Nixon on US v Nixon

Over the weekend we learned that Brett Kavanaugh once expressed doubts about the wisdom of the Supreme Court’s ruling in United States v. Nixon, the famous Watergate tapes case. His comments have generated controversy because the case stands as a hallowed landmark in the history of American law. In the 1974 case, the justices ruled 8-0 that the president’s “generalized assertion of [executive] privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” 

In fairness to Judge Kavanaugh, his critical comments about the Nixon decision came almost 20 years ago. More recently he has discussed the ruling in favorable terms. In any case, the Senate confirmation hearing will give him an opportunity to clarify his position on United States v. Nixon and the crucial issue of executive privilege.

In the meantime, it’s interesting to reflect on Richard Nixon’s own reaction to the momentous Supreme Court decision that ended his presidency. Nixon learned of the Court’s ruling on the morning of July 24, 1974, when Alexander Haig, his chief of staff, called to let him know the bad news.

According to President Nixon’s autobiography, The Memoirs of Richard Nixon, the most important feature of the ruling was that it was 8-0. After learning that the Court had ruled against him, the first question Nixon asked of Haig was how many justices ruled with the majority.

“Unanimous,” Haig responded. “There’s no air in it at all.”

“None at all?” Nixon asked.

“It’s tight as a drum,” Haig explained.

A few minutes later Nixon and Haig met with James St. Clair, the president’s attorney. The three men discussed how to proceed in the wake of their devastating Supreme Court defeat. They knew that the release of the audio tapes—which recorded the president’s direct personal involvement in obstruction of justice—spelled Nixon’s political doom. Indeed, he would resign on August 9, just over two weeks after United States v. Nixon.

Ever since then, the case has been rightfully celebrated for vindicating the rule of law. A few hours after the Court announced its Nixon ruling, Watergate Special Prosecutor Leon Jaworski told the journalist Theodore White, “What happened this morning proved what we teach in schools, it proved what we teach in colleges, it proved everything we’ve been trying to get across—that no man is above the law.” 

But it is worth noting how close Nixon came to defying the Supreme Court ruling. As he explained in his autobiography, after the Court’s decision he seriously considered forcing a constitutional crisis by refusing to hand over the tapes. Nixon had an absolutist view of presidential power. He thus viewed the decision itself as unconstitutional, and lamented that the “presidency itself was a casualty of this ruling.” He would later tell the British journalist David Frost that “when the president does it, that means it is not illegal.”

Ultimately, however, the unanimous nature of the Supreme Court’s decision forced Nixon’s surrender. He could not portray the Court’s ruling as partisan or ideological in nature when the justices acted in unison. As Nixon explained in his autobiography:

“The problem was not just that we had lost but that we had lost so decisively. We had counted on some air in the Court’s ruling, at least some provision for exempting national security materials. We had counted on at least one dissent. For a few minutes we discussed the option of ‘abiding’ by the decision in the Jeffersonian tradition. But after checking with some of our strongest supporters in Washington, we concluded that full compliance was the only option.” 

It’s worth pondering what would happen if a similar case reached the justices today. If faced with a momentous case testing the limits of presidential power, could the Roberts Court find common ground among the justices as the Burger Court did 44 years ago?

No one knows the answer to that question. But it certainly makes Judge Kavanaugh’s views on United States v Nixon worth exploring in great detail during his Senate confirmation hearing. 

Comments

[Anthony Gaughan]

Just as a footnote, I should point out that William Rehnquist recused himself from the US v. Nixon case (which is why only 8 justices voted in the case). During his years as an attorney in the Nixon Justice Department, he had worked closely with Attorney General John Mitchell (a key player in the Watergate scandal) before President Nixon appointed Rehnquist to the Supreme Court in 1971.

Rehnquist subsequently took considerable heat for participating in cases involving controversial Nixon policies. He thus decided to play it safe in the Watergate tapes case by recusing himself.

