Nixon’s Uses, Abuses and Muses on the Supreme Court

After spending four years transcribing all of Richard Nixon’s secretly self-recorded Watergate related conversations, about a thousand of them, and digesting them into narrative and dialogue for a book, The Nixon Defense: What He Knew and When He Knew It, I am deeply steeped in his presidency. Indeed, I know much more about him and his administration now than when I served as White House counsel.

While Nixon was not the first, nor certainly the last, president who sought to impose his politics on the U.S. Supreme Court, I came across information when examining his true role in Watergate based on his recorded conversations. It was the Supreme Court that effectively ended Nixon’s presidency, when it ruled against him unanimously forty years ago to the day—July 24, 1974—that I am writing this column. So I thought I might share some of the new information I discovered regarding Nixon’s uses, abuses and muses on the high Court.

Nixon’s Influence on the Court

Nixon campaigned for the presidency claiming he wanted to change the Supreme Court. And he did. Few presidents have had as great an influence on this institution as did Nixon. When it was all said and done he appointed a Chief Justice and three Associate Justices—including one (William Rehnquist) who would later become Chief Justice. As I wrote in my first book based on Nixon’s tapes, The Rehnquist Choice, Nixon not only filled four seats; he created a vacancy by aggressively pursuing a sitting Justice, Abe Fortas, whom he forced from the bench with a threat of a criminal investigation against his wife and a former law partner.

Nixon had hoped to create even more vacancies he could fill. He used proxies, like House Minority Leader Gerald Ford, to go after others. For example, Ford tried to concoct an impeachment proceeding against Justice William O. Douglas to force him off the Court. But Douglas refused to be intimidated off the Court, and Ford had no real case against him. Yet Nixon’s influence on constitutional law emanating from the Court he reshaped was anything but accepting of his often-radical politics.

The Nixon Justice Department, on a regular basis, aggressively pursued ideologically driven cases before the Supreme Court, but with limited success. In fact, these efforts occasionally backfired. I will mention but a few. Like the landmark ruling in June 1972 in United States v. U.S. District Court, better known as the Keith Case, named after the U.S. District Court Judge who rejected the claim of the Nixon Justice Department that warrantless wiretaps could be undertaken with the simple approval of the Attorney General—without any statutory basis, rather as part of the president’s inherent powers.

At the time, the Nixon Administration’s contention was so over-the-top that their own Solicitor General, Erwin Griswold, former Dean of Harvard Law School who had been appointed S.G. by President Lyndon Johnson but remained on in the Nixon Justice Department, did not want his office to argue the case before the Supreme Court. So instead the case was argued by Assistant Attorney General Robert Mardian, a rightwing ideologue who did not argue law, for he had none, rather equated the president to a king, and claimed he had powers that trumped the Fourth Amendment. Nixon lost in a unanimous ruling issued on June 19, 1972—two days after the arrests of Nixon reelection committee burglars at the Watergate.

There was a string of landmark rejections of Nixon’s philosophy, actually enough to fill a book. Two such cases that could fill their own chapters make the point: New York Times v. United States (1971) and United States v. Nixon (1974), mentioned above. Both rulings rejected Nixon’s thinking. In New York Times v. United States, the Nixon Justice Department—once again it was the conservative ideologue Bob Mardian—largely hoodwinked Solicitor General Griswold, and convinced him that the leaking of the Pentagon Papers, a study of the origins of the Vietnam War undertaken for LBJ, posed a dire threat to the nation’s national security. A six-Justice majority, many of whom personally examined the leaked documents, correctly saw they were not a threat to national security, and refused to set aside the First Amendment in the name of prior restraint demanded by the government.

Suffice it to say, Nixon moved the Supreme Court philosophically to right, but not to the radical right that many of his own beliefs embraced.

Nixon’s View of the Supreme Court

In listening to countless hours of Nixon, and I had to review even more than the thousand conversations my graduate student assistants and I transcribed, I found frequent mentions of the Supreme Court. While I was not searching for this information, often I could not miss it because it came up in conversations with which I was interested. Since the book will be released on July 29, and I will be talking about it with NPR’s Diane Rehm Show on July 28, I am exercising the author’s privilege to leak a few tidbits here, matters relating to the Supreme Court, which I found both troubling and telling.

Because Nixon was not getting the kind of rulings he had hoped for from his appointees, he seemed to hold the Court in minimal high esteem. This became clear in both his words and actions. Nonetheless I was surprised with his actions relating to one of the highest profile cases pending during the 1972 presidential election, where he authorized highly improper behavior in the handling of the criminal case against Daniel Ellsberg, which was being prosecuted in Los Angeles. (I was also surprised at his words, but I will come back to them because they were not new to me.)

