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Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences

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Most analysts have deemed Richard Nixon’s challenge to the judicial liberalism of the Warren Supreme Court a failure—“a counterrevolution that wasn’t.” Nixon’s Court offers an alternative assessment. Kevin J. McMahon reveals a Nixon whose public rhetoric was more conservative than his administration’s actions and whose policy towards the Court was more subtle than previously recognized. Viewing Nixon’s judicial strategy as part political and part legal, McMahon argues that Nixon...

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Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences

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Overview

Most analysts have deemed Richard Nixon’s challenge to the judicial liberalism of the Warren Supreme Court a failure—“a counterrevolution that wasn’t.” Nixon’s Court offers an alternative assessment. Kevin J. McMahon reveals a Nixon whose public rhetoric was more conservative than his administration’s actions and whose policy towards the Court was more subtle than previously recognized. Viewing Nixon’s judicial strategy as part political and part legal, McMahon argues that Nixon succeeded substantially on both counts.

Many of the issues dear to social conservatives, such as abortion and school prayer, were not nearly as important to Nixon. Consequently, his nominations for the Supreme Court were chosen primarily to advance his “law and order” and school desegregation agendas—agendas the Court eventually endorsed. But there were also political motivations to Nixon’s approach: he wanted his judicial policy to be conservative enough to attract white southerners and northern white ethnics disgruntled with the Democratic party but not so conservative as to drive away moderates in his own party. In essence, then, he used his criticisms of the Court to speak to members of his “Silent Majority” in hopes of disrupting the long-dominant New Deal Democratic coalition. 

           

For McMahon, Nixon’s judicial strategy succeeded not only in shaping the course of constitutional law in the areas he most desired but also in laying the foundation of an electoral alliance that would dominate presidential politics for a generation.

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Editorial Reviews

Law and Politics Book Review
Nixon’s Court  provides a compelling case study at the intersection of constitutional law, judicial politics and presidential studies. . . . [McMahon] 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.

— Frank J. Colucci

Washington Lawyer
McMahon’s book is valuable for insights into Nixon’s
— Leonard H. Becker
Choice
Nixon’s Court provides the most definitive account yet written of the reasoning behind President Nixon’s choices for Supreme Court justicies and the legal and electorial consequences of those choices. . . . McMahon skillfully uses a combination of archival material (including the Nixon tapes), press accounts, personal interviews, and statistical data to make a persuasive case, breaking new ground in the understanding of Nixon’s leadership and its long-term impact on judicial and partisan politics. Entwining insightful historical and legal analyses with a lively narrative, McMahon’s book is highly readable for undergraduate students and general readers as well as academics. Nixon’s Court is an outstanding contribution to presidential studies and Supreme Court history that revises the understanding of the Nixon presidency and the Republican resurgence that followed. Highly recommended.”

 

— M. N. Green

Choice - M. N. Green
Nixon’s Court provides the most definitive account yet written of the reasoning behind President Nixon’s choices for Supreme Court justicies and the legal and electorial consequences of those choices. . . . McMahon skillfully uses a combination of archival material (including the Nixon tapes), press accounts, personal interviews, and statistical data to make a persuasive case, breaking new ground in the understanding of Nixon’s leadership and its long-term impact on judicial and partisan politics. Entwining insightful historical and legal analyses with a lively narrative, McMahon’s book is highly readable for undergraduate students and general readers as well as academics. Nixon’s Court is an outstanding contribution to presidential studies and Supreme Court history that revises the understanding of the Nixon presidency and the Republican resurgence that followed. Highly recommended.”
Law and Politics Book Review - Frank J. Colucci
Nixon’s Court  provides a compelling case study at the intersection of constitutional law, judicial politics and presidential studies. . . . [McMahon] 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.”
Journal of American History - L. A. Scot Powe Jr.
“The standard view of Richard M. Nixon’s staffing of the Burger court is that of ‘a counterrevolution that wasn’t.’ Nixon’s Court by Kevin J. McMahon effectively dispels this idea and replaces it with a well-researched, tightly written critique that demonstrates that Nixon cared about two issues—busing and crime—and that he was effective in moving the Court to adopt positions close to his own. . . . [A] valuable addition to regime literature. It vividly illuminates both the Nixon presidency and the Burger court.”
Washington Lawyer - Leonard H. Becker
“McMahon’s book is valuable for insights into Nixon’s mindset in selecting his Supreme Court candidates."

