NIXON’S COURT: HIS CHALLENGE TO JUDICIAL LIBERALISM AND ITS POLITICAL CONSEQUENCES, by Kevin J. McMahon. Chicago: University of Chicago Press, 2011. 360pp. Cloth $29.00. ISBN: 9780226561196. Reviewed by Frank J. Colucci, Department of History and Political Science, Purdue University Calumet; Fellow, Keller Center for the Study of the First Amendment, University of Colorado. Email: coluccif [at] purduecal.edu.
pp.100-105
In Nixon’s Court, presidential scholar Kevin J. McMahon offers a persuasive revisionist account of the judicial legacy of Richard Nixon. Critics argue that Nixon waged a jurisprudential “counter-revolution” against the Warren Court that eventually “failed” (Dworkin 1972; Blasi 1983). Using archival records, McMahon argues that the judicial nominations and legal actions Nixon undertook during his first term were driven by “politics far more than ideology” (p.6).
Rather than total revolt against the Warren Court, McMahon posits, Nixon engaged in a limited, opportunistic strategy. He publicly opposed judicial decisions in a few politically potent areas –busing for school desegregation and crime – and put political symbolism over ideology when selecting Supreme Court nominees. Nixon did this seeking to expand his Republican base with two components of the New Deal Democratic coalition: southerners and working-class, often Catholic voters in the urban North. But even in the areas of school desegregation and crime he made little attempt to overturn Warren-era precedents or to refuse to enforce Supreme Court’s decisions. He even benefitted from public perception and backlash against the Court. Based on his re-election in 1972 and later decisions concerning crime and busing, McMahon concludes, “on the issues Nixon most cared about” he essentially got what he wanted (p.252).
McMahon situates Nixon’s approach to the courts within the context of his narrow victory in 1968 and the re-election battle he expected in 1972. Facing Democrat Hubert H. Humphrey and the independent candidacy of Alabama Gov. George C. Wallace, Nixon needed to construct an electoral majority by adding disaffected Democrats without losing his GOP base.
Nixon thus in 1968 did not attack the Warren Court as directly as Wallace, McMahon shows. Instead Nixon connected perceived excesses in rights for criminal defendants to increasing urban unrest, and he tied commitments to law and order with his own and his party’s past support for civil rights. “The first civil right of every American,” Nixon said in a campaign speech, “is to be free from domestic violence. That is the kind of men we are going to have and I think we need that kind of balance in the courts” (quoted at p.32). Nixon did not criticize Brown v. Board of Education, McMahon writes; he “attempted to avoid undermining the principle of racial equality, preferring instead to stress the hazards of further judicial activism and of an expanded federal government” (p.57). This [*101] national strategy won Nixon just enough votes to gain an electoral – though not popular – majority: “To keep them in the GOP fold (or to move them from Wallace’s), more work would have to be done” (p.60).
The judicial actions of Nixon’s first term, McMahon argues, were part of that necessary work to win re-election. As an opposition president, “his judicial policy was geared toward creating a mainstream majority on the Court and an electoral majority at the polls than producing sharply ideological decisions that risked electoral defeat” (pp.67, 72).
On busing, Nixon sought “to please both sides of the desegregation debate” by “devising a plan of deferring to the courts” (p.72). In cases such as Alexander v. Holmes County (1969) and Swann v. Charlotte-Mecklenberg (1971), McMahon writes, the administration filed briefs opposing busing plans ordered by federal district courts. Nixon made symbolic public moves such as firing Health, Education and Welfare official Leon Panetta in 1970 for too aggressively withholding federal funds from school districts who refused to integrate; giving an address on national television after Swann (and two days after Wallace’s win in the Florida Democratic primary) in support of federal legislation that would place a moratorium on busing decisions and strip federal court jurisdiction in that area; and transferring enforcement of school desegregation from HEW to Justice. Nixon’s administration, however, never refused to execute a judicial decision. Portraying himself as “an unwilling partner,” McMahon writes, Nixon tried “to sell the story that the Supreme Court was responsible for desegregation and that there was little the administration could do about it” (pp.105, 91, 97). Nixon “would advance integration without taking much credit for it; he would obey the law while rolling his eyes for all southern white voters to see” (p.75; see also Kotlowski 2001).
McMahon effectively presents how electoral concerns drove Nixon’s deliberations about his nominations to the U.S. Supreme Court. Warren Burger was quickly confirmed as Chief Justice to replace Warren. In 1970, with another opening, Nixon sought “a white conservative federal judge under 60 (so he would have a long range impact on the Court)” (quoted at p.119). Due largely to the actions of his own party, no such nominee would ever be confirmed. The key votes against South Carolina’s Clement Haynsworth and Florida’s G. Harrold Carswell came not from Democrats but from Republican Senators representing northern states critical to Nixon’s re-election. These nominations “gave the impression that he was not only bent on delivering for the South but on delivering for those with segregationist sympathies” (p.144). Nixon was forced to settle for a third choice, Minnesotan Harry A. Blackmun, and Republicans performed below expectations in the November 1970 midterm elections.
