Transcript: Wally Johnson on Confirming William Rehnquist to the U.S. Supreme Court
Wally Johnson managed the confirmation processes of Lewis Powell and William Rehnquist to the U.S. Supreme Court
Jonathan Movroydis: Welcome to the Nixon Now podcast. I’m Jonathan Movroydis. This is brought to you by the Nixon Foundation. We’re broadcasting from the Richard Nixon Presidential Library in Yorba Linda, California. You can follow us at nixonfoundation.org or on Twitter, @nixonfoundation.
This week, hearings in the U.S. Senate began for Supreme Court nominee, Judge Brett Kavanaugh. Today, we look back at the justices President Nixon appointed for the highest court and the challenges they faced in their confirmation process.
Our guest today successfully shepherded through arguably one of the most consequential nominees in the past half-century, Justice William Rehnquist. He did this not once but twice when Justice Rehnquist became associate justice in 1971, and again, when he became Chief Justice in 1986.
Wally Johnson began his career as special attorney in the organized crime section of the criminal division at the Department of Justice, ultimately leading the Organized Crime Task Force in Miami. He went on to become minority counsel of the Senate Judiciary subcommittee on criminal laws and procedures under ranking minority member, Senator Roman Hruska.
In 1970, he was appointed by Attorney General John Mitchell as associate attorney general responsible for managing the Lewis Powell and William Rehnquist confirmations before the Senate judiciary committee. From 1972 to 1973, he served in the White House in the vaunted congressional liaison office. And then from 1973 to 1975, Johnson served as assistant attorney general for and natural resources. Today he remains a successful lawyer living in Cody, Wyoming. Wally Johnson, welcome.
Wally Johnson: Well, it’s good to be with you. These are exciting times.
Jonathan Movroydis: I’ll say, how did you…I just wanted to start at, how did you come to join the Justice Department and become a liaison for congressional affairs, both at Justice and at the White House? Can you just give me kind of an idea of your background?
Wally Johnson: I was hired into the Justice Department Honours Graduate Program where the Justice Department hires from the top 20% of certain law schools around the country. I was hired into the criminal division back in 1965. And when I went in and met with the administrative officer, he said we have several sections here. We have a fraud section and we have an organized crime section.
And he said, if you’re in organized crime, you’re gonna travel. Well, the organized crime section was a derivative of the Kennedy-Hoffa Squad which many people will remember was attorney general Kennedy’s highest priority issue while he was attorney general.
And I started as an organized crime section attorney, went down to Miami, ended up as the chief of the organized crime strike force down there. And when Mr. Nixon was elected in 1968, what happens almost certainly with every transition in government is many of the smart young people up on the hill go into the administration, I went the other way.
I went from being in the department up to work on the Senate Criminal Law Subcommittee where we processed the Organized Crime and Racketeering Act of 1970, a high priority for Mr. Nixon. And then after a year on the hill, came back into the Justice Department in charge of the legislated section, and I was an associate deputy attorney general, which means essentially that I was an adjunct to Deputy Attorney General.
He had three associate deputies then and one of the first things that happened for and with me then is that Rehnquist and Powell were named to the court and John Mitchell called me, who was the attorney general, and said, and I still remember this because there was a big bong on my phone that rang when the attorney general was calling. “Bill needs an attorney.” And I became directly involved in that activity with that telephone call.
As it turned out, Bill Rehnquist had been managing the prior four appointments. You’ll remember that Mr. Nixon in his memoirs said, one of the most significant and proudest things he did was to name four members to the Supreme Court: Berger, Blackmun, Rehnquist, and Powell, and we’re seeing that same mindset play out in more contemporary appointments. So that’s a brief overview in how I got involved.
Jonathan Movroydis: What attracted you to working in the Nixon, Mitchell Justice Department?
Wally Johnson: Well, there are two ways to answer that. On one hand, I’m a product of the Justice Department, and it’s the biggest law firm in the world and has the most prestigious client. So, many, many bright young attorneys are attracted into the Department of Justice in the Honours Program as a way in which the department is able to compensate them consistent with competitive salaries with other opportunities like other major law firms. So, I’m naturally attracted to the Justice Department. The other interesting piece of it, I’m a great admirer of John Mitchell.