 

Journal of Interdisciplinary History - Helena Silverstein
“[A] balanced, provocative, and engaging book. McMahon’s valuable effort to correct the record on the Nixon presidency should not go unnoticed.”
Perspectives on Politics - Pamela Brandwein
“[A]n engaging and wonderfully illuminating reassessment of the president’s judicial legacy.”
Reviews in American History
“[A] careful study of how a president could (and in the case of Nixon, did) use judicial policy-making, from appointments of Justices to the nuts-and-bolts of executive enforcement of the laws, to foster political objectives. . . . McMahon has an important story to tell, and he tells it well.”
Mark Tushnet
“Emphasizing Richard Nixon’s use of the power to nominate Supreme Court justices and his articulation of constitutional views as an electoral strategy rather than an ideological one, Nixon’s Court provides a powerful account of why the Burger Court was less conservative than many hoped (and feared) it would be. Kevin McMahon’s important argument connecting presidential electoral concerns to developments in constitutional law makes clear some previously obscured facets of the Supreme Court’s work in the late twentieth century.”
Rogers M. Smith
“Kevin McMahon, who revealed how New Dealers shaped a Supreme Court open to the civil rights movement, now shows how Richard Nixon used the Court to divide Democrats and open the way for a new conservative coalition. But today’s conservatives still seek to push the Court further to the right—so the battle Nixon began continues in the age of Obama and may determine its fate.”
Richard M. Pious
“Kevin McMahon’s skills at archival research, statistical analysis, and constitutional law analysis combine here into a superlative account of Nixon’s judicial strategy, its impact on the Court, and the corresponding implications of Court decisions on his political fortunes. McMahon’s work will force a reconsideration of Nixon’s political strategy and will broaden the focus beyond the simplistic ‘Southern Strategy’ explanations to a consideration of all components of Nixon’s New American Majority. All students of the presidency will benefit from a close reading of this work.”
Terri Peretti
 “This book is fascinating, original, and important. It adds a rich case study to the regime politics literature that claims politicians use courts to advance their electoral and policy aims. McMahon deploys multiple sources of evidence to reveal how Nixon shifted the Supreme Court to the right on school desegregation and law and order as a successful electoral strategy, bringing white southerners and ethnic Catholics into the Republican fold and profoundly reshaping American politics.”
William G. Howell
“In this utterly engaging book, Kevin McMahon argues that Richard Nixon’s judicial strategy, and Nixon himself, have been misunderstood. Nixon’s actual ideology was more moderate than his public rhetoric implied; his concerns about the judiciary extended beyond the legal and into the electoral; and his record, properly understood, proved more auspicious than others have credited him. This important book will force scholars to rethink not only Nixon’s presidency, but also the very criteria upon which they categorize all presidents’ successes and failures.”
Ken I. Kersch
Nixon’s Court will attract a lot of attention and set the record straight in some important areas. The Nixon Court may have been ‘a counterrevolution that wasn’t,’ but McMahon demonstrates that this should not be considered a failure on Nixon’s part, but consistent with his stated objectives.”
Review of Politics - Katy J. Harriger
“McMahon’s excellent account of how Richard Nixon’s judicial strategy was driven by his electoral strategy provides ample evidence that constitutional law is indeed shaped by broader political forces. It also challenges some of the conventional wisdom about the impact of Nixon’s appointments and his motives for making them. . . . It is carefully and thoroughly researched and clearly argued, and offers new insights into an important era that continues to have an impact on our judicial and electoral politics. . . . [A] very fine piece of scholarship.”
Political Science Quarterly - Matthew J. Dickinson
“Kevin McMahon makes excellent use of the extensive archival record and the infamous oval office tapes to provide a persuasive case that Nixon chose his nominees largely on the basis of electoral calculations. . . . Nicely researched [and] well-documented.”
The Barnes & Noble Review

Richard Nixon assumed the presidency in 1969 with a rare gift in hand: a lame-duck chief justice presiding over the Supreme Court. The great progressive Earl Warren had announced his retirement in June 1968 in hopes that Lyndon Johnson could appoint his successor. But the Senate rejected Johnson's man, Justice Abe Fortas, and soon clouded him in a fog of petty scandals. He retired from the Court in May 1969, and Warren — who had stayed on for an additional term — followed him a month later. Nixon, therefore, got to appoint two new justices in his first year as president — and he would see two more Supreme Court vacancies in 1971. Three of the four retiring justices had voted as liberals, so the appointments had the potential to transform the Court.

