IN the new scale of Nixonian surprises, it registered only as a medium astonishment. Yet the President's nominations to fill the two vacant Supreme Court seats were delivered last week in a shrewd performance that left his critics, for the moment, in contortions of simultaneous dismay and relief.
For days a bitter storm had been rising over the evident mediocrity of the candidates the President was considering for the distinguished chairs of John Harlan and the late Hugo Black. As Nixon settled behind his desk in the Oval Office to announce his choices over television, he was almost universally expected to appoint Little Rock Lawyer Herschel Friday and California Court of Appeals Judge Mildred Lillie—nominees widely regarded as obscure and unsatisfactory. It looked like Haynsworth and Carswell all over again, some Senators predicted, with another vitriolic fight over confirmation. "As a group," Edward Kennedy had said, the six candidates Nixon was known to be considering reflected "utter contempt for the court."
In a little more than a quarter of an hour, Nixon overturned these expectations and very probably accomplished an enduring the change in American judicial history. In Assistant Attorney General WIlliam H. Rehnquist and Richmond Lawyer Lewis F. Powell Jr., the President appointed men who confirm to his standards of "judicial conservatism." Yet, especially in comparison with the dimmer talents that he had been considering, Rehnquist and Powell possess sufficient legal distinction to still most professional criticism and make their Senate confirmation seem probably.
If confirmed, Rehnquist and Powell will join the President's two other appointees, Chief Justice Warren Burger and Justice Harry Blackmun. The Old liberal, activist Warren majority has now shrunk to three: Justices William Brennan Jr., 65: Thurgood Marshall, 63; and William O. Douglas, 73. Holding four seats, the conservative Nixon Justices will also be a minority, with the balance of power exercised in the middle by Potter Stewart, 56, and Byron White, 54. But the bench will have been heavily tipped to the right by the Nixon bloc. It is now virtually a Nixon Court.
The process that eventually yielded Rehnquist and Powell last week began shortly after Nixon took the oath of office. Knowing that he would have at least one seat to fill—Warren had announced he was retiring—Nixon asked Attorney General John Mitchell to prepare a list of names consideration. For several weeks early in 1969, Deputy Attorney Richard Kleindienst and his aides researched the records of lawyers, judges, and law professors across the nation. They were guided by three basic criteria. The first was Nixon's preference for prior judicital experience—a requirement he waived last week for Rehnquist and Powell, neither of whom has had experience on the bench. Next, the president wanted comparative youthfulness; again, Nixon relaxed the standard case of Powell who is 64*. (Rehnquist is a comparatively youthful 47.)