In his opening salvo against Douglas, Ford raised the question of what constituted an impeachable offense. “The only honest answer,” he responded, “is that an impeachable offense is whatever a majority of the House of Representatives considers [it] to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” Impeachment, Ford later argued, was a “protective,” not a “punitive,” device. It was meant to protect the nation from official misdeeds and need not involve criminal offenses, he said.43 Ford had a good deal of history on his side supporting those arguments, history that he and the President conveniently repudiated in 1974.
White House staff workers blamed Attorney General Mitchell and his department for badly advising the President on Supreme Court matters. Particularly critical was John Ehrlichman, who constantly sniped at the Attorney General. But the appointments and confrontations served a variety of presidential political needs, including appeasing the South and publicly challenging congressional liberals. By late 1971, with two new nominations to submit and an election only a year away, the Administration could no longer afford mistakes.
Ehrlichman had his protégé Egil Krogh devise procedures to tighten the White House grip and influence on Court nominations, primarily at the expense of the Justice Department. Krogh told Ehrlichman that the President could not again “play catch up ball with a nomination.” Conceding initial selection and checkout procedures to Justice and the FBI, Krogh suggested that a White House unit be established to oversee the proceedings—with John Ehrlichman at the helm. Krogh devised roles for the President’s key men in securing future nominations: Clark MacGregor and William Timmons to handle Congress, William Safire to deal with the press, Charles Colson to brief various interest groups, and John Dean to coordinate the others. Krogh urged that David Young, his fellow Plumber—whom Krogh called “the one independent mind, very facile and penetrating”—should be heavily involved. Krogh also did not trust the FBI. He proposed “CIA-type debriefings” of two to three days for leading Court candidates, particularly emphasizing “demeanor evidence.” Finally, if the President submitted two nominations, the more difficult one should go first, Krogh wrote. Subsequently, someone—presumably Krogh—devised a questionnaire for candidates, including queries regarding their financial net worth, psychiatric background, family relations, possible “guilt by association,” knowledge of “enemies,” life-style, and specific positions on civil rights, criminal procedure, wiretapping, the right of privacy, subversive activities, and church-state relations.44
The White House knew that numerous members of the Court were in precarious health. Shortly after his sharp attack on the Nixon Administration for its attempts to censor the press in the Pentagon Papers case, Justice Hugo Black became gravely ill. He submitted his resignation in September 1971. A week later, Justice Harlan, nearly blind and debilitated by bone cancer, also resigned. It was a golden opportunity for the President, but he came perilously close to opting for mediocrity and confronting the Senate once more.
Nixon now found himself pressured from an unexpected quarter. His wife publicly stated that she was pushing for the nomination of a woman. “I’m talking it up,” she told reporters. “If we can’t get a woman on the Supreme Court this time, there’ll be a next time.” When her husband submitted two male nominees, Pat Nixon “strongly” told the President that he should have named a woman. “With exaggerated weariness,” according to his daughter, the President cut off the conversation, telling her: “We tried to do the best we could, Pat.”45 Indeed, there had been serious consideration of a woman.
The 1971 nominations witnessed a sharp struggle between those in the White House who sought to exploit immediate political advantages even if doing so occasioned further conflict with the Senate, and those who tried to persuade the President to act for long-term political advantage and his historical reputation. Pat Buchanan argued for quick nominations “to head off mounting lobbies of women, blacks and labor.” He pressed hard for a southerner, asserting that Senator Edmund Muskie (the Democrats’ leading presidential contender) would have difficulty explaining away three antisouthern votes, especially if the nominee were a congressman.
