True Compass (35 page)

Nixon publicly held his rage in check; he remarked icily and artfully at a press conference that the Senate, "as presently constituted," would not confirm a southern nominee who shared the president's vision of strict constructionism. A few weeks later, reportedly at the suggestion of Chief Justice Warren Burger, he nominated Burger's fellow Minnesotan and close friend, Harry Blackmun, to the Court. Blackmun held strong conservative credentials as well; but his answers to my questions at his hearing--he affirmed that the Court should continue to be "the real bastion of freedom and liberty" in the nation--told me he would be an acceptable choice. He was confirmed unanimously, and eventually became one of the most effective and outspoken progressives on the Court until he retired in 1994, and was replaced by my former counsel, Stephen Breyer.

Racial insensitivity continued to run through Nixon's Supreme Court nominees. When Hugo Black and John Marshall Harlan announced their impending retirements in September 1971, Nixon's first choice for the nomination was Congressman Richard Poff of Virginia. In 1956 Poff had signed the Southern Manifesto protesting the Court's landmark
Brown v. Board of Education
decision outlawing school desegregation. Poff declined Nixon's offer.

Eventually, Nixon nominated former assistant attorney general of the Office of Legal Counsel William Rehnquist and Lewis Powell, a moderate conservative from Virginia. I was lulled, at first, into a sense of relief when I saw these names. At least these were men of reputation and some accomplishment. And in fact Powell, who was confirmed easily, served as a centrist and consensus-builder on the bench for fifteen years.

Rehnquist was another matter.

I knew that Rehnquist's conservatism ran deeper than Powell's. He was rumored to have held questionable positions on race matters. Still, hoping with everyone else that a third standoff with the president could be avoided, I withheld any final opinion until the hearings. In retrospect, given the historic consequences, perhaps I should have pounced right away. But it probably would not have mattered. Nixon played this round with the instincts of a chess master in the endgame. He understood the steep odds against another standoff.

Controversy erupted almost immediately. As with the earlier nominees, the civil rights community mobilized its opposition to Rehnquist. Revelations surfaced that in 1964, just seven years earlier, he had testified in opposition to desegregating public accommodations in Phoenix--at the same moment, virtually, that Congress was en route to passing the Civil Rights Act. He was shown to have favored restrictive covenants in housing and to have fought school desegregation, remarking, "We are no more dedicated to an integrated society than we are to a segregated society. We are instead dedicated to a free society."

Charges also surfaced that from 1958 through 1964, Rehnquist, as a lawyer working for the Republican Party in Arizona, repeatedly had confronted black and Hispanic citizens at polling places in Arizona and tried to prevent them from voting. The NAACP released affidavits sworn to by two African-American men that they had witnessed Rehnquist challenging black voters at a Phoenix precinct in November 1964. One of these men added that a black woman had come to him in tears: as she'd stood in line, Rehnquist approached her and demanded that she recite the Constitution as a prerequisite to voting. After a scuffle involving the two men and Rehnquist, police removed the young lawyer from the precinct. He later returned in a car. Rehnquist responded by insisting that he'd been near the voting lines only to supply legal advice to people who were in fact challenging voters.

My opening-day questioning of Rehnquist on November 4, 1971, focused on the nominee's assaults on civil liberties. I grilled him on his role in supplying legal justification for the administration's use of wiretapping, electronic surveillance, and "no-knock" entries of residences in drug cases. I also pressed him on his role in "containing" the anti-Vietnam rally on the Washington Mall earlier that year, which resulted in the arrest or detention of twelve thousand peaceful demonstrators. That particular action was later voided by the courts on First Amendment grounds.

There was opposition fatigue, in the press, in the nation, and even in the Senate. No revelation of insensitivity on issues of race or violations of civil liberties seemed to resonate or stir opposition to Rehnquist. The nominee proved adept at deflecting the queries with platitudes. And then the administration claimed executive privilege to prohibit the committee from gaining access to memos that Rehnquist had written to Attorney General John Mitchell on these issues. Rehnquist also protested that disclosure of the memos would violate the privacy of the "attorney/client" relationship. Given that the client of the attorney general is the American people, I did not understand how this relationship could be "private." Nevertheless, we saw the same arguments being used decades later by President George W. Bush to block the committee's access to documents in the confirmation hearing of Rehnquist's former law clerk, John Roberts, to succeed his old boss as chief justice of the United States.