Yet by outward appearances Nixon made a hash of the business. His first appointment, Chief Justice Warren Burger, is universally regarded as a failure both as a leader and a jurist. Nixon's next two nominees, southern conservatives Clement Haynsworth and Harrold Carswell, were humiliatingly rejected in the Senate. Nixon subsequently appointed Harry Blackmun, who became one of the Court's most liberal members, and Lewis Powell, a moderate swing voter. The only Nixon appointee who was both conservative and successful was William Rehnquist, whom Nixon hoped would serve for thirty years and one day become chief justice. Ronald Reagan made that promotion in 1986, and Rehnquist served for thirty-three years on the Court. But during Nixon's presidency Rehnquist was far to the right of his colleagues and often dissented alone.

In Nixon's Court, political scientist Kevin McMahon offers a new interpretation of Nixon's judicial policy — that is, his Supreme Court appointments and positions on major legal issues. McMahon contends that Nixon's judicial goals were more limited than is generally appreciated, and that he largely fulfilled them. Unlike Reagan, Nixon did not launch a full-scale counterrevolution against the perceived excesses of the Warren Court. Instead he used judicial issues mostly for political advantage. McMahon argues that we should judge him by what he did rather than what he said, and that his actions were often moderate compared to his rhetoric. Speaking loudly and carrying a small stick: leave it to Nixon to chart a new path to success.

McMahon establishes that Nixon's opposition to court-ordered busing and his law-and-order platform contributed to his reelection in 1972. Whereas modern "strict constructionists" treat issues like abortion and school prayer as non-negotiable litmus tests, Nixon deployed Supreme Court politics nimbly and eschewed ideology. He harbored moderate views on civil rights but used desegregation as a wedge to break off southerners and "ethnic" northern Catholics from the Democratic coalition while Patrick Buchanan whispered excitedly in his ear. Nixon was an exceedingly clever politician, and Nixon's Court shows that he "understood he was governing during an era that demanded ideological caution," when riots filled the streets and third-party candidate George Wallace perpetually threatened to steal votes.

In recasting Nixon as a moderate conservative on judicial issues, McMahon makes as strong a case as the facts will allow, fairly telling the story and scrupulously acknowledging evidence that undercuts his argument. But that evidence can at times seem overwhelming. McMahon is right that Nixon was no Reagan and certainly no Wallace, and that modern commentators frequently overlook his progressive domestic accomplishments. But Nixon nevertheless made a number of strongly conservative moves that redirected the Supreme Court for generations.

In speeches, Nixon wielded Court politics like a thug with a crowbar. Pandering to the South, he complained of "regional discrimination"; pandering to working-class northerners, he deplored Court-assisted "appeasement" of mob rule and warned darkly about the "barbaric reality" of the "city jungle." He hammered relentlessly on the busing issue and demeaned the Court by nominating an avowed white supremacist (Carswell) to sit on it. When Leon Panetta — now the Obama administration's defense secretary, then one of Nixon's civil rights officials — aggressively moved to cut off federal funds to schools that defied court orders to integrate, Nixon fired him. And Nixon's Justice Department fought integration in major cases like Alexander v. Holmes County in the South and Milliken v. Bradley in the North, even if, as McMahon points out, it did not participate in every case.

More important, Nixon launched the careers of three of the godfathers of modern legal conservatism: Rehnquist on the Court, and Robert Bork and Antonin Scalia in the Justice Department. McMahon is least persuasive when he tries to downplay the significance of the Rehnquist appointment by artificially separating Rehnquist's tenure as associate justice (credit to Nixon) from his service as chief (credit to Reagan). McMahon says that different issues faced the country after the promotion in 1986. But race, crime, and federalism are always before the Court, and William Rehnquist made as strong a mark on those issues as any conservative justice since Brown v. Board of Education. Appointing him was one of Nixon's most consequential decisions.