John Mitchell was like the prime minister. There was excitement around the Department of Justice and the excitement came from working around people who were attracted to work on the major issues of the day. Remember, Nixon was elected in ’68 based on his desire to or based on a law and order plank and based on his pledge to end the Vietnam War.
So where are you gonna deal with the law and order plank? You’re gonna do it in the Department of Justice. So, that’s why it was such an exciting time for me. I think of those 10 years I was in Washington from ’65 through ’75 as my golden years. They were exciting times, they were a smart, dedicated people with whom I was working, and we were making a difference.
Jonathan Movroydis: Going to judges now, when Nixon came into office in ’68, did he have a judicial philosophy? And let me kind of add on to that. Today, you know, you often hear about the federal society and how President Trump has picked from the list of judges that the Steven Calabresi and The Federal Society gave him to choose from. Did Nixon, did President Nixon come in with a certain judicial philosophy like originalism in 1968? Was that even on the mind of more Republican or conservative-leaning lawyers?
Wally Johnson: Not to my knowledge, but let me put this in perspective if I can. The story that is playing out in the Senate today, and this is the second day of cardinal hearings, began in the mid-1950s with President Eisenhower.
President Eisenhower appointed two, what he thought were outstanding nominees to the Supreme Court, both of them let him down. One was Earl Warren. What happened between the mid-1950s and 1968 is that Warren showed us true colors in the sense that he moved the court as Chief Justice to a very liberal-leaning position.
Bill Douglas was on the court, Abe Fortas was on the court, Hugo Black was on the court. And there were a number of decisions, one of which I heard discussed this morning in the Kavanaugh hearings on television, the Miranda decision. And they were viewed as anti-law enforcement. So, all of a sudden, the court became an issue and Nixon pledged in the campaign to change the approach taken by the Supreme Court.
To my knowledge, there were interest groups but there were certainly no dominant interest groups. And as I have read and learned and know about the process of selection because there’s an awful lot that’s been written about it, it was more ad-hoc he and the attorney general, John Ehrlichman was usually involved, would find their way to qualifying nominees.
And that’s how we come to a point where…and I think Rehnquist was almost an afterthought as a nominee but was possibly his most significant appointee. And he and John Mitchell were working hand and glove on selecting them.
There were a whole plethora of people that were submitted, two of whom didn’t make it. If you look at the hearings, you’ll see that there are many young staff people working behind the senators. Back in 1968 and ’69, I was one of those and worked with staff people from Senator Kennedy and Senator Hart.
There were a number of very liberal senators, and they had very qualified staff people. June Ploog [SP] is one of them, Ben Wise is another one. And I can still remember that we were working very, very collaboratively but we had different goals in mind in terms of how we were supporting the staff. So I was there on Haynesworth and Carswell, but one of those faces behind the senators.
Jonathan Movroydis: Right, with the whole selection process and vetting process of potential Supreme Court nominees, it was interesting, in 2005 when Chief Justice Roberts was selected, it was almost as if the Bush administration wanted to choose the cleanest nominee possible, not only in terms of his own personal reputation but also his…the opinions that he gave before the Supreme Court. And also the public relations skills, a lot of times, of a judicial nominee comes into play as well.
This is specifically the case after the whole…in the 1980s when Judge Robert Bork was, for lack of a better term, borked and had to withdraw his name from the…or was blocked from even becoming a Supreme Court justice. What was the political climate of the late 1960s, early 1970s when the justices…you helped get through Powell and Rehnquist? Was it as divisive as the 1980s or even today in the Kavanaugh hearings?
Wally Johnson: Well, the short answer is no, and I can explain why. I’d like to answer the question by calling attention to the fact that when John J. was named Chief Justices of the Supreme Court, he was named, two days later, he was confirmed, and two days after that, he was on the bench without any dissent, without any real attention.
So we’ve gone through in the confirmation process, we’re looking at evolution which follows the culture and follows the political climate in which we live. I heard Senator Graham this morning say to the nominee, “Tell your children,” and this isn’t the exact quote, “Tell your children not to be discouraged, it’s the climate in which we live.”
The climate in which we lived in 1968 through ’75 was where there was an evolution of political attitudes among the states in such a way that while there were only about 35 Republicans in the Senate, there were closer to 60 conservatives in the Senate.
