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Conversation With Newsmen on the Nomination of the Chief Justice of the United States

May 22, 1969

THE PRESIDENT. Let me take a moment to tell you what I thought would be useful for you on this occasion. We have never done this before. Some of you may remember the days when the custom was to have the press conferences in this room, and when the custom also was to have the President quoted indirectly in the third person.

Since we have not announced a press conference, I don't, of course, want the people who are not White House regulars to feel that they have been cut out of something, but I want to try this as an experiment which, from time to time, on a major issue, we may try again.

What I would suggest as the format would be this: That we will make, for those of you who are taking notes, we are going to record it all and Mr. Ziegler will have it run immediately so you will have a complete transcript of what I am saying, and of course, of your questions and the answers as well.

However, as far as the way you write it, I would like for you to write it as: "In an informal meeting with members of the White House press corps in his office, the President discussed the appointment of the Chief Justice, and the President said this, he said that, he said that," but do not use it as a Q and A, a direct quote procedure.1

Q. You want us to use third person then?

THE PRESIDENT. Third person, fight. But you can use everything I say; everything is on the record. But if you could put it in the third person, that the President said that political clearances were not involved in the Supreme Court, then a reporter asks whether or not he had talked to the Chief Justice-designate before, and the President said that he talked to him for the first time, as I will indicate--like that.

If you could cover it all that way, I think that will give it to you all right.

As to the time for release, let me say, this is not a hot news story in the sense of immediate news, and I think it is one that you will want to get the full text to work on, and I would like to suggest that we make it just a flat Friday a.m. release.

Q. 6:30 p.m.?

THE PRESIDENT. 6:30 tonight. In other words, the people who have recordings can run it on that and the newspapers and wires, 6:30 a.m. release. Not to tell you about your business, but for the most part, you will find probably in the Q and A also, what I would say, matters that would be of great interest in think pieces for maybe a couple of days after that, but that is for you to judge.

All of it is for release, to the extent you think it is worth releasing, at 6:30. Some of you, I am sure will find that this does not, however, have immediate news impact. It is more, shall we say, color and background.

Let me begin by trying to spell out the processes that I went through in making the decision. As you know, at the time of the exchange of letters with the Chief Justice, before the inauguration, I knew that I would have this decision to make.

I also knew at that time that I did not have to make it in a hurry. In fact, I thought it was very wise not to make it too soon, because I thought that it would not be a proper mark of respect for the Court and for the Chief Justice to have a nomination go down, say, in February or March, and then have possibly the Senate hearings and the like at a time that the Court was sitting.

So, from the beginning, while I did not pick any certain deadline date, I felt that the decision should be made before the term of Court ended so that the new Chief Justice could be indoctrinated in effect about the rules of the Court and so forth, by the outgoing Chief Justice. But this turned out to be the right time. That is why it came in the middle of May, although it could have come May 1. I have always thought between May 1 and June 1, but that is how this came about.

Now, my thinking with regard to the kind of man that should be Chief Justice, I spelled out in the campaign. I want to differentiate two things here: There is a different standard for a Chief Justice than there is for a Justice, not in terms of intellectual qualifications, not in terms of knowledge of law, not in terms of the character, and that sort of thing, but in terms of what I describe as a leadership quality. The Chief Justice is the leader of the Court. He is the chief administrative officer of the Court.

In talking to Chief Justice Warren, for example, I find that there is an enormous amount of administrative responsibility which rests with the Chief Justice. So the Chief Justice must be a man who can be an equal to all the other Justices in terms of education, and above all else, however, have that, if I may use the term, that special quality in addition, of commanding the respect and being able to lead the Court.

He cannot always, as we know, get unanimity, and let us get one thing very clear: the Warren Court is not the first one that had 5 to 4 decisions. When I was studying law in 1930, we all remember there were 5 to 4 decisions, when four dissented and five voted the other way.

But this leadership quality is a factor I was looking for, beyond the bare essentials, which I or anybody would look for in appointing a judge to the Supreme Court of the United States.