Buchanan had a candidate: Richard Poff, a Virginia Representative, a member of the House Judiciary Committee, and highly respected among congressional southerners and conservatives. Poff had a problem, however: he had long ago signed the so-called “Southern Manifesto,” counseling resistance to the Court’s 1954 desegregation decision. Buchanan found that tantalizing, thinking that an “impeccable” nomination such as Poff’s would generate a Senate “mini-rebellion.” It would be a bitterly divisive issue for the Democrats: “either they kick their black friends in the teeth, or they kick the South in the teeth.” As long as the Administration nominated “qualified strict constructionists,” then the Democrats were “on the hook.” Buchanan also urged the President to reject Irving Kristol’s suggestion of University of Chicago President Edward Levi as a nominee. Buchanan thought there was no mileage in the President’s nominating a Jewish candidate; instead, he urged Nixon to find “the most brilliant and qualified Italian-American strict constructionist … and then name play up his Italian background—and let the Democrats chop him up, if they want.” Sectional wars, partisan wars, ethnic wars—they were all grist for Buchanan’s assault on Democratic senators.
Leonard Garment weighed in with his own political calculus. He thought that time was not of the essence; what was important was for the President to choose wisely and avoid a prolonged fight. Garment’s immediate concern was scuttling Poff. Poff’s views on race, women, and ethnics offered obvious rallying points for the Administration’s well-entrenched and vocal foes. The President needed Senate support for other items on the agenda; why needlessly antagonize? Garment appealed to Nixon to encourage an “open discussion” of candidates and to avoid “surprises.” Such discussion, he believed, would prevent possible embarrassment and indicate the Administration’s seriousness in finding the best-qualified nominees.46
Buchanan pursued the President’s heart; Garment went for his head. Meanwhile, the Administration’s internecine battle over Supreme Court nominees had become public, and Poff withdrew (probably in accord with White House wishes) to avoid a protracted battle. The President and his aides gave some consideration to nominating a Senator, hoping to simplify the confirmation procedure. Apparently, Howard Baker (R–TN) was given an informal offer. In a more cynical vein, to annoy liberals Nixon let it be known that he was considering Senator Robert Byrd (D–WV).
Garment’s views did not immediately prevail; instead, a variety of sources pushed the candidacies of Mildred Lillie and Herschel Friday. Lillie was a Superior Court judge in Los Angeles who first had been touted to Nixon by Mayor Sam Yorty. The President had two of his aides convey the suggestion to Mitchell. Apparently the Attorney General believed that it constituted an endorsement, or at least an idea to be taken seriously. Assistant Attorney General Rehnquist certainly treated Lillie seriously and defended her judicial record.47 Friday was a Little Rock lawyer, known to Mitchell from their work together as municipal-bond attorneys. Beyond these vague links, neither candidate had much by way of recommendation; indeed, the American Bar Association indicated to Mitchell that it would not be able to endorse either Friday or Lillie. (Perhaps Lawrence Walsh, head of the ABA committee on Court candidates, remembered his public embarrassment when the committee endorsed Carswell.)
With the Lillie and Friday nominations, the Administration stood at the brink of another political and public-relations disaster. If the nominations were made, and without ABA support, the likelihood was that the Senate again would reject the President’s choices. This time, however, confrontation was avoided. Just before the ABA decision became a matter of public record, on October 21, 1971, the President nominated Lewis Powell, a Richmond, Virginia, lawyer and a past president
of the ABA, and Assistant Attorney General Rehnquist.
Powell’s nomination won widespread acclaim, giving the lie to Nixon’s earlier charge that the Senate would not confirm a southerner. Powell had a reputation as a conservative, an able lawyer, and a strict constructionist, but he also had gained praise for his role, as school-board chairman, in peacefully desegregating the Richmond public schools. He impressed the Senate Judiciary Committee with his balanced views. The government, he said, had a right to protect itself against potential insurrectionaries, but it must avoid injuring or arresting innocent people. He conceded that wiretapping could be justified at times, but he assured the committee that he would oppose “indiscriminate” use of it.