So we’re looking at a situation, Johnathan, where the philosophic base was very strong but the partisan political base was not as refined. And what we’ve seen over the last 40 to 50 years is an evolution where two things are working in opposite. One is the political base is becoming more clear, focused, but the partisan base is so locked in that it’s hard for them to actually show their support anymore for a candidate the way we were able to do back in that era with President Nixon.
So when Rehnquist was confirmed just to put an end to this part of the conversation, we only had 32, 33 Republicans because there were 2 Easterners that were more liberal but we had all those Southerners built around James Eastland who was the chairman of the Judiciary Committee from Mississippi, and they were as solid behind the president as anything you’d ever want to find.
So we had a coalition that was built in support of justice and then Chief Justice Rehnquist. The reality is that but for tying him together with Lewis Powell who was from Richmond Road, Virginia, he probably would have dangled forever and not been confirmed because he was young, and he was brilliant. And the partisan Democrats did not want him.
And they could have used the tools of the Senate to block him, but we were able to take advantage of the reality that Justice Powell was well-liked and loved and a very distinguished legal person to help push Rehnquist through.
Jonathan Movroydis: Going into each of the nominees, just kind of their profiles, and I’ll start off with Justice Lewis Powell. Who was Lewis Powell?
Wally Johnson: I remember him well. But I only got to know him during the confirmation process. He was a perfect gentleman. If you ask me who was Lewis Powell, I’d say he was a perfect gentleman, but he was clearly more than that. He was the President of the American Bar Association. He was active in the profession, he had a great academic record, and he was a partner in a major Virginia law firm.
So, he was a candidate that had been approached any number of times because I know Nixon was to have been looking for a Southerner. That’s where things went caterwaul with Carswell and Haynesworth. But with Powell, he was able to find that perfect candidate and Powell agreed at the last minute, but maybe not, that’s not the right way to say it. He agreed after much personal anguish to be nominated, and he was a very good justice. More moderate than Rehnquist proved to be but a perfect gentleman. As it turned out…
Jonathan Movroydis: I’m sorry, go ahead.
Wally Johnson: …Rehnquist was nominated before him, so in the cycle of things to get to Powell, the Senate had to deal with Rehnquist, and that was one of the benefits of having the chairman of the Judiciary Committee supporting your candidates.
Jonathan Movroydis: You had mentioned Rehnquist’s youth and brilliance. Can you give us an idea of what his background…you know, how did he go so high at the Department of Justice at such a young age, and how did he really sharpen up his scholarship?
Wally Johnson: Well, he was the assistant attorney general in the Office of Legal Counsel. And for those of your listeners who may not understand the structure of the department, the Office of Legal Counsel is just what it says it is. It wrote opinions analyzing the legal actions of the Present of the United States. So, whenever Bill, whenever a nominee was appointed, the guy that vetted the nominee was Bill Rehnquist.
And I can still remember Bill who had a bad back even at his young age, and I’m approaching almost twice that age now, he would sit in a recliner surrounded by law books. But he came there because…first of all, he graduated from Stanford, and he was at the top of this class. Coincidently, met Sandra Day O’Connor there, and they were friends for life.
But he ended up practicing mostly appellate law in Phoenix. And he would receive case referrals from other lawyers and he was a very good appellate lawyer, but he was also involved politically in political activities and Dick Kleindienst who ended up as a deputy attorney general, subsequently attorney general, championed his appointment with John Mitchell during the transition discussions up in New York.
So, Rehnquist patron was Dick Kleindienst and John Mitchell became his patron because he recognized the quality of the work he was doing. And that’s sort of how he ended up. If you would ask for a one-phrase description of Rehnquist, I’d say he was a family man.
The night that he was confirmed after this bitter, bitter battle, he went to a basketball game with his kids for his kids. Now, the rest of us went out and had a drink. And breathed the sigh of relief but Bill was dedicated to his family in every way, very down-to-earth, very caring, and very, very loyal in every way.
Jonathan Movroydis: You had mentioned…I’m sorry, go ahead.
Wally Johnson: No, go ahead, go ahead.
Jonathan Movroydis: I was just gonna say, you had mentioned earlier about the call with…the call by John Mitchell, Attorney General Mitchell to you saying that Bill needs a lawyer, that being Bill Rehnquist. Could you take us through your role in his…and through the appointment process, through the confirmation process of associate justice, and how did you personally prep the future Justice Rehnquist?
