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A Conversation with Wally Johnson, Rehnquist's Lawyer

This week spoke about the history of the Supreme Court in the Nixon era with Wallace H. Johnson, the man tapped by the 37th President to manage the confirmations of William Rehnquist and Lewis Powell for two Associate Justice seats.

After working as an organized crime prosecutor and as a staff member on the Senate Judiciary committee, Mr. Johnson held a variety of roles in the Nixon administration, including Associate Deputy Attorney General in charge of legislation, Special Assistant to the President for Legislative Affairs, and Assistant Attorney General for Land and Natural Resources.

Recently, he participated in three Nixon Legacy forums about the administration of justice under President Nixon. Last Sunday, he wrote a letter to the editor on the subject which appeared in The New York Times book review.

What was the mission of the Warren Court, and what was its effect on American society?

It’s hard to put this in perspective today, but in 1968 the Warren Court decisions compounded unrest in our country and created an election issue around law and order that helped elect Dick Nixon in 1968. Pat Buchanan explained this very, very well when he was part of one of our legacy panels on the evolution and creation of the Nixon Supreme Court.

The issues were that Warren was very permissive and the Court created an atmosphere in our country that did not make the electorate feel secure in their being. And it fit in very neatly with the permissive society of the 1960s.

How did President Nixon view the Court’s role in society?

I never talked with him personally about this, but I did discuss nomination strategy with him when Powell and Rehnquist were before the Senate Judiciary Committee. He was very hands on about this subject. But having read a fair amount about the era and having lived through it, I’m inclined to say that he would fall into the Scalia-Rehnquist school of Supreme Court decision making where there is a restricted role for the Court, and the restricted role would always tilt toward protecting the rights of the community on the edge of protecting the rights of the individual. That may very well have been necessary to restore order to the country then.

The Warren Court in the broadest sense was very attentive toward protecting the rights of the individual, and drawing that line is a very fine line because there’s no question that with the principles of the Constitution as they are with the Bill of Rights, the strength of our society is how we protect the rights of the minority. The decision that everyone will remember is Miranda v. Arizona (1966) where the Court imposed an obligation on the police to advise people of their rights before they questioned them.

I don’t suggest at all that President Nixon never intended to protect the rights of the minority, what I’m suggesting is that during that era there was the appearance that the rights of society were not being tended to.

If you think about it, people were insecure in their being – there were riots in the streets of the cities of the United States, there were many people concerned that their government was not protecting them. President Nixon was very much on top of this and tending to be a law and order President, and he had a law and order Attorney General and that was John Mitchell.

I’m a product of the Justice Department; I came up from the bottom and worked with and for Mitchell, and was an organized crime prosecutor at the beginning of my legal career. We were concerned about insuring that the Court appointments and the laws that the government enforced were supporting local law enforcement.

The states primarily have responsibility over traditional crimes and the Federal government – in the broadest sense the FBI - investigates Federal crimes. The fact is people out of concern for their property and their lives rely on protection from local government. Many people don’t realize that over ninety percent of criminal investigation and prosecution is at the local level and the Federal Government has limited ability to directly affect the investigation and prosecution of criminals.

So what could the Federal government do to strengthen local law enforcement? President Nixon had a test case in the District of Columbia where Federal jurisdiction was local, and he did lots of interesting things particularly in strengthening the police. But look how big the country is and how many cities we have, how could the President and the administration make a big impact there? One way was through the Law Enforcement Assistance Administration (LEAA) which provided very defined support for local law enforcement through a block grant program to the states and specific grants for test tube programs – test tubes in the sense that the experience could be translated from one city or state to another.

How did President Nixon’s first nominee come to be Warren Burger for Chief Justice?

That’s in the history books, but I wasn’t personally a part of the Burger process. Burger certainly looked and played the part though. He had been an appellate court judge. I do know that President Nixon in his memoirs suggested that his four Supreme Court nominees were one of the major achievements of his presidency. That would be the Minnesota Twins (Justices Burger and Blackmun), and Justices Powell and Rehnquist. All were apparently oriented toward the President’s judicial philosophy.