Newsweek
released a bombshell a day after the hearings began. On November 5, the magazine published the contents of a memo written by Rehnquist in 1952, when he was a twenty-seven-year-old clerk for Justice Robert H. Jackson.

The memo, "A Random Thought on Segregation Cases," could not have laid out its argument more candidly or clearly: "Plessy vs. Ferguson [the infamous 'separate but equal' doctrine handed down by the Court in 1896] was right and should be reaffirmed." Under that reasoning,
Brown v. Board of Education
should not have overruled
Plessy
, but instead should have upheld the constitutionality of segregation in our public schools.

Its conclusion read, "To the argument... 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."

In other words, as long as we're in the majority, we can decide what the minority is entitled to. We're the boss.

How did Rehnquist justify his majority-rule view of racial fairness? He said the memo did not reflect his views. "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use," Rehnquist wrote in a letter he delivered to James Eastland, the committee chairman. Why Justice Jackson, who in fact voted to strike down school desegregation in
Brown v. Board of Education
, would ask for such a memo was never explained. Jackson died in 1954, shortly after his vote on the historic
Brown
decision, and thus was unavailable to answer Rehnquist's allegation.

Rehnquist's confirmation (by a resounding vote of sixty-eight to twenty-six) owed much, I believe (and as Nixon had foreseen), to the Senate's institutional reluctance to repudiate a president a third consecutive time. The unfortunate result was, in my opinion, a justice whose record was disqualifying on its face.

What we now call "Watergate" was in fact a confluence of at least three currents that began flowing in 1971. The first was the International Telephone and Telegraph scandal, which involved essentially the same players, the same atmosphere, and the same activities that comprised the larger chain of wrongdoings. The second involved Nixon's firing of the special prosecutor he'd appointed to investigate the many allegations. The third was Watergate itself: the illegal break-ins by clandestine agents seeking to gain information about Nixon's adversaries, the illegal payoffs to those agents, and the illegal cover-ups of both activities.

The ITT affair began to surface in the summer of 1971, at about the same time the
New York Times
and
Washington Post
began publishing the Pentagon Papers and nearly a year before the storied break-ins at the Watergate office complex. This was not entirely a coincidence. Daniel Ellsberg's bold procurement of those papers--the Defense Department's top-secret history of the war that revealed a pattern of official lying about its prosecution--had driven the secrecy-obsessed Nixon to his catastrophic spree of surveillance and revenge. In September 1971, summoning the same "plumbers" unit that a year later would try to bug the Democratic offices at the Watergate complex, Nixon authorized a burglary raid on the office of Ellsberg's psychiatrist. Their mission was to scavenge for files that would call into question the former defense analyst's sanity.

In July 1971, the Republican National Committee announced that San Diego, Richard Nixon's preferred city, would be the site of its 1972 convention. A little more than a week later, the Nixon Justice Department revealed that it was dropping the appeals of three major antitrust suits involving ITT--appeals that had seemed likely to be upheld in the Supreme Court. This news was quickly followed by the abrupt resignation of Richard McLaren, the chief of the department's antitrust division, who'd built the cases and had a reputation as a relentless watchdog of conglomerate mergers. Just days after his resignation, McLaren was given a federal judgeship in Chicago, the appointment brokered by Deputy Attorney General Richard Kleindienst, who persuaded the chairman of the Judiciary Committee, Jim Eastland, not to hold confirmation hearings. I immediately smelled a rat, but could find no evidence that the judgeship was tainted, or any reason why it might have been. The syndicated columnist Jack Anderson smelled one as well, and said so in a December 9 column--an artful solicitation, as Anderson himself later admitted, for more information from anyone out there who might possess it.