Wally Johnson: Well, I see we’re actually getting close to the end of this conversation, so I’ll be reasonably brief. Lots of people were involved in preparing Bill and working with Bill. I had a role. My role was to coordinate between the leadership of the Judiciary Committee and the attorney general and the White House legislative office to bring whatever strength we could to support the candidate in the process.
I was running back and forth from the hill reporting to Mr. Mitchell, coordinating with Bill Timmons and Tom Korologos going back to the hill and making sure that everybody who had a vested interest in this process knew what was going on and could contribute. Now, as it turned out, I also was in touch with Mr. Nixon who was not a hands-off kind of a guy.
I had met him because when I worked up on Capitol Hill, David Eisenhower, his son-in-law, was my intern. And so back in, I think, ’69, ’68, I got to know Dave and Julie quite well. And so when Mr. Nixon wanted a direct report, I didn’t call him but he would call me and confirm. Now, I was listening, I wasn’t telling him, but I was also…I was telling him in the sense that I was telling him what was going on.
And it all became a question of just like you see Chuck Grassley today trying to keep focused on the candidate, and make sure that everybody understood his strong characteristics, same deal back then without the people in the back of the room yelling. And it was easier because there was a civility in the Senate then that doesn’t seem to exist today.
Jonathan Movroydis: How did the… Rehnquist you said was considered a more controversial nominee than Lewis Powell and you had mentioned earlier kind of tying them together and having Rehnquist kind of run fullback on the Powell nomination. How did the legal community and the press react to the nomination process of Rehnquist?
Wally Johnson: No one really knew him. Now, he became well-known but the fact is if you were to have a media meter, a media meter on Lewis Powell, the legal community would 95% know Lewis and 40% know Bill. Why? Part of it was age and part of it was the involvement in the general community. Bill had the highest rankings, he was brilliant, but the world didn’t know him. So as the nominations proceeded, the Senate Judiciary Committee insisted on processing Rehnquist before they process Powell.
Well, we had this massive support behind Powell that pushed Bill through the process. And I have to thank Chairman Eastland and Roman Hruska for that. They are the ones that made that happen. They resisted the pressure to take up Powell first, and the same on the Senate floor.
We avoided all of the legislative devices that, in my mind, still make the Senate great, made the Senate great, as a body of deliberation because there was so much pressure to move Lewis Powell forward, and they both got confirmed, which of course was exactly what President Nixon was looking for, and exactly what allowed him to say in his memoirs that the…one of his greatest triumphs was having those four Supreme Court nominations confirmed.
We’re running out of time, I know that, but the hearing in the mid-80s which elevated Bill to the Chief Justice position was, again, part of this evolution in the confirmation role of the Senate because it set up the appointment Scalia and Bork. If you’d flip those two appointments, it would have been entirely different in terms of how Bork had been processed, but that could be a subject of another call at another time.
Jonathan Movroydis: Final question, what can Brett Kavanaugh and the Trump ministration learn from the Rehnquist experience?
Wally Johnson: I think that what they have learned from the Rehnquist experience is the importance of preparation. What I’ve been watching Judge Kavanaugh do is fill the evolution of the questions brilliantly. The role of the Senate and of the executive in the finding the not just intellectual qualifications of the judges which almost I have to say, to get on the Supreme Court anymore, you have to be almost certainly an appellate judge. I’d be amazed if anybody was nominated that did not have that kind of background by either party.
But the mirror boards, the preparation, the way in which you briefed every senator, those all came out of the Nixon experience without question. And I can read it as I watched the hearings today. Going back to that time when we were very…when Mr. Nixon was very, very successful in dealing with the court. And so there you have it.
Jonathan Movroydis: Our guest today was Wally Johnson, Associate Attorney General and Assistant Attorney General of the United States during the Nixon administration. Our topic today was his work to successfully shepherd Supreme Court justices Lewis Powell and William Rehnquist through the United States Senate. Wally Johnson, thank you so much for your time.
Wally Johnson: It’s a pleasure. Thank you very much.
Jonathan Movroydis: Please check back for future podcasts at nixonfoundation.org or on iTunes, SoundCloud, and Spotify. This is Jonathan Movroydis, signing off.