The Supreme Court Under Siege: The Battle over Nixon's Nominees
Throughout the 1968 primaries and the presidential campaign, Richard Nixon chided the Supreme Court for "hamstringing the peace forces" in their fight against rising lawlessness. 1 To white southerners especially, Nixon implied that the Court had gone too far in attempting to redress the claims of blacks and other minorities. Having campaigned against the Court, President Nixon could plausibly argue that voters had given him a mandate to change the personnel and, consequently, the ideological direction of the Supreme Court. He ultimately claimed the exclusive right to determine who sits on the Court. The fate of his nominees, however, demonstrates the legal and political checks on the president's ability to control the composition of the Supreme Court.
Chief Justice Earl Warren's resignation provided the first opportunity to reconstitute the Court. While a number of well-known figures were rumored to be Warren's successor, 2 the job went to a "dark horse" candidate, Judge Warren E. Burger of the U.S. Court of Appeals for the District of Columbia Circuit. Although Attorney General Mitchell had been given the task of finding candidates, Burger was a Nixon discovery. 3 Indeed, the president called Burger's nomination the "most personal choice of [his] Presidency to date." 4
Burger, a midwestern, middle-class Republican loyalist was the sort of self- made man Nixon admired. He earned his law degree at night school and then joined a prominent St. Paul law firm. Service in the Republican cause paved his way to Washington, D.C. Burger was Minnesota Governor Harold Stassen's floor manager at the 1948 presidential convention, and in 1952 he helped General Dwight Eisenhower win the party's nomination. Upon his election, President Eisenhower appointed Burger assistant attorney general in charge of the Claims