Conversation 011-153

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Hello.

Mr. President, I have Mr. Lewis Powell on the line for you.

Did you want to take it?

Yes.

All right.

There you are.

Hello.

You just got back from New York.

That is right, Mr. President.

Right.

I know John Mitchell has talked to you.

Yes, he has.

And what I wanted to emphasize with you was that...

the importance of the factor that he, of course, covered in his conversation, that in terms of the court and in terms of the kind of appointment we make, we think that nominating you would be very, very important.

Now, of course, I understand the

problem that you have mentioned with him, which only somebody who has the conscience that you have with regard to the court and yourself would do.

But I just wanted to emphasize what I felt, that our concern here is not, you know, the question of the number of years that are involved, but at the present time, the need for

a top-notch appointment to the court and i just want to talk to you a bit about it to see how you felt about it under those circumstances well you said the wonderful to call me mr president i i i feel very small indeed to put you to this trouble i said to john mitchell when i felt quite sincerely

have simply said that I thought it was far wiser to put someone on the court who could be sure of staying there an appropriate period of time and have the sort of influence that you as a lawyer know the great judges have had who've been able to stay there for many years.

So that was the situation that I saw had stated it to the Attorney General.

Let me ask you this.

Let us suppose that I determined, and I want to talk to John about this further, but that I determined that in view of the present situation in the court, you know, Warren Burger is extremely anxious to have a top-flight appointment at this time.

And what happens in the next five years is terribly important.

Without going beyond that, even, you know, who can look that much further?

But I determined that...

that your appointment at this time is what the court needs, would you undertake it if I were to ask you to do it?

I think the answer is affirmative, Mr. President.

I'm a fairly patriotic guy.

Oh, I know that.

I know what you've done through the years.

Right.

Well, I would like, if I may, to reserve judgment until tomorrow morning.

I'd certainly like to talk to him.

I have three senior partners in my law firm.

Mm-hmm.

And I would, of course, try to keep this completely confidential.

Sure.

In fairness to them, matter of fact, I've just walked in the door and haven't even had an opportunity to confer with my wife.

Sure, that's important.

I had a telephone talk on the phone today.

That's important, too, yes.

But I would say this, and I'm sure you'll understand the spirit in which I say it, I would be confident you could do far better than to put me on the court.

i tried an antitrust case last week one other thing i mentioned to the attorney general that i'm sure you're quite conscious of i've been active in my state and particularly in education and there will be plenty of black leaders who will think that i was not aggressive enough in

in aiding integration in Virginia.

That doesn't affect me.

No, that doesn't bother me a bit.

And I've written extensively, and while I don't think I've ever taken an extremist position on any issue, I'm sure that the Attorney General's office is all familiar with what I've written.

No, that's something that should not be of no concern, whatever.

The point that we're really very much...

worried about at the present time is that if we can have a really top flight appointment, that it will tend to pull the teeth of some of those who, you know, regardless of who we appoint, who has any kind of a philosophy that isn't on the left, they'd tear them to pieces, you see.

And that we don't want to have happen.

It seems to me that in your case, because of your preeminence at the bar, your high acceptance among your colleagues and across the country and so forth, the ABA and so, that this would be something that nobody could, well, let's put it quite bluntly, nobody could claim that you were a mediocrity.

Well, I've observed the political scene long enough to be quite confident that

Some of the elements who opposed Clement Hainsworth, and I thought he was a great appointment, would oppose any Southerner, and they would certainly oppose me.

But that is not a consideration that I attempt to evaluate.

Let us do that.

To the Attorney General and his people.

I have stated my concern.

It's a genuine one.

But if I may, I would respond to your question this way.

Let me...

Talk to my wife and two co-senior partners, one of the three seniors in the law firm.

Right.

And yet I end, Mr. President, by saying with deep sincerity that I think he would be wiser, sir, if you appointed someone else.

Yes, I understand that, and we...

In fact, as a matter of fact, the fact you say that, of course, makes you more of a... Well, I don't want to put it in that light.

I understand.

It's my best judgment.

I know.

I understand that.

But very few people can look at themselves as objectively.

Well, let me say this, that John and I have talked this over, and only the two of us.

We're not going to get you bandied around unless we're ready to go on it, you know.

Right.

But we feel that...

that this could have a rather dramatic effect in terms of, despite the age factor and the rest, it could have a dramatic effect in indicating that an appointment of a top flight man, and basically from the South, but totally qualified, could have a very good effect at this time.

As you know, the problem we have is finding others in this area who, frankly, meet the qualifications.

That's our problem.

I mean, many of them are much too old or much too liberal or, frankly, not old enough.

And that's what you really get down to.

Yes, and you have fairly determined opponents who are not going to be content with anyone whom you name.

I know that.

Unless you name someone totally...

That's right, which I'll never do.

I mean, believe me, if we have to go through every lawyer in the book, we're just not going to do that.

I'm sure you can understand how strongly I feel on that.

I think the court needs it.

That's the point.

And I know Berger feels this way.

See, with Berger and Blackman and Stewart.

Well, we have good men there.

And with

With you on it, let me say that I think, too, you've got to have this in mind as you talk this over, that the time moves a lot faster than it used to.

I mean, opinions, decisions will be made in the next five years that are enormously important on many of these issues.

The whole course of our system for many years to come may be determined in this period.

And I just want you to know that Attorney General and I feel that if you can see your way clear to do this, that we'll take the responsibility on the... At first, don't be concerned at all about the political side and all the rest.

That's our job.

But in terms of the...

And talking to Berger, my goodness, when you look at the workloads of some of our prison justices, and I don't need to name them, you can guess who they are.

It's just unbelievable what the poor man goes through.

And you could carry half a load and do more than some of them do with a full load.

Well, I doubt that.

Well, I think so.

Well, will you give us that consideration in having in mind the fact that we've determined that we would like to have you?

and if you can do it fine and and if you could give john a call and give him your decision in the morning i would appreciate it i will call him in mid-morning it may not be possible for me to oh no hurry no no but but may i say that i just want you to know that we strongly feel that and we we've considered all these things and consider them very carefully that you are about what the court needs at this point

in view of all the hullabaloo that's been raised about mediocre people and the rest.

I mean, I get back constantly to the point that they can never take you on on that point.

And I feel strongly about that myself.

Although, as we all know, whether a man is mediocre or not isn't determined until after he's been on that court a while.

That's right.

History proves that.

As a matter of fact, I was looking over some of the editorials on Berger when we named him, and several said, well, he was mediocre.

Well, who knows?

He was mediocre until he was on it for a while.

And he's proved to be a great Chief Justice, in my opinion.

Well, I wish you could have seen him in England.

You've been very proud of him.

Is that right?

Yes, he was great there, and all Americans were proud of him.

There were 12,000 of us over there, including the wives, and the English really respected him.

Well, just let me say that...

This is the way we feel.

We would like for you to weigh that very heavily into your decision and your talk with your wife and with your partners.

And if you would give John a call at your convenience tomorrow, sometime before noon or around noon, that would be fine.

I'll call him before noon.

Fine.

All right.

President, let me say, however this turns out, that I'm ever so grateful is a poor word, but I can't think of a better one.

You're taking the trouble personally to call me.

Well...

That shows you how much we want you.

Thank you very much.

All right, thank you.

Good night.

Bye.