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.
Recent Comments