Now in retrospect, the dominant personality of that quartet was Justice Rehnquist who served from 1971 until 2005 and made a major impact on the court. But President Nixon's six total nominations  -  plus the Abe Fortas controversy  -  also redefined the Article 2, Section 2, Clause 2 principle of advice and consent, and advice has a new meaning now in a constitutional sense. If you’re following the conversation on Capitol Hill about who will become Secretary of State, you will understand exactly what I’m saying.

Why were Justices Powell and Rehnquist successfully confirmed with the same majority of Democrats in the Senate? Why did Carswell and Haynesworth have such a terrible time?

I think there were several reasons. I was a part of this process and I’ve studied it analytically for the past 40 years.

First, there was a reaction in the Senate because of the way in which the Republicans had treated Abe Fortas, and by the way don’t forget that Jerry Ford was trying to get Bill Douglas impeached! So there was an atmosphere where the Senate Democrats wanted to take the President to task on his nominations.

Presidents-- right up to Nixon--believed that it was the Senate’s responsibility to approve whomever they chose for the seat. What happened in the Nixon era – the first term – was that the Senate said “Wait a minute! It shouldn’t work that way.”

With the first two nominations there was some retaliation involved and there were some serious questions about Carswell’s qualifications. Personally, I look at Haynesworth as retaliatory and with Carswell the Constitution working pretty well. I was the staff guy for Carswell’s Senate manager then, Roman Hruska, and Hruska made a joke about Carswell to the press corp about mediocre meaning average folks who deserved representation too. It was a joke and it was taken seriously and affected Hruska’s reputation for life. It was most unfair.

Johnson along with his former White House colleagues Tom Korologos and Fred Fielding talked about how they vetted and confirmed RN's Supreme Court nominees.

How did you get to become Bill Rehnquist’s lawyer and manage his confirmation to the nation’s high court?

I got a telephone call from John Mitchell. I was an Associate Deputy Attorney General and had worked on the Senate Judiciary Committee staff as I mentioned with Senator Roman Hruska (R-NE), the committee's ranking Republican member. He, Senator Jim Eastland (D-MS), the Chairman of the committee, and John Mitchell were a three way partnership. This goes to the way the executive branch and the judiciary committee worked together then.

In that post, I coordinated with the committee and was there mostly because I got along quite well with Hruska and Eastland. As manager for Powell and Rehnquist, my job was communication and being sure that all three of these parties were well informed and supported each other. I was just a kid then, I think about thirty years old.

When Bill Rehnquist was nominated to be a Supreme Court Associate Justice, there now was a void at Justice - Bill was the nominee and had previously served as nominee manager - so Mitchell called me and said “Bill Rehnquist needs a lawyer,” and I wound up managing the Powell-Rehnquist nomination for Mr. Nixon and with the Judiciary Committee.

I went back to work again with Bill after I entered private law practice as his adviser when he was nominated for Chief Justice. Tom Korolgos who has developed a wonderful reputation helping Presidents with confirmations had been asked by President Reagan to help here. Rehnquist has been my friend since 1969 till the day he died. I still regard him as a dear friend. But I was thrown directly together with him during those two periods of time. You might ask what we did differently.

That’s exactly my next question. How were you able to successfully manage his confirmation in 1971?

The way we did it was essentially to have very clear communication between the Attorney General (Mitchell), the Chairman of the Judiciary Committee (Eastland) the ranking member (Hruska), and with a clear focus on keeping the Rehnquist nomination in front of Lewis Powell. Remember too that this is all about counting votes and I worked closely on that with Tom Korologos who worked with Bill Timmons in the White House Legislative Office. They were serious partners and helped a lot.

Powell was an icon; he was President of the American Bar Association, he was a patrician in the Virginia community, he was a gentleman of the law. There wasn’t a person except for Senator Fred Harris from Oklahoma that didn’t want him on the Supreme Court. There was extreme pressure to get him on and as long as we didn’t allow the nominees to become decoupled, Rehnquist was going to be selected and confirmed. So there was a fair amount of strategic maneuvering to keep them linked in that fashion. We always had a vote for Rehnquist before any votes were taken on Powell. Powell was a perfect gentleman in allowing his nomination to been used in that fashion. That’s generally how we did I it.