There are several things that I think should be clarified at the beginning. There were no political clearances in this case, and there will be none for any judges to the Supreme Court that I appoint. By a political clearance, I mean that we do not clear--I think Judge Burger comes from Minnesota and now lives in Virginia--we did not inform or clear with either the Minnesota or Virginia Senator. They knew nothing about it and we will not do that with any others.

With regard to Circuit Court and District Court judges, we do clear; that is the custom. I think the custom has varied with the Supreme Court, but I feel very strongly that Supreme Court Justices should be appointed by the President without going through the political processes.

I say that because I think the Supreme Court must be above politics. Now, this does not mean that the Supreme Court judges are not Republicans, as was Mr. Burger when he was named, or Democrats, as, let us say was Justice [Hugo L.] Black when he was appointed. But I think it is very important that once they are appointed, and once they sit on the Court, that they sit there without owing that appointment to any political clearance process.

So there was no clearance with any Senators, no clearance with the National Committee, and there will be none as far as any other judges I appoint.

There was also no ABA clearance. Now, this is a technical fact which I suppose somebody here that covers the Supreme Court knows about. The American Bar Association is in town now. There had been some noises made to the effect that the ABA Committee should be consulted, as they are, as you know, on Circuit Court and District Court judges. We run it by the ABA, as I understand.

There was some talk, particularly after the Fortes thing came up last year,2 that the ABA ought to be consulted on Supreme Court appointments. I decided against that. I do not think this is a matter that should be submitted to the American Bar Association, and I did not have it submitted.

I think that another factor that should be discussed is this: I noticed Arthur Goldberg's 3 statement with regard to whether or not there was to be--as some members described it--a Jewish seat on the Court. I subscribe to Arthur Goldberg's conclusion. I do not consider that there is a Jewish seat or a Catholic seat or a Negro seat on the Court. I made this appointment and I will make other ones based on the consideration of their competence. I will see to it, of course, that judges or people who might be qualified, representing all segments of the country, come before me, but in the final analysis the Court will not be used for the purpose of racial, religious, or geographical balance, at least not while I am here.

Now, because of the Fortes matter, I determined that the appointee should not be a personal friend. I determined also that if possible, I should avoid appointing somebody who would be a political friend or, using the Washington vernacular, "crony."

I felt it was vitally important that it be a man who, if possible, could be approved by the Senate without violent controversy, and if possible, with a strong--well, not unanimous--but a strong vote of approval.

It seemed to me that the Court, at this time, needs to have, particularly at the Chief Justice level, a man who has wide support in the Nation and wide support in the Senate. This does not mean that you could find any man who would satisfy that great spectrum of views in the Senate on economic and social philosophy or even legal philosophy, but I do feel that in this appointment I have been able to find a man who will command respect in these areas that I think are so important.

Now, during the campaign, I set forth, as some of you may remember, my own philosophy with regard to what the role of a judge should be, a judge particularly of the Supreme Court, and for that matter, of other courts where they interpret constitutional matters, where they rule on constitutional cases, as distinguished from simply civil cases involving parties that don't have constitutional issue.

I said, and I think I used the term, that I was a strict constructionist. Let me explain that in terms of this appointment, and also in terms of my study of the Court for years. I think one of the best examples to prove that point is the career of Mr. Justice [Felix] Frankfurter. Mr. Justice Frankfurter was a liberal and was widely known as a liberal and adviser to Presidents in that respect, and of course, as a teacher at the Harvard Law School.

When he went on the Court, his first decisions--and it was only something that happened, the way it happened--the first decisions that came down involved the Federal Government expanding through the Congress its legislative activity in fields where individuals raised the constitutional question as to whether the Congress had the right to go that far.

Mr. Justice Frankfurter upheld the right in several of those cases, for the Congress to legislate. It happened that those cases for the most part involved the Congress legislating in a liberal direction.

Then later in his career, as the trend of the cases before the Court turned in other directions, a number of cases came before the Court involving State governments moving in a conservative area, State legislations passing legislation which basically had conservative overtones.

Mr. Justice Frankfurter, to the great surprise of many who had cheered him as a liberal Justice, then proceeded to uphold those laws, also.

That is the kind of a judge that I was looking for here. I am not concerned about whether the man is a liberal or conservative in his economic or social philosophy. My interest is how does he regard his role with regard to the Constitution.