As a work of political science rather than advocacy, Nixon's Court ends at description: it contends that Nixon's judicial policy succeeded politically without saying whether the policy was good or bad. It was bad. Nixon cynically manipulated Supreme Court politics to exploit voters' worst instincts: division, mistrust, resentment, and prejudice. He was the first president since Brown to fight integration. And he displayed a fickle willingness to use any position that hurt his opponents — even threatening at one point to nominate former segregationist Robert Byrd to the Court so the Democrats would have to reject one of their own senators. (Byrd had never practiced law.) Supreme Court politics have become a circus. For six years Richard Nixon was the ringmaster.

Michael O'Donnell is a lawyer who lives in Evanston, Illinois. His reviews and essays appear in The Nation, the Washington Monthly, and the Christian Science Monitor, among other publications.

Reviewer: Michael O'Donnell

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Product Details

  • ISBN-13: 9780226561196
  • Publisher: University of Chicago Press
  • Publication date: 10/15/2011
  • Pages: 360
  • Sales rank: 1,000,124
  • Product dimensions: 6.00 (w) x 9.10 (h) x 1.10 (d)

Meet the Author

 Kevin J. McMahon is the John R. Reitemeyer and Charles A. Dana Research Associate Professor of Political Science at Trinity College in Hartford, Connecticut. His books include Reconsidering Roosevelt on Race, also published by the University of Chicago Press and winner of the American Political Science Association’s Richard E. Neustadt Award.

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Read an Excerpt

Nixon's Court

His Challenge to Judicial Liberalism and Its Political Consequences
By KEVIN J. MCMAHON

THE UNIVERSITY OF CHICAGO PRESS

Copyright © 2011 The University of Chicago
All right reserved.

ISBN: 978-0-226-56119-6


Chapter One

Nixon's Victory

Oppositional Presidents and the Cycles of Supreme Court Politics

On the first July night in the summer of 1967, as the asphalt simmered in the heat, tensions began to cool. Inside his corner tavern, Eddie Wenzek felt relieved. Two nights earlier, as riots raged around him, he had kept guard. With rifle in hand, Eddie had stood ready, prepared to defend his property, his livelihood, his lifetime of memories. The night before Eddie armed himself, bands of youths—1,500 strong—were roaming the streets and doing wrong. In a futile attempt to put down the unrest, the police had fired tear gas and shotgun pellets into the crowds, wounding fourteen and intensifying anger. A sympathetic observer conveyed his concern. "They're mad, and I'm scared. Damn scared." Television news crews scurried to the scene, "attracting the attention and stirring the irritation" of those in the streets. One of the youths explained why there was so much antagonism in the air. "White people don't know what it's like to have a policeman always beating you on your head." The next days brought baseball legend Jackie Robinson to town, pleading for peace and hoping for success. But many had already seen enough. The Triple-A Bisons, for one, announced they would abandon their home diamond for the next six games. The War Memorial Stadium—a.k.a. "The Rockpile"—was simply too close to the action.

Indeed, everyone seemed to expect the twilight's noise of hammer on nail—as storeowners shielded their windows with plywood's protection—to soon give way to the sounds and smells of the recent darkness—the screams and shouts, the pounding of feet, the shattering of glass, the stench of the tear gas. But as this day turned to night, an anxious calm—punctured by brief skirmishes—emerged in Buffalo, New York, the Queen City of the Great Lakes. By the next day, the disturbances had all but ceased. Statistics told so little of the tale, but the newspapers still tallied up the totals: "more than 60 injuries, more than 180 arrests, and about $ 50,000 in property damage." There were no deaths. Compared to the many other cities that had or would experience similar strife in the 1960s, it wasn't all that bad. But the city had changed. At the corner of Sycamore and Herman, Eddie Wenzek put his weapon away, never needing to use it. His place, unscathed by the unrest, stood safe. But it would not for long.

