Nixon, Richard

Nixon, Richard (b. 9 Jan. 1913, Yorba Linda, Calif.; d. 22 Apr. 1994, New York, N.Y.), lawyer, statesman, and president of the United States, 1969–1974. President Nixon resigned in 1974 after five years in office because of his role in the Watergate scandal, the first chief executive in history to do so. The Supreme Court prominently figured in bringing about the resignation; it also loomed large throughout Nixon's presidency.

In the 1968 campaign, Nixon assailed the Warren Court's decisions, and he emphasized the need for new justices who favored the “peace forces” rather than criminals. Nixon ignored the social and economic bases for the increased crime and violence in the nation, but he undoubtedly appealed to a large bloc of voters who believed that the Supreme Court had fostered contempt for the law.

After Lyndon Johnson withdrew Abe Fortas's nomination to succeed Earl Warren as chief justice, Warren's resignation seemed in doubt. But Nixon promptly secured Warren's agreement to leave in June 1969. Nixon considered promoting Justice Potter Stewart, but the president recognized the symbolic effect the appointment would have. (See Chief Justice, Office of the.) Warren Earl Burger of the D.C. Circuit Court of Appeals proved exactly that, for he consistently had been a lone dissenter on what was arguably the most liberal court in the nation. Burger regularly had criticized his colleagues, both on and off the bench, for their activism and excessive concern for the rights of the criminally accused. (See Judicial Activism.)

After selecting Burger, Nixon promised more justices with “unquestioned integrity” and said he would have an “arm's length” relationship with Burger—both points clearly directed at Fortas, whose ethics had seen questioned and who regularly consulted with Johnson on policy matters. Nixon emphasized that he would appoint federal judges who shared his philosophy of “strict construction,” a designated code for opposition to the Warren Court's rulings in areas of social policy. At one point, Nixon praised Chief Justice John Marshall as a “strict constructionist”; at another time, he denounced the Court's prayer ruling in 1962, because it “followed [the] usual pattern of interpreting the constitution rigidly.”

When Fortas resigned in May 1969 because of new revelations questioning his ethical behavior, Nixon quickly decided to fulfill campaign obligations to his Southern supporters. In August, he nominated Fourth Circuit Judge Clement F. Haynsworth, from South Carolina, a choice that provoked intense opposition from labor and civil rights groups. Haynsworth's record also raised ethical issues, enough perhaps to justify opposition from liberals still resentful over the treatment of Fortas. Seventeen Republican senators joined northern Democrats in November 1969 to defeat Haynsworth's nomination, 55 to 45—the first time since 1930 that the Senate rejected a Supreme Court nomination. Haynsworth was victimized by political forces anxious to retaliate against Nixon, rather than by his own record. Nixon promptly nominated another Southern conservative, Fifth Circuit Court Judge G. Harrold Carswell, of Florida. Carswell's overtly racist record, and his mediocre legal and judicial record, struck many as a studied insult to the Court's standing as an institution. Again, Republicans broke ranks, and in April 1970, the Senate defeated the nomination, 51 to 45.

Furious, Nixon insisted that his choices had been turned down because they were “southern strict constructionists.” The Senate, he charged, had denied him “the same right of choice” that had been “freely accorded” to others, a contention clearly at odds with the historical record. Nixon, however, understood his limitations, and he subsequently nominated Eighth Circuit Court Judge Harry Blackmun, from Minnesota. Nixon peevishly let it be known that Blackmun was to the right of the candidates on law and order and only slightly to their left in civil rights. Ironically, Blackmun wrote the Court's pro‐abortion ruling in 1973, easily the Burger‐Nixon Court's most liberal opinion. (See Abortion.)

In September 1971, Justices Hugo L. Black and John M. Harlan resigned because of ill health. Some presidential advisers wanted another confrontation with the Senate on civil rights; others cynically proposed nominating a Southern Democratic senator who had a dubious record in the area. At one point, Attorney General John Mitchell asked the American Bar Association (ABA) to approve California local judge Mildred Lillie, who would have been the first woman, and Herschel Friday, an Arkansas bond lawyer. (See American Bar Association Standing Committee on Federal Judiciary.) The ABA committee balked, but before its opposition became publicly known, the president nominated Virginian Lewis Powell, a former ABA president, and Assistant Attorney General William Rehnquist.

Powell's widely acclaimed selection proved untrue Nixon's charge that the Senate would not accept a Southerner. Rehnquist, a man Nixon once called a “clown,” however, proved troublesome. An outspoken conservative, Rehnquist had antagonized congressmen because of his support for luxuriant claims for executive privilege, but most of all because as Justice Robert H. Jackson's clerk in 1953, he apparently had opposed reversing Plessy v. Ferguson (1896). Rehnquist effectively defended himself and eventually was confirmed.

Powell and Rehnquist were Nixon's last appointments. But Nixon yearned for more opportunities to shape the Court in his own image. He asked Burger at one time to “nudge” Justices William O. Douglas and Thurgood Marshall to resign. With his knowledge, the Justice Department provided materials to Congressman Gerald Ford to assist him in the abortive effort to impeach Douglas. (See Impeachment.) Nixon considered asking Burger to step aside for a younger man. Nothing came of either idea.

Nixon's relationship with the Supreme Court also was distinguished by the policy and personal defeats he suffered at the hands of the Justices. In *United States v. United States District Court (1972), the Court unanimously rejected the administration's claim that it could order electronic surveillance without prior judicial approval. Most significant, of course, in United States v. *Nixon (1974), the Court, again in an 8‐to‐0 vote, ruled that notwithstanding Nixon's assertion of executive privilege, he must surrender certain tape recordings to the Watergate special prosecutor because of their links to criminal allegations. Those tapes clearly implicated the president in an obstruction of justice and led to congressional demands for Nixon's resignation.

The Court's role in resolving the tapes controversy was applauded throughout the nation. Ironically, the institution that Nixon had rather contemptuously regarded, but yet which he had significantly reshaped, unanimously contributed to his downfall.

Stanley I. Kutler