In 1971, finding himself with two Court vacancies, Nixon was forced into a “post-Southern strategy” (p.144). Utilizing information from administration tapes and records, McMahon shows that Nixon was “initially more concerned with scoring political points for electoral purposes than with finding a conservative thinker [*102] who might lead a counter-revolution on the Court” (p.149). He searched for nominees from the voting groups he needed to attract in 1972: southerners, Catholics and women. “Hell, I’m against it myself,” Nixon tells Attorney General John Mitchell about nominating a woman, “but it’s got to be done. I think at this time, John, we got to pick up every half a percentage point we can” (quoted at p.150). Only after his preferred choices Herschel Friday of Arkansas and Mildred Lillie of California received low ratings from the American Bar Association did Nixon move from symbolism to competence.
McMahon chronicles how political symbolism and ease of confirmation drove these later nomination decisions. Nixon considered Sen. Howard Baker (R-Tenn.) despite a lack of judicial experience and a reputation for moderation. Lewis F. Powell Jr., a Virginian in his 60s who was past president of the ABA, advised Nixon to choose someone else for the Court; due to declining eyesight, he said he could serve only two to five years (p.160). Warren Burger repeatedly threatened to resign if Nixon nominated a woman to the Court (p.150). To appeal to both women and Catholics, Nixon suggested that Lillie be introduced under her married name Mildred Lillie Falcone (p.157). Assistant Attorney General William H. Rehnquist dismissed suggestions he would be chosen: “I’m not from the South, I’m not a woman, and I’m not mediocre” (quoted at p.162). After choosing Rehnquist, Nixon asks Mitchell “be sure to emphasize to all the southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is” (quoted at p.164). Settling for Powell and Rehnquist, McMahon writes, shows Nixon was “ready to give in, focusing on the quality of the nominees rather than the electoral punch they were thought to provide” (p.147).
Nixon’s electoral imperative, McMahon argues, extended to the administration’s larger agenda at the Department of Justice. Solicitor General Erwin Griswold, a Johnson holdover, did not participate in many landmark Supreme Court cases from 1969-1973, including Roe v. Wade, Miller v. California, Furman v. Georgia, Dandridge v. Williams and San Antonio v. Rodriguez. Nixon, McMahon writes, considered “emerging social issues” such as abortion, the death penalty and welfare “in political – largely electoral terms – rather than ideologically” (p.77).
Even in featured areas of crime and desegregation, the legal actions of the Nixon administration did not match its strong public rhetoric. Nixon advocated for limits on court-ordered busing, but his administration’s intervention in Keyes v. School District No. 1 was described by its author as a “hide-the-ball-kind of brief” (p.196). On criminal procedure, Griswold was a “somewhat subdued voice.” When he did file a brief for the government, he was “conciliatory” and did not attack the foundations of Warren Court precedents. Griswold, McMahon writes, “was not as active as might have been expected given the significance of the crime issue for the administration” (p.190). With Stewart, Brennan, Marshall, White and Douglas still on the Court, Griswold’s conciliatory approach seems prudent legal strategy.
By promoting opposition to the Court loudly in public speeches but cautiously [*103] in legal briefs, Nixon clearly placed electoral advantage before legal victory. He realized he could even benefit from the public backlash to unfavorable rulings. Only during Nixon’s second term, when Robert Bork replaced Griswold as Solicitor General, did the administration take a “more confident and conservative tone” (p. 206). In school desegregation and crime cases decided after Nixon’s re-election, the administration, with votes from Nixon’s four appointees, secured legal victories in Milliken v. Bradley and Gregg v. Georgia.
McMahon concludes by attempting to assess the electoral and jurisprudential success of Nixon’s judicial strategy. “Given the turbulent nature of the times,” he writes, in 1972 “voters interested in social issues might have supported the more conservative candidate for a host of other reasons that have little relationship to the Court, including the countercultural assault on traditional values” (p.225). Nixon likely assumed he would face mainstream Democrat Ed Muskie (or Ted Kennedy) as well as Wallace. After Wallace was paralyzed by a would-be assassin and McGovern won the Democratic nomination, neither threat materialized. Nevertheless, McMahon concludes, “Nixon was able to translate his conservative positioning on Supreme-Court related issues in the 1972 election, and to make significant inroads with a group of voters – the so-called Reagan Democrats – commonly thought to be later entries into the GOP presidential coalition” (p.250). In a final chapter, McMahon argues that later Republican presidents often adopted Nixon’s opportunistic approach toward judicial nominees, “favoring electoral symbolism or confirmation certainty over ideological purity” (p.253). This has the effect, on abortion as well as crime and race, of making the Supreme Court “nearly a perfect fit for GOP interests, clearly advancing conservative doctrine without unduly unsettling the Republican’s [sic] political alliance” (p.255).