Ellsberg was being criminally prosecuted for violation of the Espionage Act of 1917. Nixon’s chief domestic adviser (and former White House counsel), John Ehrlichman told Nixon he did not believe the government could win the case against Ellsberg. Nonetheless, Nixon had wanted the prosecution to go forward. Then, after the case had commenced in California, Ellsberg’s attorneys requested the proceedings be stayed, because they did not believe the government had been fully forthcoming in reporting whether or not they had wiretapped Ellsberg—information to which Defendant Ellsberg was entitled. When the U.S. District Court for the Middle District of California refused to grant the stay, Ellsberg’s attorney went to the Associate Justice who had jurisdiction over this trial court: William O. Douglas, who granted the stay.

Ehrlichman, however, did not want the Ellsberg case to go forward until after the 1972 election. So he instructed the Justice Department not to push to resume the trial. But more importantly, as he informed Nixon, he was going to make certain the full U.S. Supreme Court did not overturn the Douglas stay.

During an Oval Office conversation on August 3, 1972, Ehrlichman told the president, “I’m going to talk to [Chief Justice Warren] Burger this week, and I would be inclined to indicate to him that this is to your advantage not to have the Ellsberg case tried until after the election. Unless you have serious objection, I’m going to give him that signal.” Nixon agreed. And it was done. It was, of course, a highly improper ex parte contact by Ehrlichman, not to mention the Chief Justice had to know that Ellsberg’s attorney should have been present as well.

Ultimately, the extralegal activities relating to Ellsberg backfired. Not only had Ehrlichman authorized an illegal “covert operation” to obtain information to try to smear Ellsberg, but at the very moment he was getting the Chief Justice to keep the stay in place while Ellsberg’s lawyers pressed the government for wiretap information, John Ehrlichman was sitting on that information. The Ellsberg wiretaps were sitting in his White House safe.

The Supreme Court Turns on Nixon

On February 28, 1973, when I was meeting with Nixon—and such meetings were rare, for I reported to chief of staff Bob Haldeman and Ehrlichman rather than to the president—our discussion turned to future potential vacancies on the Court. (When vacancies occurred my job was to interview and vet the potential nominees, but I was not really involved in the selection process. Although several of those I vetted were clearly unqualified so they were passed over.) That February 28 conversation prompted Nixon to give me his take on the Court.

When I mentioned I had learned that Justice Thurgood Marshall was in poor health, based on information a former law clerk had shared with me, Nixon noted, “Marshall, of course, is a black.” Then the president added, “He is so God damn dumb. We can get one that is as bad as he is,” Nixon added, and proceeded to name several black candidates he might consider for the Court. He noted they might not be towering figures, but said, “[W]ho the hell is a towering figure on that Court? I don’t have to say that Douglas has not got a brain; [William] Brennan’s a boob; Thurgood Marshall’s a boob; [Byron] Whizzer White is better than ordinary, and he’s above average; Potter Stewart is a weak man, Potter’s a nice fellow but weak and not strong, for some thing happened to him since he’s been here.”

Nixon next turned to his appointees: “Our own people, Blackmun is slightly above average; [Chief Justice] Burger is way above average, because of his administrative abilities; [Louis] Powell is way above average. And that’s the bulk of it.” He had missed one, so I asked, “And Rehnquist?” Nixon quickly declared, “Rehnquist is the top.”

But the most historic case that Nixon asked the Court to resolve was the question of his power as president to withhold information from a grand jury relating to Watergate. The Watergate Special Prosecutor subpoenaed some 64 conversations, and Nixon refused to turn them over. It was that 8 to 0 ruling that ended his presidency in United States v. Nixon. (Associate Justice Rehnquist was the only Nixon appointee who recused himself in that case.) That ruling ended the bogus defense that he had known nothing of Watergate until I had told him on March 21, 1973, when I warned him there was a cancer on his presidency. It has taken me some 40 years to learn why Nixon came up with this defense, and to unravel it I had to understand his day-by-day role in Watergate from the outset.

More than answering historical questions, however, I found a surprising degree of human drama, much more than I had expected. This made it interesting to research, and hopefully makes it more than a bit of extraordinary history to read. While I knew only too well the general outlines of the story, I did not know the details, nor did I anticipate learning much human nature in digging out this account, including how federal judges and justices can think for themselves when given lifetime appointment.