I happen to believe that the Constitution should be strictly interpreted, and I believe, as did Mr. Justice Frankfurter-and I just use him only as an example, because most of the judges in our courts through the years have held this philosophy-Mr. Justice Frankfurter felt it was his responsibility to interpret the Constitution, and it was the right of the Congress and the right of the State legislatures to write the laws and have great leeway to write those laws, and he should be very conservative in overthrowing a law passed by the elected representatives of the people at the State or Federal level. I use this as an example.

Now, before coming to Mr. Burger, specifically, his philosophy and what it is, let me tell you, we will give you the blow- by-blow as to when it was decided. You are all entitled to know this.

First, the only man that I discussed the appointments to the Supreme Court with in any detail was the Attorney General. This was quite deliberate. I told all the Members of the Senate and the House, Democrat and Republican, and many of my personal friends who were lawyers around the country, and nonlawyers who wrote me, that I wanted them to submit their recommendations and their arguments to the Attorney General for his evaluation.

The Attorney General, however, had the responsibility not to recommend a man but to submit the case for each man to me and then I made the decision. I did this because I did not want to become personally involved in the contest, the very lively contest among several very well-qualified people for this position.

Every President works differently, but as you notice I kind of like to be detached and stand back from it and decide as coolly and objectively as possible.

Now, I think you will be interested to know what happened with regard to several of those that you speculated about very properly.

For example, a man who was perhaps my closest friend among all of those who are considered was Charley Rhyne.4 He went to law school with me, as you know, and was head of our citizens in '60 and '68 and has argued cases before the Supreme Court; a very distinguished constitutional lawyer.

But he was a personal friend and I felt that the appointment of a personal friend to the Supreme Court, particularly at this time in our history, would not be in the best interests of the Court.

Then something that I think should be reported to you with regard to four other men who were under consideration and what they did and how, on their own initiative, they affected my decision.

Incidentally, in these times I think it is quite a tribute to each of these men in its own way. I would characterize the four as four men who, at this time in their lives, each one of them would probably rather be Chief Justice than President of the United States. So that shows you how much they would have wanted to be Chief Justice. And yet each one of them asked me not to consider them, either directly or indirectly.

Some of them I did not talk to personally. I will not indicate which, except for one I did talk to personally. Each one of them let me know they did not feel they should be considered because they felt it would not be best for the Court for any one of them--for the individual--to be on the Supreme Court.

The first I will mention is Herbert Brownell [U.S. Attorney General 1953-1957]. You all know my high regard for him. You know he was the man, next to Attorney General Mitchell, who was my closest adviser in selecting the Cabinet. I think he would have made a superb Chief Justice. But former Attorney General Brownell said, quite directly in that candid way of his, that he thought if he were nominated that there would be a controversy in the Senate--not because of any personal criticism of him, but because of the roles he played when he was Attorney General.

I told him on that score that I was sure that the Senate would approve the nomination, but he felt it would not be in the interest of the Court to have a sharp partisan or personal controversy and, therefore, asked not to be considered.

Tom Dewey [Governor of New York 1943-1955]. Tom Dewey wrote himself out because of age. He said that he felt the man who should be Chief Justice should be able to serve at least 10 years in that position. And there may have been other considerations. I did not discuss this with him directly, but his name had been mentioned and he ruled himself out.

Mr. Justice [Potter] Stewart. You may have noted he was on my appointment list recently--I guess he was. Well, he did come in. What is the matter with Ziegler, anyway? [Laughter]

He asked to come to see me. This was 2 or 3 weeks ago. It was really quite a moving experience for me to see this young man--I say young man, he is 45-who knew that he had tremendous support for this position, to come in and he said that he felt that it would not be in the best interest of the Court to appoint a sitting judge on the Court to Chief Justice.

He went over the history of the Court and said on only two occasions has it happened. I don't recall the two, incidentally. But he said that, generally speaking, because of the special role that the Chief Justice has to play as the leader of the Court, it would be very difficult to take a man from the Court and put him above the others. He said it would be better to bring a man from the outside rather than one from the Court. And with that he took himself out and asked me not to consider him.