McMahon at times draws broader cultural and electoral conclusions than his anecdotes and data can support. The book begins and returns to the example of Eddie Wenzek, a Buffalo bar owner who “would have been one of Nixon’s targets.” But Wenzek supported Democrats in 1968 and 1972 because “Nixon just didn’t interest me” (pp.8, 61, quoted at 51).
More substantively, McMahon’s evaluation of electoral data to assess Nixon’s court-centered strategy within an electoral landslide seems overbroad. He admits that connections between Nixon’s judicial actions and the choices of white Catholic voters in the urban North are “more suggestive than conclusive” (p.215); analysis is “a bit tricky” (p.226) and requires “caution” (p.215). Nevertheless, McMahon traces vote shifts not to the economy, foreign policy, or to McGovern’s campaign but to a “busing effect” (p.237). Despite earlier professions of caution, McMahon refers repeatedly and confidently to the “myth” of “so-called Reagan Democrats” (pp.227, 249, 250). McMahon presumes Democrats and independents who voted for Reagan in the 1980s were the same people who voted for Nixon and did so for largely the same reasons.
McMahon also makes an unpersuasive [*104] attempt “to divide Rehnquist’s long tenure into two parts”: he was an “accidental choice” by Nixon for associate justice, but when elevated by Reagan to Chief Justice he was a “movement conservative” (pp.251-252). Despite his post-nomination professions of ignorance to Mitchell – and once earlier referring to Rehnquist as “Wrenchburg” – Nixon likely had a good idea of the agenda his own assistant attorney general would advance on the Court regarding crime and desegregation (pp.162-164). When McMahon relies on archival research chronicling Nixon’s overriding electoral motivations, his interpretations are most convincing.
Nixon’s Court provides a compelling case study at the intersection of constitutional law, judicial politics and presidential studies. McMahon’s work sits well within the existing literature on presidential nominations to the Supreme Court, the Senate’s role to advise and consent, and the political consequences of the judicial nomination and confirmation process (Abraham 1999, Comiskey 2004, Yalof 1999, Epstein and Segal 2008, Stephenson 1999). McMahon’s argument also urges further analysis of the precise nature of the Court’s “conservative” turn after 1969 (Keck 2004, especially Chapter 4). Employing the regime politics framework of Stephen Skowronek (1993, 2008), McMahon illustrates the political, electoral and institutional realities that constrain any oppositional president. Nixon’s Court shows how the larger context of American politics shaped the judicial policies of a president who cared less about waging a jurisprudential counter-revolution and more about doing whatever was necessary to remain in power.
REFERENCES
Abraham, Henry J. 1999. Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton. New York: Rowman & Littlefield.
Blasi, Vincent (ed.). 1983. The Burger Court: The Counter-Revolution That Wasn’t. New Haven: Yale University Press.
Comiskey, Michael. 2004. Seeking Justices: The Judging of Supreme Court Nominees. Lawrence: University Press of Kansas.
Dworkin, Ronald. 1972. “The Jurisprudence of Richard Nixon” New York Review of Books 4 May 1972; reprinted as Chapter Five of his Taking Rights Seriously, Cambridge: Harvard University Press, 1977.
Epstein, Lee and Jeffrey Segal. 2005. Advise and Consent: The Politics of Judicial Appointments. New York: Oxford University Press.
Keck, Thomas. 2004. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press.
Kotlowski, Dean J. 2001. Nixon’s Civil Rights: Politics, Principle, and Policy. Cambridge: Harvard University Press.
Skowronek, Steven. 2008. Presidential Leadership in Political Time: Reprise [*105] and Reappraisal. Lawrence: University Press of Kansas.
---. 1993. The Politics Presidents Make: Leadership from John Adams to George Bush. Cambridge: Harvard University Press.
Stephenson, Donald Grier Jr. 1999. Campaigns and the Courts: The U.S. Supreme Court in Presidential Elections. New York: Columbia University Press.
Yalof, David. 1999. Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees. Chicago: University of Chicago Press.
CASE REFERENCESAlexander v. Holmes County Board of Education, 396 U.S. 1218 (1969).
Brown v. Board of Education, 347 U.S. 483 (1954).
Dandridge v. Williams, 397 U.S. 471 (1970).
Furman v. Georgia, 408 U.S. 238 (1972).
Gregg v. Georgia, 428 U.S. 153 (1976).
Keyes v. Denver School District No. 1, 413 U.S. 189 (1973).
Miller v. California, 413 U.S. 15 (1973).
Milliken v. Bradley, 418 U.S. 717 (1974).
Roe v. Wade, 410 U.S. 113 (1973).
San Antonio v. Rodriguez, 411 U.S. 1 (1973).
Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971).
Copyright by the Author, Frank J. Colucci.