Now Mr. Rehnquist was very careful in answering every question, because during this era the concept of “Borking” came to be. Though the term was officially coined during Judge Robert Bork’s nomination hearings in 1987, the Senate Democrats tried to “Bork” Rehnquist. Anything and everything a nominee may have written would be intimately scrutinized; an extensive record was kept and used to oppose a nomination. Essentially, you have 100 Senators as a jury and no rules of evidence. You’re playing on the largest stage in history – with the biggest stakes – and there are no rules to govern what happens as in trial in a court of law.

At last count, 430 plus or minus appointments are confirmed by the Senate Judiciary committee – so the business of confirmation is pretty elaborate and the plums are the Supreme Court nominations since they have such an impact on our society and the way it's run.

Having said that Nixon’s 4 appointments – and I think the President was absolutely right in his assessment in his memoirs - made a difference in the way we are governed, some in the short term and some in the long run. If you look at the way the Court has reformed itself continuing through what is now the Roberts Court – it is because of President Nixon.

In what ways has President Nixon’s appointments brought the Court back to an era of originalism and judicial restraint?

Over the last 40 years these concepts have changed, you have the notion of strict construction, you have progressives, you have liberals, you have any number of different ways we now describe how a judge may think about interpreting the Constitution. The fact is ever time a new person goes on to the Court, its core philosophy changes ever so slightly.

You can’t predict exactly how they are going to react to whatever case is in front of them. No president, no attorney general, no member of the Senate Judiciary Committee, has been able to get someone to explain how Justices would react to certain cases in advance. That was part of the Rehnquist mystique; he wouldn’t discuss how he would react to pending or hypothetical cases before the Court when pressed before the Senate Judiciary Committee. Not one subsequent nominee has either. So the kabuki dance you see in a Senate Judiciary hearing is the Senators trying to explain how they think the cases should be decided, and nominees trying to avoid telling them how they would decide. It’s most interesting with the Senators doing most of the talking.

Now, having said that, if you look at the four appointments Nixon made, and followed up by the appointments Reagan made—because I look at this as a Nixon-Reagan Court, not just the Nixon Court— there is a continuity, and through some court decisions a standard imposed on Congress not to so freely exercise the Commerce clause as a predicate for enacting legislation.

In the 1930s, and I think it was in 1938, Johnny barred the door when it came to the exercise of Federal authority! All the Congress had to do was say there was an impact on Interstate Commerce, and they could legislate any way they wanted.

The Rehnquist Court said slow that down a little bit. They said “let’s see why, and what the impact is.” So now the Congress is required to think more consciously before it applies the Commerce Clause.

And that was upheld as recently as the healthcare decision?

Yes, and the movement that Bill Rehnquist started as a minority became the thinking of the majority evolving from 1971 to 2005. The other part of that is, and this goes to the complexity of governing such a large country, the Rehnquist Court tended to try to push power back to the states so that there was a better balance between what the executive did, what Congress did, and what the Court was trying to moderate, between the two. So we got an evolution of governance that was started because of President Nixon, and in my mind is totally consistent with his philosophy even when we look at it 40 years after the fact. The cultural context has changed, but the principles that were established by Nixon, and with these appointments hold us in good stead today.

Then if you look at this balance that was such a political issue in 1968, and a hallmark of the Nixon term, the President was in fact a strong advocate for law and order. And that means order in our society, it doesn’t mean give the cops a billy-club. It means a balanced approach to enforcement, prosecution and corrections. You have to have a strong enforcement capacity, because if you don’t have a strong enforcement capacity there is a disposition for society not to be as well organized, with human nature being what it is. Then if you don’t have good prosecutors and judges that are balanced and fair, you aren’t going to get strong support for enforcement, for the police.

Nixon and Mitchell were very good at understanding that, and built an infrastructure, and if you go back and start to take their administration of justice program apart, it was strong. They had good people and good policies. I think that is a good legacy for Mr. Nixon -  he very much restored order to our society.