At the other end of the state, in Manhattan, someone else had men like Eddie Wenzek on his mind. To Richard Nixon, America was no longer the place it used to be. And in an effort to make it to the White House on his second try, he vowed to speak for "the forgotten Americans," those he would later refer to as members of the "great silent majority." As Nixon put it to the Republican delegates at the 1968 convention, these Americans were "the non-shouters, the non-demonstrators." He continued:

They are not racists or sick; they are not guilty of the crime that plagues the land. They are black and they are white—they're native born and foreign born—they're young and they're old. They work in America's factories. They run America's businesses. They serve in government. They provide most of the soldiers who died to keep us free. They give drive to the spirit of America. They give lift to the American Dream. They give steel to the backbone of America. They are good people, they are decent people; they work, and they save, and they pay their taxes, and they care. Like Theodore Roosevelt, they know that this country will not be a good place for any of us to live in unless it is a good place for all of us to live in. This I say to you tonight is the real voice of America.

Yet, to Nixon, these Americans had been ignored, left out of the national discussion and left to watch as crime soared, the nation's cities burned, its youth eagerly denounced authority, and its war in Vietnam marched into another year without a plan for peace.

While Nixon's words that night spoke to all those concerns, they centered on the issue that would come to define the campaign—indeed a generation of campaigns. The issue attracted a variety of labels—from "crime in the streets" to "law and order"—but election analysts Richard Scammon and Ben Wattenberg probably described it best as "the Social Issue," a phrase that captured the broader amalgamation of anxieties that exploded onto the scene in the late 1960s and early 1970s. Indeed, in the minds of many Americans, "ghetto riots, campus riots, street crime, anti-Vietnam marches, poor people's marches, drugs, pornography, welfarism, rising taxes, all had a common thread: the breakdown of family and social discipline, of order, of concepts of duty, of respect for law, of public and private morality." Americans still considered the war in Vietnam the "most important" issue during the campaign. However, as Scammon and Wattenberg noted, voters were not "primarily" choosing their candidates based on their positions on the war, but they were on "the social issue."

Strikingly, the institution allegedly responsible for causing much of this deterioration of the moral fabric of American society was the Supreme Court of the United States. Indeed, in the hands of Nixon (and third-party candidate George Wallace), the Supreme Court became a powerful tool for attracting votes, a device for constructing a new electoral coalition. In Nixon and Wallace's framing, the Earl Warren–led Court, in its drive to oust inequality and racial discrimination from the core of the American experience, had done more wrong than right. And while they would focus on just a few Supreme Court issues in their campaigns for the presidency, for other conservative critics there was much more to complain about. Specifically, by the summer of 1968, the Court's recent rulings had aided Communist forces, abetted criminals intent on causing harm, threatened to dislodge schoolchildren from the security of their neighborhoods, unleashed a wave of pornographic smut, released murderers from death row, forced prayer out of the schools, and loosened society's constraints on sexual promiscuity. In the next few years, the Court would provide more fuel for these fiery critics by—in their eyes—sanctioning the spilling of the nation's military secrets, allowing antiwar messages—like "Fuck the Draft"—into the nation's courthouses and classrooms, giving free rein to those denouncing the authority of the badge, encouraging women to devalue their traditional role in American life, beginning the process of guaranteeing those unwilling to work a monthly check, and unleashing a massacre on the nation's unborn. It did it all, moreover, in the name of the Constitution, a document nearly two centuries old but interpreted by the Court's nine unelected wise men to keep up with the times, to live even though its drafters had died long ago.

With decisions so easily typecast as unflinchingly liberal, it didn't take much to convince voters unnerved by the rebellious spirit of the sixties that the Supreme Court was at least partially responsible for the unrest throughout the land. And if anyone needed a push to make the connection, Nixon and Wallace stood ready to explain. As Nixon constantly reminded his audiences in one way or another, the Court's decisions "had the effect of seriously hamstringing the peace forces in our society and strengthening the criminal forces." Alabama's Governor Wallace was more blunt, referring to the Court as a "sorry, lousy, no-account outfit" and blaming it for—among other things—the skyrocketing levels of crime across America.

Richard Nixon's Court?