Interestingly, however, according to this New York Times article, Rehnquist marked up copies of the draft opinion in US v Nixon that was circulated among the justices: https://www.nytimes.com/2008/11/18/washington/18rehnquist.html. It would seem then that, at a minimum, he closely followed the justices' internal discussion of the case, even though he did not participate formally himself in the final ruling.

[Unanimity is dead]

"If faced with a momentous case testing the limits of presidential power, could the Roberts Court find common ground among the justices as the Burger Court did 44 years ago?"

I dont think one needs to guess at the answer to this question; the answer is almost certainly no. As the partisan political gridlock of Congress and the Executive spills into the courts, it is entirely predicable that the political debates of the political branches will also enter the courts. It certainly seemed to have happened this way in "Citizens United," "Bush v. Gore," and the Muslim ban case.

[anon]

The partisanship involved in believing that stringing together a list of cases, as unanimity has done, is to claim something (what, exactly, is muddy) demonstrates the problem.

Unanimity's intent seems to be to convey that any "controversial" decision the "republicans" supported was wrong: this is the key to the effort by leftists to undermining the legitimacy of the court (this goes back to the progressives of Wilson's time).

Had unanimity cited a decision "wrongly decided" that democrats favored, then there might have been some way to infer that unanimity actually has principled basis for an opinion and has done the requisite legal analysis. But, no, as usual, this is just knee jerk sloganeering.

Think not? Explain the erroneous legal principle, that the republicans favored, that runs thru the three cases cited.

[Unanimity is dead]

In each case, the political positions of the two major political parties mirrors the arguments to the court and the opinions of the justices. Thus, as stated: "the political debates of the political branches will also enter the courts"

[anon]

Una

In my view, that view seriously misstates the evidence.

For example, in Bush v. Gore, seven justices agreed that there was an Equal Protection Clause violation. The Court nearly unanimously held that the Equal Protection Clause guarantee to individuals that their ballots cannot be devalued by "later arbitrary and disparate treatment" was being violated. If you think 7 -2 isn't good enough to show that more was involved than partisanship, so be it.

The closer vote was with respect the remedy: given the proximity of the relevant deadlines to complete the recount. The ruling was issued on December 12, 2000. (On December 9, the Court had preliminarily enjoin the Florida recount.) The Electoral College was scheduled to meet on December 18, 2000, to decide the election. YOu may believe this aspect of the decision was "wrongly decided" but, as all scholars know, the case was remanded, and Gore could have gone back to the Florida Supreme Court. He didn't. This wasn't based on "the political position" of the Democratic party, and no one can credibly argue it was.

The ACA case is another example. A majority of the court did NOT hold that the act was a valid exercise of power under the Commerce Clause, which was the "political position" of the Democratic party. Instead, Roberts did a flip flop, holding the mandate to be a penalty under Anti-Injunction Act and a tax for Constitutional analysis. This was not the "political position" of the Democratic party, which had repeatedly campaigned on the claim that the ACA penalty was not a tax.

And so forth. We could go thru all your slogans, and do a careful analysis that belies the superficial cry that "it's all politics" and judges only vote the way the parties tell them to. That is the way uninformed voters may see it, but not those who actually study the cases.

Moreover, as far as the "rule of law" goes, let's compare and contrast. The article above shows a president who obeyed the law, and then resigned. Let's compare with another president:

from Wiki (eoe):

"In April 1999, about two months after being acquitted by the Senate, Clinton was cited by Federal District Judge Susan Webber Wright for civil contempt of court for his "willful failure" to obey her repeated orders to testify truthfully in the Paula Jones sexual harassment lawsuit. For this citation, Clinton was assessed a $90,000 fine, and the matter was referred to the Arkansas Supreme Court to see if disciplinary action would be appropriate.[29]

Regarding Clinton's January 17, 1998, deposition where he was placed under oath, the judge wrote:

Simply put, the president's deposition testimony regarding whether he had ever been alone with Ms. (Monica) Lewinsky was intentionally false, and his statements regarding whether he had ever engaged in sexual relations with Ms. Lewinsky likewise were intentionally false....[29]

On the day before leaving office in January 2001, President Clinton agreed to a five-year suspension of his Arkansas law license as part of an agreement with the independent counsel[clarification needed] to end the investigation.[30] Clinton was automatically suspended from the United States Supreme Court bar as a result of his law license suspension. However, as is customary, he was allowed 40 days to appeal an otherwise-automatic disbarment. The former President resigned from the Supreme Court bar during the 40 day appeals period.[31]"

Care to guess to which party the latter president belonged?