Nixon’s problem this time was with a displaced Wisconsinite who had moved to Arizona. Enough was known about William Rehnquist to tab him as a conservative ideologue. His views on desegregation became suspect following the revelation of a memorandum he had written while clerking for the late Justice Robert Jackson in the early 1950s. Rehnquist claimed that the memo merely summarized different “legal” views of segregation, not his own. There were also questions about his advice to the Administration on the civil rights status of antiwar demonstrators. Rehnquist refused to discuss these matters, claiming attorney-client privilege. Senator Birch Bayh urged Nixon to waive the privilege. Inasmuch as Rehnquist supposedly shared the President’s judicial philosophy, the Senator insisted it was important that Rehnquist enlighten the Senate on those views. Bayh’s position cannot have been new to Rehnquist. Writing in 1959, largely in protest against the civil rights views of the Warren Court, Rehnquist himself had called on the Senate to do a better job of determining the judicial philosophy of Supreme Court nominees. “The only way for the Senate to learn of these sympathies,” he said, was to make proper inquiries during the confirmation process.
The President refused to waive attorney-client privilege, and Rehnquist did not discuss with the Senate committee his judicial philosophy. Nixon later happily recalled that he picked Rehnquist for his philosophy. He was particularly impressed with Rehnquist’s appearance before the Senate Judiciary Committee. “Demolished them,” Ehrlichman noted, although Nixon also had earlier called Rehnquist “a clown.”48 Rehnquist was confirmed on a 68–26 vote.
The Powell and Rehnquist appointments to the Supreme Court were Nixon’s last. Yet he had hopes of more. In late 1972 he instructed Ehrlichman to tell Burger to “nudge” Justices Douglas and Thurgood Marshall, both reportedly in ill health. A few months later, the President thought he should replace Burger, given that the Chief Justice was getting on in years. If Burger wanted more government service, Ehrlichman was instructed to tell him that “we’ll find something worthy of you.”49 Nothing came of either idea.
Nixon’s battles with the Senate over Supreme Court nominations offered a vivid example of his determination to change national priorities without interference or challenge by Congress. Despite the Democratic majority in the Senate—perhaps even a liberal ideological majority—Nixon boldly confronted that power. He would have had no difficulty had he initially nominated Justices with the qualities of Powell or Blackmun. These men were hardly liberals, yet their personal characters were unimpeachable and their legal records worthy of broad support. Rehnquist’s well-known rightist views proved no handicap when weighed against his intellectual and legal capabilities. Nixon’s early nomination of lesser candidates showed his contempt for both the Senate’s political sensibilities and its constitutional role, as well as his contempt for the Court as an institution. How else to explain the nominations, even the serious consideration, of a Carswell, a Lillie, a Poff, or a Friday? Those names might have provided some short-range political mileage for Nixon, but their obscurity belittled the Court’s significance as an institution, and their mediocrity only signaled the President’s willingness to devalue the Court’s role in the governmental apparatus.
* * *
The struggles with Congress over the Supreme Court, over executive-branch reorganization, and over impoundment of allocated funds contributed to the ever-growing tension between the President and Congress. These battles were important, yet they were sometime things, occasioned by momentary considerations or needs. By contrast, the persistence of the Vietnam conflict, and the widened battles at home over that war, colored both the day-to-day and long-term relations between the two branches. Johnson’s tarbaby became Nixon’s, and as with his predecessor, President Nixon’s perception of American interests abroad poisoned his own fortunes at home. In his 1968 campaign, Nixon had recognized that the United States must extricate itself from the war. Yet questions of how and when proved as explosive and intractable as the war itself.
Public protests against the Vietnam war mounted at the outset of the Nixon Administration, but after the fatal shootings of student demonstrators at Kent State and Jackson State Universities in May 1970, and the bombing at the University of Wisconsin in August 1970, some of that pressure abated. Not so in Congress, however.