For a man to do that, and I use three examples of men ruling themselves out-and the fourth man is Attorney General Mitchell.

Attorney General Mitchell had very great support from the beginning when we first discussed it. He said he did not want himself considered.

And, incidentally, he is superbly qualified in my view. He is my closest adviser, as you know, on all legal matters and on many other matters as well. I would say that I don't know of any man in the administration whose views on the law are closer to mine than Attorney General Mitchell's.

But he said quite bluntly that it would not be good for the Court to have a political friend, as distinguished from a personal friend in the case of Charley Rhyne, appointed as Chief Justice at this time. So that was that.

Now, we came to the situation with regard to Mr. Justice Burger. I have felt for a long time that we should elevate Circuit or District Court judges who have proved themselves on the line of battle, on the firing line, to be capable, able judges who have a track record.

I think it is well, when they are qualified, to elevate them to higher courts-from the District Court to the Circuit Court or a Circuit Court judge to the Supreme Court. It has been done in some cases, but more often than not Circuit Court judges do not go to the Supreme Court and very, very seldom does a judge of the Circuit Court go to the Chief Justice. I think this is one of the first times.

Looking over all the Circuit Court judges in terms of age, 61 or 62, but in terms of what I mentioned last night, his legal qualifications, in terms of his background, integrity, I determined over the weekend at Camp David, I gave a lot of thought to it, that we should move toward Mr. Chief Justice--well, who will be Mr. Chief Justice--toward Judge Burger.

This will be hard for you to believe, but at no time over these past few months up until 3 minutes before we went downstairs to meet the press did I talk to Judge Burger. He did not know that I was considering him.

The first conversation that I had with him was when he came upstairs to meet me prior to our walking down to be introduced to the press.

As far as the decision being made, on Monday morning I called the Attorney General. I also called him from Camp David to discuss it. And I said that quietly I wanted him to begin the investigation processes that are necessary--I am referring to the FBI investigation that was made and also the investigation of other matters which might come up in a Senate hearing.

The Attorney General made that investigation and then on Wednesday at approximately 12:30 the Attorney General had then met, was meeting at that time at my request, with Judge Burger. And he called here and said that Judge Burger would be prepared to accept the appointment.

It was then that I made the decision that we would announce it at the press conference that evening and you were informed, of course, at that point.

The only others who were informed--I should point this out. I did not discuss this appointment with any members of the White House Staff, not with Ehrlichman, not with Haldeman, not with Burns 5 or any of the others that might be interested, and with no Cabinet officers except with the Attorney General. As far as others who were informed, only these were informed.

Naturally, the Attorney General, in making the investigation, while he did not inform Mr. Hoover [Director of the Federal Bureau of Investigation] that Mr. Burger was being considered for Chief Justice, he did ask him to make an investigation and, naturally, Mr. Hoover, I guess, would probably surmise that we were thinking in those directions.

Then in the afternoon, at my direction, the Attorney General informed the Chief Justice, Chief Justice Warren, of our decision and he informed the Vice President. He informed Governor Dewey and he informed Mr. Brownell.

As a matter of fact, I informed Mr. Brownell. I called Mr. Brownell. And he informed Mr. Dewey and the Chief Justice.

We did not inform other members of the Court because we felt it was only proper to inform the Chief Justice under the circumstances.

One final point, and I know you will have some questions, a number of Senators and Congressmen did let their views be known to me--Senator Allen, Congressman Arends, Senator Griffin 6--but more in general terms, and I referred them to the Attorney General.

The final point I wish to make is with regard to the relationship I now have with Judge Burger, and I think it will show why I did not want to see him beforehand. While my study of his opinions and my knowledge of his views would indicate that we happen to share many views, I think it is vitally important that the Chief Justice and all judges of the Supreme Court know that they are absolutely independent of the Executive and Legislative.

He will owe his appointment to the fact that I appointed him, but he is to sit there and consider these decisions, these great questions, without any pressure from the White House, without any understanding as to what is expected from him.

