Nixon phone call with Mitchell on Supreme Court and Lewis F. Powell Jr.

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Hello.

Mr. President, I have a report in both areas.

We sort of knocked Howard off his feet.

I was surprised.

As he points out, the $60,000 salary gets down to $30,000 pretty quickly after that text bite.

Yeah, there are certain prerequisites, though.

You know what I mean?

It's for life, John.

You know what I mean?

You can forget your damn insurance and a hell of a lot of other things.

Oh, I'm forgiving him all of those.

And a few on top of it pointing out that...

Mr. Justice Douglas seems to have made quite a bit of money through his writings.

He can write women.

Make speeches.

Yeah.

Good.

Now, what about the other fellow?

He...

I've got him.

He has talked to his doctor at great length.

he is very much concerned about his eyesight he says that he has had duration his reading uh well put it put it succinctly he thinks that it would be a fraud on the people and uh because he doesn't know whether he'd be there three years or two years or four years or what it would be

He's a very conscientious individual, and I tried to point out to them that the fact that he got there might be the most salutary thing for the people of this country.

He, of course, I think if you called him up and asked him, he would do it if he was blind.

The question would be, and I think as to what might come out of the fact that knowingly you sent him to that court with this type of an impediment,

of the recent Harlan situation.

Yeah.

He, of course, does not have the same problem that Harlan has, but he still has...

He may be overly conscientious about how much he has to read and all that sort of thing.

It is quite possible, but he says he still has to ration his reading, and while the doctor says it's possible that his eyes would last for 10 years, there's also a possibility that they would, with excessive use, would fail in a shorter period of time.

Mm-hmm.

so that um well let's pursue the baker run at least let's get one there if we can i don't know i i don't know i paul is just so good at it absolutely i just must i just think the fact he'd raised such a thing indicates that we ought to brought oppressive well he is that type he's the finest individual i think i've met in the bar

Damn it.

Two years of him is worth more than 20 of a lot.

I would believe this would be the case, and particularly at this time.

At this time, it would give us a terribly prestigious appointment and missing that.

I frankly think you ought to press him on a John.

Will you do that?

And I'll call him if necessary.

I'd be glad to.

But I really feel that the point is that I think that right now the court needs him.

That's the point.

And we need him for however length of time it works out.

And also...

This is something that he just really ought to undertake.

I wonder if you'd like to talk to him and get your own assessment of this high-state business.

Well, would I have him come in or do it on the phone?

Do it on the phone, I would think, because you'd want to do it as early as possible.

Where is he, in Richmond?

No, he's in New York, and the White House operator's been getting him for us.

I think a...

full understanding on his part which I've tried to convey to him of the timeliness of his acceptance coming from you might you know be a weight in the judgment factor all right fine I'll give him call all right sir and I expect to hear back from Howard before five and then we'll the Baker thing can be a good one now if we don't if you get Howard I can

and the Lilly thing strikes out, I suppose that you can... Well, it may well be to bite the bullet and go with Mulligan because of the age factor.

Well, that's the thing that I'm thinking.

I just think the Mulligan thing is, you know, he's thought of him originally, and God damn it, so he's mediocre, or he's not mediocre in my opinion.

So he's the dean of a law school.

Absolutely.

So that's a hell of a thing, John.

It is with all the other deans that they've been trying to push on us with all their liberal philosophy.

Everybody else says a dean's a big thing, right?

That's correct.

So he was the dean of Fordham, a good Catholic law school, and they say, well, that isn't such a good thing.

God, I don't know.

And he's practiced law.

Yes, he has, probably more so than most deans have.

There is the other factor, of course, of the appellant from Mulcahy.

You know, he comes from that same community and has been friends with him over the years.

Well, we're not doing it for that reason, good God.

He's already on the court, on a circuit court.

Right, and he got on there without any flack.

Would it be out of the way at all?

I don't know.

No, it wouldn't mean anything.

I was going to say Berger did have him on his list in any event.

I don't think you ought to ask Berger about it.

Berger keeps coming back, has come back to him in our conversations.

I wonder if you just put it to Berger flat out.

I mean, just say, look, you remember that we checked and he didn't get the top rating from the bar.

would you still think that he would pass muster?

I think if he passed muster in Berger's mind, that would mean something to me.

Well, he has, of course, and I think that Berger's mind is so mixed up now, and that's not where the dam flies as far as the public acceptance is concerned.

My view is this, that if we could get the, I think, if you see Howard Baker or

They're not going to say it's distinguished, but he's certainly not too damned undistinguished either, is he?

I don't see how they can charge in the case of his sitting United States senator that it's undistinguished when he has had this law practice.

Of course, the Byrd and the Pop thing were centered around mainly that they'd never really practiced law.

And Howard has had a good, solid...

General law practice, criminal law, all types of civil law practice from 49 until 66 when he went on the bench.

49, 66, 17 years of it.

So that's a hell of a lot more than Poff ever came close to.

And he had a better forum.

Howard has argued cases in the Sixth Circuit and the Eighth Circuit.

And Howard's a senator and Poff is a congressman.

A congressman, that's absolutely correct.

And, of course, Howard comes from Knoxville, which is a relatively metropolitan town.

It's distinguished from whatever that jerk or place Richard Dick was from.

So I think that's quite a difference.

Well, I tell you, let's push him.

That's for one.

But, God damn it, I don't know.

Other Mulligan wouldn't be there.

Is it Mulligan, his name?

Mulligan, yep.

Yes, sir.

Richard.

William Hughes Mulligan.

I guess he was named after the Supreme Court Justice.

Why don't you talk to...

lewis powell and see what you want me to in other words just to see whether he yeah what what feel you get on all right fine he might be uh you know okay maybe proper and talking to me but when it gets down to the nut cutting it may be a little bit different well if we if we had our druthers wouldn't we really rather have him and yes i would say so if we can't get him then we might take baker and mulligan uh

Well, I think that personally would be as good as anything because Mulligan is on the court and he has been the dean.

And while some of them up there that have been recommended have sat longer, I don't think that we're going to get any real credit for it.

Along the court and being a dean, they'd say undistinguished.

So that isn't too damn bad.

Who's going to argue that point?

I think we could fight pretty hard on that issue, couldn't we?

I would certainly think so.

The dean aspect of it, the fact he worked in the Constitutional Convention and the rest.

Okay, fine.

All right, sir.

Nixon phone call with Mitchell on Supreme Court and Lewis F. Powell Jr.

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Nixon Library Finding Aid

Also recorded on October 19, 1971

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