Many have explored the political machinations and consequences of the presidential election of 1968 and the resulting Nixon presidency. In the pages that follow, I do not seek to retell old tales, but rather—with the benefit of time, space, and documentary evidence from the archives—add a fresh perspective to these events and the policies and politics they produced. Specifically, given the commanding role criticisms of Supreme Court decisions played in the campaign, my goals are to provide an accurate account of the Nixon administration's policy toward the judiciary and to assess its success. To date, such assessments have generally been legally focused and largely negative. With an eye toward Nixon appointee Justice Harry Blackmun's 197 opinion in Roe v. Wade, scholars and commentators have usually concluded and social conservatives have vocally complained that Nixon's campaign to turn back Warren Court–style liberal activism came up short. In the words of the most memorable scholarly assessment, it was a "counterrevolution that wasn't."

It is easy to understand why so many have suggested that Nixon failed in his effort to transform constitutional law with his Warren Burger–led Court. After all, when Nixon spoke about the Court, he usually spoke in tough conservative terms. And yet, more than forty years after his election to the White House and the appointment of thirteen of the last seventeen justices by Republican presidents, social conservatives remain decidedly displeased with the Court's product. While many scholars and commentators would agree that there have been significant conservative gains in various areas of the law, the most vocal critics from the right often minimize these gains and emphasize the failures instead. In particular, they are quick to point out those areas of enduring liberalism on "the social issue" or, in today's terms, the "culture war." And indeed, even after Nixon-appointee William H. Rehnquist spent thirty-five years attempting to rewrite the law, many of the policy goals essential to social conservatives had yet to command a Supreme Court majority when his time on the bench came to an end. Put simply, at Rehnquist's death in 005, abortion remained legal, affirmative action stood largely intact, schools could not assist students in prayer, pornography was speedily available with the click of a mouse, and gay marriage was a constitutional right in Massachusetts.

Robert Bork, a man at the center of the conservative effort to transform constitutional law and who was once tapped to join the high bench himself, issued one of the angriest complaints about the lack of progress during Rehnquist's long tenure on the Court. To Bork, Nixon's second-term solicitor general and Ronald Reagan's rejected nominee, "the Court as a whole lists heavily to the cultural left." Writing in 2005, he complained, "no matter how many Justices are appointed by Republican presidents, the works of the Warren Court and the victories of the ACLU are not reversed." Instead, the Court is the most "elite institution in America," in that it is most often "ahead of the general public in approving, and to a degree enforcing, the vulgarization or proletarianization of our culture."

Speaking more softly and writing specifically about the Nixon-constructed Burger Court, the liberal legal scholar Herman Schwartz generally agreed with Bork's assessment, noting in 1987, "many of the basic principles and doctrines developed by the Court under Chief Justice Earl Warren to protect individual liberty and promote social justice have survived the Burger era intact, and some were strengthened." Schwartz added: "One would never have expected this in 1969, when Richard M. Nixon nominated Warren Burger to be the Chief Justice." A few years earlier, Anthony Lewis, the longtime liberal columnist for the New York Times, offered a similar sentiment, writing, "When Warren E. Burger succeeded Earl Warren as chief justice of the United States in 1969, many expected to see the more striking constitutional doctrines of the Warren years rolled back or even abandoned."

Indeed, while it would be easy to conclude that Bork-like conservative expectations for the Court were a creation of Ronald Reagan's more ideological challenge to its liberal doctrine, this is not the case. Rather, during his presidency, many thought, as historian Bruce A. Kalk writes, "Nixon [had] cast his lot with a strain of thinking on the right that sought to roll back the achievements of the Warren Court, especially its expanding interpretation of the Bill of Rights and its crippling of Jim Crow."

I argue, however, that Nixon's approach to the Supreme Court has been misunderstood and misjudged. Mistakes of perception rather than leaps of logic are at the root of most of these flawed analyses, with scholars and commentators assuming aspects of Nixon's judicial policy that simply were not there. They have done so largely for two reasons. First, they have focused too much on what the president said—or what his critics said he meant—rather than on what he and other administration officials actually did with their policy toward the judiciary. And second, far too much significance has been awarded to Nixon's selection of conservative jurists for the Court: namely, his two failed southerners, Clement Haynsworth and G. Harrold Carswell, and his final choice, William H. Rehnquist. This focus has worked to diminish the importance of his more moderate selections—Warren Burger, Harry Blackmun, and Lewis Powell—and to deemphasize other aspects of the president's judicial policy. I pay equal attention to all six of Nixon's high Court nominees and, more important, I analyze them in the political context in which they were chosen rather than as independent ideological entities. I do the same for his two choices for the position of solicitor general, the so-called tenth justice, because a complete analysis of a president's judicial policy requires more than just an examination of the individuals he puts on the Court. It also requires an analysis of the administration's litigation strategy and the individuals at the center of that strategy.

