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THE TENNESSEE LAWYER WHO TURNED DOWN A SEAT ON THE UNITED STATES SUPREME COURT

Posted on September 27th, 2018

The following is my column from the September, 2018 issue of the Tennessee Bar Journal.  It is reprinted with the permission of the Tennessee Bar Association.

Next to the Presidency, it is the most powerful position in the United States government.  And unlike the Presidency, it is a position one can hold for more than eight years.  In fact, once your appointment is confirmed by the United States Senate and you are sworn in, you can hold the job for the rest of your life.

The position is, of course, Justice of the United States Supreme Court.

It is no doubt a dream job for many lawyers.  

But nearly fifty years ago, a great Tennessee lawyer was offered the job of United States Supreme Court Justice, and he turned it down.  The great lawyer was Howard Baker. 

In 1971, Howard Baker was a young freshman senator.  He had made Tennessee history in 1966 by being the first Republican ever elected to the United States Senate from Tennessee. 

He was enjoying serving in Congress following in the footsteps of his father, Howard Baker, Sr., who had served in the United States House of Representatives and his father-in-law Senator Everett Dirksen, who had served as minority leader of the United States Senate. 

But in September of 1971, Senator Baker got a phone call from the Attorney General of the United States, John Mitchell.  General Mitchell asked the young Senator to come visit him in his office.  Senator Baker promptly headed to the Attorney General’s office in the Justice Department.  Upon his arrival, General Mitchell greeted him and offered him a new job. 

United States Supreme Court Associate Justice John Harlan had recently announced his retirement from the Court, and President Richard Nixon was looking to nominate his successor.  General Mitchell told the Senator that President Nixon had made his choice.  The man he wanted to nominate was … Howard Baker.

The young senator was frankly surprised by the news.  As a law student at the University of Tennessee followed by a 19 year career as a trial lawyer in Huntsville, Tennessee, he had never dreamed of being on the United States Supreme Court.  

Senator Baker paused and then asked General Mitchell, “Can you give me a day or two to think about this?” 

The Attorney General of the United States agreed to Senator Baker’s request for, in effect, a continuance.  The Senator promised to call the General back within a few days. 

Howard Baker then made a phone call to a friend … United States Supreme Court Justice Potter Stewart.  He confidentially conveyed to Justice Stewart that he was “under consideration” for an appointment whereby he would join Potter Stewart on the Federal Bench.  He asked Justice Stewart if he could visit him in his chambers and spend a little time watching him work.  Justice Stewart was delighted and said that he would welcome such a visit.  Though Justice Stewart never commented on his phone conversation with Senator Baker, there is little doubt that he was actually excited about the prospect of Howard Baker sitting next to him on the United States Supreme Court.  

On the following day, Senator Baker spent several hours with Justice Stewart and his law clerks.  He quickly concluded that the job of a U.S. Supreme Court Justice was not for him.  Compared to his work in the United States Senate, Baker found the work of Justice Stewart and his clerks looked, well … boring. 

Senator Baker would later confide to his friend, Senator Orrin Hatch, “I’ve seen funeral homes more lively than the United States Supreme Court chambers.” 

After his day with Justice Stewart, Senator Baker placed a phone call to the Attorney General of the United States.  In typical Baker humility, he told the Attorney General, “I really appreciate the President considering me for this wonderful and powerful job.  But, please ask him to not nominate me.  If he does nominate me, I will have to accept the nomination.  I can’t turn down the President of the United States.  But I wish he wouldn’t nominate me.  I want to stay in the United States Senate.” 

General Mitchell thanked his friend, Howard, and that was the end of the conversation.  A few weeks later, President Nixon nominated William Rehnquist for the United States Supreme Court. 

William Rehnquist would go on to become one of the most powerful Supreme Court justices in the history of the United States, serving as an associate justice from 1972 to 1986, and then Chief Justice from 1986 until his death in 2005.  Under his leadership, the United States Supreme Court became known as the “Rehnquist Court,” moving the Court in a solidly conservative direction. 

There was never a “Baker Court.”  Howard Baker remained in the United States Senate from 1971 through 1984.  He then became Chief of Staff to President Ronald Reagan and later Ambassador to Japan.  

You have to be a very secure lawyer to say no to an offer from the President of the United States to appoint you to the United States Supreme Court.  It takes a remarkable lawyer to decide that he is exactly where he should be in his service to his country and to turn down what almost everyone would regard as a promotion to a powerful position. 

In these times of unbridled ambition by so many power-hungry politicians, we can all be grateful to a Tennessee lawyer who decided that he was right where he wanted to be, serving the citizens of Tennessee and the United States of America as a Senator.

 

Comments

Jack B. Hood: Judah P. Benjamin also turned down an appointment to the U.S. Supreme Court. See https://en.wikipedia.org/wiki/Judah_P._Benjamin

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