned the questioning back to the issue they were supposed to be considering, the federal jurisdiction question, and Weddington's time soon lapsed.

  When Assistant Attorney General of Texas, Jay Floyd, began presenting the state's case, Marshall returned to the issue of abortion. When, he inquired, does an unborn fetus come to have full constitutional rights?

  "At any time, Mr. Justice; we make no distinction . . .*' Floyd replied. "There is life from the moment of impregnation."

  "And do you have any scientific data to support that?" Marshall asked.

  "Well, we begin, Mr. Justice, in our brief, with the development of the human embryo, carrying it through to the development of the fetus, from about seven to nine days after conception," Floyd answered.

  "Well, what about six days?" Marshall asked, eliciting a mild chuckle from the audience.

  "We don't know," Floyd acknowledged.

  "But this statute goes all the way back to one hour," Marshall said, clearly enjoying himself.

  "I don't—Mr. Justice, it—there are unanswerable questions in this field, I—" Floyd, flustered, was interrupted by laughter around him.

  "I appreciate it, I appreciate it," Marshall chanted, leaning back in exaggerated satisfaction with Floyd's befuddlement.

  "This is an artless statement on our part," Floyd offered.

  "I withdraw the question," Marshall said, trailing off.

  Laughter nearly drowned out Floyd as he continued.

  The Court turned to the Georgia case. Margie Pitts Hames summarized her client's case against a Georgia law that required abortions to be approved by two doctors and a hospital committee. This case was different from the Texas case, she insisted. There was no question of jurisdiction here, she argued.

  Blackmun, energized for the first time that morning, asked questions about why the women who were suing had not sued the hospital as well as the state of Georgia. He also questioned Hames closely on the widespread practice of requiring that medical panels—not simply one doctor— approve certain types of abortion, thus making them difficult to
obtain.

  Blackmun's tone was hostile throughout. Overall, he had found the quality of oral argument in these cases poor. The abortion issue deserved a better presentation.

  The rule of thumb at the Court was that oral arguments rarely win a case, but occasionally lose one. The Texas Attorney General would certainly have hurt his case had it not been for the fact that the case would be decided on the question of jurisdiction.

  As the father of three outspoken women and the husband of another, Blackmun was sensitive to the abortion issue. Even more, as a former counsel to the Mayo Clinic, he sympathized with the doctor who was interrupted in his medical practice by the state, and told how he could or could not treat his patients. On the other hand, Blackmun generally felt the states should have the right to enforce their legislative will

  Stewart thought that abortion was one of those emotional issues that the Court rarely handled well. Yet it was becoming too important to ignore. Abortion was a political issue. Women were coming into their own, as Stewart learned from his daughter Harriet, a strong, independent woman.

  As Stewart saw it, abortion was becoming one reasonable solution to population control. Poor people, in particular, were consistently victims of archaic and artificially complicated laws. The public was ready for abortion reform.