I suppose because I am a lawyer and have had minimal experience, but some, before the Supreme Court on a couple of occasions, that I feel perhaps more strongly on this than maybe some other Presidents. But because I feel so strongly, I want the relationship between the President and the Chief Justice and the other judges to be one which is cordial but at arm's length and that is why prior to this time I did not sit down with Judge Burger and go over--well, "How do you stand on this?" and "How do you feel about this?" and "What do you think about this?" What I was interested in was his background, his general legal philosophy, which, as I said, to me is close to mine.

And now, if he is confirmed by the Senate, he will be his own man which I think is the right thing.

Q. Mr. President, the second criteria you mentioned in the campaign had to do with general views on criminal law and the rights of the accused. How did that figure in this?

THE PRESIDENT. Judge Burger has, in the Circuit Court of Appeals of the District of Columbia, has written some opinions and also he has written articles and made speeches that I think reflect what is now the minority view or has been the minority view of the Supreme Court. It happens to be my view. I would hope it would become the majority view. But when he gets to the Supreme Court, he will be his own man.

Q. Mr. President, did that figure in it? Aside from you going along with the strict constructionists, this is the law, isn't it?

THE PRESIDENT. When I talk about the legal philosophy of the judge, I am referring to his whole legal background, his opinions in all fields. He is a strict constructionist as far as the Constitution is concerned; and incidentally, when you talk about these criminal law cases, that involved strict constructionists because that involves the extent to which the Constitution-what an individual's views are with regard to the Constitution, whether or not you interpret that in a, shall we say, in a very liberal way or a more strict way.

I would say that Judge Burger, in these 5 to 4 decisions, would have been with the four, rather than the five--well, he said so.

Q. Mr. President, have Mr. Mitchell, Mr. Rhyne, and Mr. Brownell, by reason of their close personal friendship with you, also been eliminated from consideration of the seat left vacant by the resignation of Justice Fortas?

THE PRESIDENT. I think so, yes. I have not told them this, but I think that the Supreme Court at this time needs the infusion of judges of which there will be no question of personal friendship, strictly political considerations, or great controversy. For that reason they are not under consideration.

Q. Mr. President, are you considering the other one, the Fortas seat?

THE PRESIDENT. Very deliberately. I would say with all deliberate speed; but I believe it is important to have the Chief Justice considered and acted upon before we move on the other one, so I think that is the only thing I will say. I don't want to get the two matters mixed up.

Q. Mr. President, do you anticipate that you might have an appointment before the new term of the Court in October; all things being equal do you think that?

THE PRESIDENT. Oh, I have to, yes. We would have to, because they would not want a vacancy. But on the other hand, I would expect confirmation to come in June--I would hope it would--and after that I will then sort out the second spot that has to be filled.

Q. When you said the Court needs an infusion of judges, did you mean that literally; that the next appointee would come from the Appellate or District Court?

THE PRESIDENT. No. Well, Appellate or District Court--without completely fencing myself in--Appellate or District Court experience, in my view, is a very strong recommendation, but I am also considering individuals who are not on the Appellate or District Court, but who have substantial constitutional law credibility.

In other words, as you can imagine, you have people in the law schools who are legal scholars of the first rank, and you have some constitutional lawyers in private practice, so I am not ruling that out, but as you can tell from this appointment, naturally I would say that Appellate and District Court experience gives an individual an edge, but not necessarily the job.

Q. Mr. President, you spoke of Mr. Justice Stewart excluding himself from any possible consideration because of his feeling that a sitting Justice should not be made Chief.

I am not quite clear on whether you shared that feeling and whether that was a factor.

THE PRESIDENT. Yes, I did. I think, as I look at the Court--let me go back to this. You see, you also do these things in terms of your background. I think of the great judges that I remember--Holmes, Brandeis, Cardozo--I think each of those was a great judge. I don't think any one of them would have been a great Chief Justice. They were individuals and usually dissenters, which was to their credit, in my view.

I happen to agree with most of the Holmes-Brandeis dissents in those periods, but on the other hand, they were men who were so individualistic that they could not have brought the Court together, to coalesce, to lead. Incidentally, let me say, whatever disagreement I may have expressed or others may have expressed with previous Chief Justices--take Warren. When you look at them--Warren, Stone, Hughes, all of them--each in his way, apart from his individual views in the law, had a leadership quality which enabled him to lead the Court.