One suspects you defended the latter president's defiance, and will be posting here about the relevance of Stormy, etc.

As such as, one could surmise that you, unlike the SCOTUS, simply adopt "the political positions" of the Democratic political party, as do most who post on the website.

[Scott Pruitt Edndowed Chair in Enviconmental Justice]

This so called process has degenerated into a gotcha. A good lawyer can see and take all sides to an issue. Just because he engaged in an academic argument or wrote a paper doesn't mean he will rule in a particular manner. It's like telling folks that I some how believe in sexual abuse, domestic violence, theft, murder, and drug dealing because I represent those folks accused of those crimes. It really is a twisted, uninformed logic here. Its that cake baker logic and his belief that it reflects his views. He is not promoting gar marriage personally.

[anon]

The Constitution does NOT require the nominee to submit to Senate show trials. "Senate confirmation hearing will give him an opportunity to clarify his position on United States v. Nixon and the crucial issue of executive privilege."

Hopefully, the nominee will do no such thing. The Senate should decide whether to consent to the nomination based on something more than the risible way they question witnesses: Biden questioning Bork comes to mind.

Again, from Wiki, with errors excepted:

"He then entered Syracuse University College of Law, receiving a half scholarship based on financial need with some additional assistance based on academics.[28] By his own description, he found law school to be "the biggest bore in the world" and pulled many all-nighters to get by.[19][29] During his first year there, he was accused of having plagiarized 5 of 15 pages of a law review article. Biden said it was inadvertent, due to his not knowing the proper rules of citation, and he was permitted to retake the course after receiving an "F" grade, which was subsequently dropped from his record (this incident would later attract attention when further plagiarism accusations emerged in 1987).[29][30] He received his Juris Doctor in 1968,[31] graduating 76th of 85 in his class."

The nominee? Again, from Wiki with errors excepted:

"after attending the University of Chicago. After working at the law firm of Kirkland & Ellis, he served as a Yale Law School professor. He became a prominent advocate of originalism, calling for judges to hew to the framers' original understanding of the United States Constitution. He also became an influential antitrust scholar, arguing that consumers often benefited from corporate mergers and that antitrust law should focus on consumer welfare rather than on ensuring competition."

Whatever one thought of Bork's constitutional theory, about which he was incredibly open and honest, the questioning by Biden was a joy to behold. I can remember laughing out loud at Biden's questions.

Kennedy?

Again, from Wiki, with errors excepted:

"Due to his low grades, Kennedy was not accepted by Harvard Law School.[16] He instead followed his brother Bobby and enrolled in the University of Virginia School of Law in 1956.[2] That acceptance was controversial among faculty and alumni, who judged Kennedy's past cheating episodes at Harvard to be incompatible with the University of Virginia's honor code; it took a full faculty vote to admit him."

His questioning was laughable for another reason. SOrt of like when he starting attacking Thomas for his attitude toward women, Kennedy postured and bellowed like he actually had some sort of expertise and moral authority.

[Scott Pruitt Edndowed Chair in Enviconmental Justice]

My liberal dad voted for Nixon. Unbelievable.

[Anthony Gaughan]

In 1960, 1968 or 1972? Or all three?

[Scott Pruitt Edndowed Chair in Enviconmental Justice]

1972. I remember the chant, NIXON, NIXON, is our man, McGovern belongs in the garbage can. My dad thought McGovern was nuts, a threat to the US. That's what I remember my Uncle screaming at my Dad for that vote.