You talk about how this is a Nixon - Reagan Court, and the Constitutional philosophy of giving power back to the states. In his memoirs, President Nixon talks about the "'iron triangle'" that was entrenched in Washington; that is the alliance between lobbyists, the bureaucrats and the Capitol Hill Democrats. Can you expand on President Nixon’s efforts to break that stranglehold?

Let me try and answer this way: policies are only as good as the people that implement them. With the appointment of the Nixon-era judges, and the Nixon era U.S. Attorneys, and the four key appointments on the Supreme Court, the people that were in place shared Nixon’s philosophy.

The presidency is not just a president; the presidency is a leader of a group of people with likeminded attitudes who work together toward the implementation of policy. Nixon and his team began the process of the manner in which we governed ourselves, and he began to break down the iron triangle in Washington. That doesn’t mean he did, because that entrenchment is so intense as to be near impossible to break, but he and his team began this process and we are still seeing the consequences play out today.

Can you expand on how the principle of advice and consent changed during this era?

The original reason for Article 2, Section 2, Clause 2, is part of the debate over the Constitution with the founders that went to the questions of how strong the executive was going to be, and it’s still a debate today. The fact is, the power of the president to appoint diplomats, ambassadors, and the Supreme Court Justices is subject to the advice and consent of the Senate.

Well we know that Nixon never picked up the phone - because we have records of his telephone calls -and said to the majority leader, minority leader, or any senators, what do you think about nominee “X?” Nor did he ask them any advice on the nomination process. Essentially the political attitudes of the Senate manifested themselves in the appointments President Nixon made. And it was conditioned by the unsuccessful nominations of Haynesworth and Carswell.

So every president since Nixon has had to be sensitive to the reality that there is a body politic manifest in the Senate that will have a mind of its own about who should go on the Supreme Court. Now, every President that I have lived under, which goes back to FDR, has believed it is their right to name—and I have heard Joe Biden say this very recently—their own candidates. That’s just fine if you have the votes in the Senate. Look at what is happening right now, where Obama is trying to qualify his nominee for Secretary of State.

So, the advice function is manifest by a correct understanding by the President of the will of the Senate, and that’s where people like me, and Tom Korologos, and Bill Timmons came into play because that communication between the White House and the Congress has never been perfect. There are too many Senators and understanding the will of 100 people is not perfectly simple. Bill and Tom were very good at doing that for Nixon. During this specific time, I did that for Mitchell.

This is a very tactical, practical observation. I would talk to the Chairman of the Judiciary Committee, to the ranking Republican member, which would give us a reflection on the collective thoughts of Senators from both parties. I’d then report it to John Mitchell every day during the pendency of Powell and Rehnquist. Then I would report it to the Timmons-Korologos team in the White House, incidentally an office where I ultimately began to work a bit later. We would have a momentum going where we had a pretty good fix on what that political will was, and that was the consent function.

The advice function was manifest in wondering in a professional way, who was qualified, and could be confirmed by the Senate. Now what has happened over the last forty years is that more and more people who are nominated have judicial experience, and there is a step-by-step process where by nominees are more likely to be confirmed to a seat on Supreme Court than not, and having judicial experience helps. It certainly would have helped President Eisenhower with Earl Warren who had no judicial experience and was out of step with Eisenhower and Nixon.

What can future President’s learn from Richard Nixon’s Constitutional philosophy?

What Nixon correctly assessed was the complexity of governing a country that is made up of five distinct geographic areas that are different in most every way and united mostly by history and now woven together by communication and transportation. And, what Nixon did in thinking about those Court appointments, was apply the very refined concept he had for a means to govern this huge nation.

Those Supreme Court justices played out very well the President’s attitude in individual decisions that matured as the Court changed over the last 40 years.

Today we have a more or less 5-4 split on the Court, sometimes its 4-4-1, but it’s usually 5-4, and those same principles of the Nixon nominees are being applied. Does that mean the country is going to dramatically change according to the Nixon philosophy of governance or New Federalism? No. It means there will be a tension, a constructive positive tension that should move us to a sense of governance that allows our country to survive under the Constitution.

That is very much the strong legacy given to our country by Richard Nixon and one that will survive into this new century to our collective benefit.