Now, let me say how that relates to Potter Stewart. If Potter Stewart had been in the Circuit Court, you could have taken him then and elevated him. But when he has worked with these men, as an equal, you see, and he has been in all this period of time, I think it is--and we talked about it at some length--I think it is very difficult for them to move him from that position to the first among equals.

Q. Mr. President, if you get that 5 to 4, have the minority turned into the majority on such things as these criminal cases we were just discussing, would it be your hope that some of these previous decisions like the Mallory case and the Durham case could be rewritten or overturned?

THE PRESIDENT. I wouldn't get into that, because when I talk about 5 to 4 decisions, I should point out that the Court is not that easy to predict. I think the piece that Kilpatrick [James J. Kilpatrick, syndicated columnist] had recently shows that the Court is quite individualistic. Take Potter Stewart, John [M.] Harlan, Black, for example, has moved to a strict constructionist in some cases.

I don't think this appointment should in any way be interpreted as saying it has been 5 to 4 one way and now it is going to be 5 to 4 the other way. But every President naturally, by his appointment to the Court, affects the direction of the Court. He affects it in a certain way, but he does not affect the individual decisions. He cannot do that because I cannot emphasize too strongly, that when lawyers begin to consider facts, they are very unpredictable.

Could I add one thing for the ladies here? I was sure somebody would ask me this: "What did he say when he came in?" Well, he came upstairs, and he is really very nice. I hope you get to know him. He and Chief Justice Warren are alike, very decent men and good men.

I first got to know him, strangely enough, in 1948. I said 21 years--well, that was the year. Some of you may remember there was a convention in Philadelphia, and he and George [E.] MacKinnon, who is now on the Circuit Court and was on the Labor Committee---they were great [Harold E.] Stassen men.

So I was there as a Congressman attending the convention and got to know him. In 1952 he helped to bring the Stassen delegation over to Eisenhower. But, nevertheless, I have only seen him off and on, never socially, through the years. When I say socially, except in a large group, although he has written me, and I have written him on occasion. In fact, I wrote him when I thought he made a good speech a couple of years ago. So much for that.

So I had not talked to him at all about this, and I remember I walked out of the Oval Room upstairs and he was just coming out of the elevator. It was three minutes until game time. [Laughter] He stood there and I walked over, and I said, "Well, will you take the job?"

He thought a moment, and incidentally, he is a humble man, but he said, "You know, I know that question is somewhat facetious, but as I thought about it this afternoon, I had some concern."

Of course he was going to do it. He had said he would do it, but he recognizes the enormous importance of it. He said, "Sometime when we have more time to talk, I want to thank you for this."

Then I apologized to him, and I said, "You know we will have you and your wife up to meet the members of the Cabinet and their wives, and have a cup of coffee right after the ceremony." I said, "I wanted to apologize for the fact that we couldn't have you to dinner because it would be too many."

He said, "Don't worry about that. After what I've been through this afternoon, I am just going home to go to bed." And I think he did.

Reporter: Thank you.

1 The text of these remarks was later released for publication in this volume.

2 See Public Papers of the Presidents, Lyndon B. Johnson, 1968-69, Item 339 [2], et seq.

3 Arthur J. Goldberg, former Associate Justice of the Supreme Court of the United States, and former U.S. Representative to the United Nations.

4 Charles F. Rhyne, former president of the American Bar Association and head of Citizens for Nixon Committees in the 1960 and 1968 presidential campaigns.

5 John D. Ehrlichman, Counsel to the President, H. R. Haldeman, Assistant to the President, and Arthur F. Burns, Counsellor to the President.

6 Senator James B. Allen of Alabama, Representative Leslie C. Arends of Illinois, and Senator Robert P. Griffin of Michigan.

Note: The conversation with newsmen began at 11:43 a.m. in the President's office at the White House.

Richard Nixon, Conversation With Newsmen on the Nomination of the Chief Justice of the United States Online by Gerhard Peters and John T. Woolley, The American Presidency Project

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