Thanks largely to the growing realization that President Johnson had interpreted the Gulf of Tonkin Resolution as a blank check for conducting the war on his own terms, Congress had grown increasingly suspicious of executive policy. Nixon’s lament about Congress’s denial of the “free hand” in Supreme Court appointments that had been given to his predecessors might have rung truer regarding Vietnam and foreign policy. The traditional liberal faith in a strong presidency had particularly underlined the need for broad presidential powers in foreign policy; Americans looked to their presidents to play the leading role for the United States in world affairs.
Now, for a variety of reasons—a realization of its rightful role, a response to public pressures, a distrust of Richard Nixon—Congress began to assert itself in foreign-policy concerns after a long period of quiescence. The ingredients were all in place for fateful clashes.
Congress’s customary behavior had permitted an extravagant growth of executive war powers. Perhaps Congress had been overwhelmed by a “cult of executive expertise”; perhaps there was a residue of guilt left over from the Senate’s 1919 rejection of the League of Nations and American international responsibilities; or perhaps, as a Senate committee suggested in 1969, Congress found itself “unprepared” to assert its constitutional role as the United States suddenly found itself in a new and dangerous world after 1945.50 In any event, for better than a generation, presidents generally dealt with tame, pliant congresses in foreign-policy matters. The frustrating obstacles Congress regularly had imposed on presidential domestic policies simply were absent in foreign affairs. With cause, Richard Nixon thought he had a “free hand” in the international arena.
Henry Kissinger’s interest in defending his actions and those of the President inevitably conflicted with his scholarly, historical detachment. In a rare moment, however, detachment prevailed as Kissinger clearly stated the ironic, tragic nature of the conflict between the President and Congress over foreign policy. The Vietnam debate, Kissinger later wrote, “represented a flight into nostalgia,” a notion that America had somehow lost its way and desperately needed to recover its moral purity. Kissinger dismissed the confusion and debate over the war as an expression of self-indulgence that “opened the floodgates of chaos and exacerbated … internal divisions.” Kissinger admitted that Nixon compounded the bitterness with an ample dose of his own. Convinced that he confronted a hostile conspiracy, Nixon responded with anger toward critics of his withdrawal plans, and toward what he saw as a lack of concern with the fate of innocent populations of Indochina. He also deplored the radical opposition to his foreign policy, marked by firebombings, thefts of classified information, incitements to draft resistance, and leaks of sensitive documents. Typically, the President charged that “intellectuals” and opponents of the war such as the New York Times thought they were “doing God’s work.” Nixon criticized in general terms the media, the “eastern establishment,” and “Congress v. us,” particularly singling out Senators Fulbr
ight and Mansfield, respectively the Chairman of the Senate Foreign Relations Committee and the Senate’s Majority Leader.51
Congress signalled its shifting mood toward control of foreign policy only months after Nixon assumed power. The Senate overwhelmingly approved the “National Commitments Resolution” on June 25, 1969, a statement designed to reassert Congress’s role in committing American armed forces to the defense of other nations. Such action, the Senate said, “results only from affirmative action taken by the legislative and executive branches.” Nixon criticized the proposal as unduly tying the President’s hands. That was precisely the intent of the Senate: 45 senators who had voted for the Gulf of Tonkin Resolution in 1964 supported the 1969 action.
Nixon sensed the new mood. Just a few weeks earlier, he attacked critics of American foreign policy as “neo-isolationists.” Yet several months later he effectively neutralized his critics with his response to the massive protests in October 1969. In a national television address, he appealed to the “Silent Majority,” confidently asserting that they outnumbered the protesters and supported his goal of “peace with honor.” North Vietnam, he insisted, could not defeat or humiliate the United States; “only Americans can do that.” Three hundred representatives and fifty-eight senators signed a resolution supporting the President’s Vietnam policies. The favorable response to the speech—his public-approval rating jumped to 68 percent—convinced Nixon that he now would have two years to complete a plan for a phased withdrawal of American troops, with the resulting “Vietnamization” of the war.52
The Wars of Watergate Page 23