My analysis shows that Nixon's administration pursued a more limited and focused course of action than his rhetoric implied and his critics feared. It also suggests that politics far more than ideology drove all six of his choices for the Court. To be sure, Nixon insisted on selecting "conservatives" for the Court, but he defined that term loosely and certainly did not insist that his nominees be ideologically pure. This is not to say that the president intentionally desired to construct a moderate Court. With some of the Burger Court's rulings, he clearly would have preferred a more conservative course. With others, he would have endorsed the moderate tone. More to the point, Nixon really only cared about a few issues under the high Court's command. On those, he thought a shift in doctrine would be better for the nation and aid him in the construction of his "New American Majority." On other issues, he never displayed a willingness to sacrifice failure at the ballot box in order to create a Supreme Court to match his most conservative rhetoric, believing instead that the unpopularity of the justices' liberalism in some areas of the law might actually help advance his electoral interests.

Two principles dominated Nixon's thinking about judicial policy and strategy. First, electoral success was more important than advancing an ideologically consistent brand of judicial conservatism. More specifically, his policy toward the judiciary was geared less toward constructing a thoroughly conservative Supreme Court and more toward tempering judicial liberalism as a means of dismantling the New Deal Democratic coalition. Second, Nixon's definition of conservatism with regard to altering Supreme Court doctrine was quite targeted. It was largely designed to address two of the most important concerns of the day, law and order and school desegregation, not to unleash a complete conservative counterrevolution against the Warren Court and the ongoing rights revolution. And even on those two issues, Nixon did not demand total ideological loyalty from those he considered for the high bench. Rather, he sought out conservatives because he thought they would advance the positions most likely to solve the problems at hand. Thus, when liberal senator Ted Kennedy of Massachusetts said in 1971 that the president and the other "men who are involved in the selection of Supreme Court nominees ... remind me of the people who used to put up 'impeach Earl Warren' signs on the highways," Nixon angrily dismissed the comment in a private conservation with conservative aide Charles Colson. To Nixon, the fact that Kennedy was saying that he and his closest advisors were "a bunch of radical rightists," was "unconscionable," a "smear" of the worst sort.

(Continues...)



Excerpted from Nixon's Court by KEVIN J. MCMAHON Copyright © 2011 by The University of Chicago. Excerpted by permission of THE UNIVERSITY OF CHICAGO PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

List of Illustrations
Acknowledgments
Chapter 1 Nixon’s Victory: Oppositional Presidents and the Cycles of Supreme Court Politics 

Part I Circa 1968: Law, Order, and the Race for the White House
Chapter 2 The Fight for the Nomination: Holding On for a Second Chance
Chapter 3 Running to Be “the One”: Nixon, Divided Democrats, and a Chastened Court

Part II The Politics of Desegregation
Chapter 4 “Instead of Listening to What We Say . . . Watch What We Do”: Electoral Strategies, Practical Politics, and Nixon’s Judicial Policy
Chapter 5 Leading by Following: Nixon, the Court, and the Road to School Desegregation

Part III The Dynamics and Difficulties of Remaking the Court
Chapter 6 The Party of Lincoln’s Last Stand? The GOP Divide and the Rejection of Nixon’s Southern Strict Constructionists (or, How Senate Republicans Made the Court More Liberal)
Chapter 7 Fifty-Three Seconds That Shaped the Court: Nixon’s Acceptable Southerner and Accidental Ideologue (or, How Liberals Made the Court More Conservative)

Part IV The Political and Electoral Consequences of Supreme Court Decisions
Chapter 8 Fighting Busing, Crime, Smut, and Social Disorder in America: Strong Rhetoric, Selective Action
Chapter 9 Judicial Decisions and the Ballot Box: Nixon’s Court and the Division of the Democratic Coalition
Chapter 10 Evaluating the Conservative Counterrevolution through the Nixon/Rehnquist Nexus

Appendix 
Notes 
Works Cited

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