Things grew more intriguing when Kleindienst--a longtime Arizona friend of William Rehnquist and a colleague of his at Justice--turned up in early 1972 as Richard Nixon's nominee for attorney general. He would replace John Mitchell, who'd resigned to spearhead Nixon's reelection campaign.

Kleindienst's original confirmation hearings elicited some opposition on the Committee, but not enough to prevent him from being reported out favorably. However, Kleindienst's troubles were just beginning. On February 29, and again on March 1, Jack Anderson published columns that called Kleindienst's integrity into question. His trial-balloon column had paid off: an informant, whom Anderson never named, appeared at the columnist's Washington offices and presented an internal ITT memo that amounted to the first "smoking gun" of the long Watergate affair. It explained why the administration had quietly dropped the antitrust investigations against ITT: the company had struck a secret deal with the administration to donate $400,000 to bankroll the San Diego convention. (The city itself had refused to finance the event.)

Why San Diego? Nixon was a Californian who loved the coastal stretches and the political climate below Los Angeles. He'd purchased his San Clemente estate, just an hour's drive up the highway from the city, in 1969. The region was a good deal more conservative than Los Angeles or San Francisco, and Nixon wanted a televised show of popular enthusiasm to contrast with that of his likely opponent, George McGovern.

The memo's author was an ITT lobbyist named Dita Beard. Beard asserted that Mitchell and Nixon not only knew about the company's donation, but had approved the terms under which it had been given. The go-between had been Kleindienst.

Kleindienst immediately demanded that the Senate reopen his hearings so that he could clear his name. In a hastily arranged private meeting with me in my Senate office on March 1, he insisted that he had never talked to Mitchell or anyone else at the White House about the ITT case, and that he certainly had never brokered any illegal agreements. He was lying.

He certainly got his wish about the hearings, and then some. Eastland agreed to reconvene the hearings. We started on March 2 and went on for twenty-two sessions. Eastland was, as always, very fair to me, and allowed me to call most of the witnesses I wanted and to use my Ad-Prac subcommittee staff to do the necessary investigatory work. Those hearings were the most intense I'd participated in since my arrival in the Senate, and I wanted them that way. (In certain respects, they formed a procedural template for the Watergate hearings themselves.) Often the sessions would last well into the evening, after which I'd convene my weary staff at the McLean house at around 10 p.m. to discuss the draft questions for the next day.

Kleindienst appeared five times, but we had plenty to talk about even in his absence. Just about every day brought new revelations: of meetings between ITT executives and Justice Department officials; of document shredding in the ITT offices; of skewed financial studies by the corporation for the White House. My fellow Democrats and I pressed the White House hard for documentation covering the antitrust settlements, and the White House, after strongly resisting us at first, complied. I asked Kleindienst for the record whether he had had any contact from the White House on the cases, and he replied, "No, sir"--a perjury, as it developed.

Dita Beard herself was a piece of work, as I discovered when five other senators and I visited her in Denver on March 26. I felt that as the author of the fateful memo, she should come and testify in the hearings, but when we learned that she was confined to an osteopathic hospital in Denver with a weak heart, Eastland authorized a bipartisan delegation to go and take her testimony there. We arrived at Rocky Mountain Osteopathic Hospital to find a crusty, fast-talking woman in her early fifties who sprayed jumbled thoughts in salty language at us as she alternately sucked on cigarettes and gulped from her oxygen mask.

It was not the most productive of testimonies I've witnessed, but it was among the most colorful. As we senators, a court reporter, Flug, and a lawyer for Eastland stood awkwardly around her bed, she smoked and coughed and denied having written the memo, which she'd earlier owned up to until the week before the hearing. She dropped administration names and called various people sons of bitches. When the Florida Republican Senator Edward Gurney asked her what she knew about Kleindienst, the arrows on her blood pressure machine went straight up, and she gasped and clutched at her throat until the doctor stopped the session and ushered us out of the room. I looked at Phil Hart, and saw that he was nearly as pale as Mrs. Beard herself. "That's it," Hart declared. He was not going to go back into that room, for fear that our witness might seize up and die.