Nixon and the Supreme Court: The Appointment of William H. Rehnquist

by Ken Hughes

Rehnquist was nominated by President Richard Nixon in late 1971 and sworn in January 7, 1972. The 47-year-old had a reputation for being an outspoken conservative, a reputation he lived up to while on the court. He rose to Chief Justice in 1986, nominated by President Reagan. Rehnquist had served in the Nixon administration as Assistant Attorney General from 1969 to 1971.

William Rehnquist’s nomination to the Supreme Court in 1971 ran into trouble with the publication of a memo he had written nearly two decades earlier as a law clerk to Justice Robert Jackson. The memo, titled “A Random Thought on the Segregation Case” and bearing Rehnquist’s initials, urged the high court to uphold Plessy v. Freguson, notorious for the “separate but equal” doctrine that upheld racial segregation. “I know it is an unpopular and unhumanitarian position, for which I have been excoriated by ‘liberal’ colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed,” the memo stated. “Regardless of the Justice’s individual views of the merits of segregation, it quite clearly is not one of those extreme cases which commands intervention from anyone of any conviction.”

The memo emerged on December 5, 1971, just days before the Senate was to vote on the Rehnquist nomination. Rehnquist wrote to one of his Senate backers that the memo was composed at the request of Justice Jackson and was intended as a rough draft statement of Jackson’s views, not his own. There was some thought of putting off the Senate vote until the next session of Congress, but in this Dec. 10, 1971, conversation with his chief of staff H.R. Haldeman, President Richard Nixon threatened to retaliate by convening a special session of Congress that would force senators to work through the holidays. 

President Nixon and H.R. Haldeman on Rehnquist's Nomination

December 10, 1971, 9:10am approx.

Listen:

President Richard Nixon: They’re not gonna be pushed into [unclear] just letting it go to the next session. If they do, they’re gonna get a special session. I want that [unclear] right away.

White House Chief of Staff H.R. Haldeman: [Congressional Relations Counsel Clark] MacGregor is still strongly under the assum—oh, no, there’s no thought of that, apparently.

President Nixon: Well, that was in the Washington Post this morning, that several senators were saying [unclear] put it off, refer it to the next session. You tell MacGregor that if [William] Rehnquist is not approved, that I will call a special session to get him approved. And I mean it. He’s gonna be approved before—‘cause of the workload in the court. He’s got a little something today with, uh . . . use it if he needs to.

Haldeman: Uh—

President Nixon: We’ll let those bastards talk through Christmas.

The Senate voted to confirm Rehnquist's nomination later that afternoon by a vote of 68-26. Upon hearing of the confirmation, Nixon telephoned Rehnquist from the Oval Office to congratulate him and offer some final advice.

President Nixon and William Rehnquist

December 10, 1971, 5:18pm

Listen:
 

President Nixon: Well, you must feel like Chief Justice [Charles Evans] Hughes. He had 26 voting against him, too.

Justice William Rehnquist: Is that the exact number?

President Nixon: Fifty-two to twenty-six. I just got it in front of me, so you can go out and say, “Well, like Hughes, I had 26 against.” But you had 68 for.

Rehnquist: Gee, you’re a much better—

President Nixon: Yeah. There’s only one thing, though. I just damn near withdrew your nomination before, because I was just talking to [Treasury Secretary] John Connally and he showed me an article by [columnist] Joe Kraft endorsing you and I said, “I’ve made a mistake.”

Rehnquist: Hahahaha.

President Nixon: Yeah.

Rehnquist: Listen, I can’t tell you how much I appreciate your giving me this opportunity.

President Nixon: Yeah, yeah, yeah. This is a great thing. This is a great thing to be such a young man to go on the court. You’ll make a great record and, you know, the very fact that, uh . . . the only thing—I’ll give you only one last bit of advice, because you’re going to be independent, naturally, and that is, don’t let the fact that you were under heat change any of your views.

Rehnquist: I’ll remember that.

President Nixon: Don’t ever let—I told [Chief Justice] Warren Burger that. I said, “Now, Warren,” you know, ‘cause—except that he didn’t get much heat, but I said, “Judge, don’t come down here”—that’s the way I put it to him—“and let the Washington social set change you.”

Rehnquist: Well—

President Nixon: So just be as mean and rough as they said you were. Okay?

Rehnquist: Thanks, Mr. President.

President Nixon: All right, [unclear] good luck. Bye.

Rehnquist: Thanks a lot. Bye.