(3 of 9)
A fourth name, from a border state, that of West Virginia's Senator Robert Byrd, appeared on the list of prospects, but he was never under serious consideration. After Nixon accompanied Byrd two weeks ago on a one-day trip to West Virginia, the Washington Daily News reported that Byrd was the President's personal choice for Black's seat. The report was false; the White House assumption is that the Senator or his political allies floated the rumor, and to avoid antagonizing Byrd, who is the Senate majority whip, the Administration added his name to the list submitted to the American Bar Association for prior consultation. The gesture considerably heated up the outcry against the entire slate, since Byrd was once an active organizer for the Ku Klux Klan, had only earned his law degree—from night school—in 1963, and had never been admitted to the bar.
When John Harlan announced his retirement a week after Black, Mitchell and Kleindienst did not feel bound by any regional requirement. Speculation began about filling Harlan's chair with the court's first woman Justice. Women's groups lobbied for the idea, and Pat Nixon told a reporter: "If he doesn't appoint a woman, he's going to have to see me." Thus, for the first time, Mitchell and Kleindienst had to ignore their list. All the qualified women, they felt, were either Democrats or liberals.
If the Woman Cries
Finally, Mitchell and Kleindienst agreed on Mildred Lillie, a diligent and attractive California Court of Appeals judge with a firm record on law-and-order. As a Los Angeles County Superior Court judge in 1951, it was Mrs. Lillie who denied Ingrid Bergman permission to have a summer visit from her daughter, Pia Lindstrom, after the actress had left her family for Roberto Rossellini. In divorce cases, Judge Lillie practiced marriage counseling from the bench; one of her theories was that if the wife was crying at the hearing, the marriage could be saved. Her talents as a legal thinker were, many experts agreed, pedestrian.
The Administration chose a list of six candidates* to send to the American Bar Association's Committee on Federal Judiciary. After the defeat of Haynsworth and Carswell, the Administration had arranged to have the A.B.A. investigate possible nominees before their names went to the Senate. Nina Totenberg, a reporter who covers the Justice Department and the Supreme Court for the National Observer, learned that a list of possible nominees had been sent to the A.B.A.'s judiciary committee. "I put in about 50 calls to courts and law schools all over the country," says Miss Totenberg. After five hours on the telephone, she had assembled the complete list and sent it out on the Dow Jones news wire. Oddly enough, she talked frequently with Rehnquist that day but got no intimation that he was under consideration. He did not know it himself.