Erwin griswold was surely one of the most remarkable lawyers of the last century, distinguishing himself in many ways during his 65year legal career. Among other things, he was a renowned expert in tax law. He was a professor for a long time. He was the dean of the Harvard Law School for 21 years and he was the solicitor general in an unprecedented and on succeeded on succeeded phenomena and of being appointed by Lyndon Johnson a democrat, and being kept on for several years in the Richard Nixon administration, which we will hear about tonight. He was also the Historical Societys first chairman. Following his term as closer journal, solicitor general the dean or just dean as we called him to his face joined in 1974. When i joined in 1985, i had the pleasure to work with them on a number of cases. Nothing significant. Commercial disputes, pro bono criminal appeals. But i was quite taken with the fact that that had no effect on the level of enthusiasm, interests, and just effort into which he put on these cases. I remember thinking at the time what a remarkable model he was even late in his life, to the lifelong commitment of doing the things that make the law work. When the dean died in 1994 Jonathan Rose asked the society what they could do to benefit the memory of the dean. After a discussion, they voted to award the Erwin Griswold prize to the author of the best book on constitutional law. That award has been given five times since then. First to gerald cantor, and to Andrew Kaufman for his biography of benjamin cardozo, and then to Edward Purcell for his book brandeis in the progressive constitution, and then to george martin, and finally, for the biography of louis brandeis. Our winner tonight is professor kevin j. Mcmahon. He is a professor of Political Science at Trinity College and he is being honored for his book nixons court its challenge to political liberalism and its consequences are co. The book provides fascinating insight on what drove nixons nominations to the court. We are assembled in the courtroom through the good offices of our host justice antonin scalia. Justice scalia has been a good friend of the society throughout his nearly three decades on the court and the society has long been berry grateful for his help and support. Over the years he has many times hosted dinners, introduce speakers, delivered lectures always with his usual good humor. He was born in trenton, new jersey. He received a bachelor of arts in history at georgetown, and his law degree from Harvard Law School. After a year as a sheldon fellow traveling throughout europe in 1961, Justice Scalia went to work in cleveland, ohio for a small firm. According to those at the firm at the time, as reported in a biography of Justice Scalia, he was highly regarded at jones day and probably would have made partner, but he left in 1967 because he had long intended to teach. At that time, he became a professor at the university of virginia and he moved his family to charlottesville. After four years at charlottesville, in 1971, he entered Public Service in the Nixon Administration. First as the general counsel at the office for total medications policy in the executive office of the president , and there, among other things, worked on the formulation of federal policy for the then new industry of cable television. From 1972 to 1974, he was a chairman, focusing on improving the federal bureaucracy. That is all cleaned up now. We do not have to worry about the bureaucracy anymore, but a modest undertaking of the time. Then he was nominated and confirmed as assistant attorney general in charge of the office of Legal Counsel at the department of justice, where he stayed until the end of the Ford Administration in 1977. Around that time, Justice Scalia returned to teaching, this time at the university of Chicago Law School and the next few years, he was also a visiting law professor at stanford and georgetown. Then just a few years later in 1982, president Ronald Reagan appointed him to the United States court of appeals for the district of columbia. And then Ronald Reagan nominated him for the position he held today as associate justice of the Supreme Court. He was confirmed in 1986 by a vote of 98 to zero. I am honored to present Justice Scalia. [applause] Justice Scalia thank you very much, don. I welcome the opportunity to present the winner of the Erwin Griswold prize lecture. The reason being, that Erwin Griswold was my dean of Harvard Law School. Not only that, but one of the reasons i ended up going to jones day in cleveland. Im a new yorker. Cleveland. Whoever heard of cleveland . I went up there to interview and on the plane on the way back, who was sitting next to me, but my dean . The untouchable Erwin Griswold. He was a great man. His only flaws, as far as i have been able to discern is he was utterly incapable of smalltalk. Utterly incapable. He gave you a little headache whenever you were with him, it was always something very serious he wanted to talk about. He was a great man. Appeared before this court when he later joined jones day. In fact he was one of the few people who would appear before this court with any regularity. We did not have in those days much of a Supreme Court bar. We have a lot of people who were members of the bar, but not many lawyers who appear with regularity. That has changed. We do that now. But in those days, Erwin Griswold was one of the few. And he spoke highly of jones day and urged me to go there because he was a clevelander originally. Anyway, enough about dean griswold, as i always called him. Let me say a few words about todays recipient of the Erwin Griswold prize lecture award. Professor Kevin Mcmahon is the John Mack Meier professor of Political Science at Trinity College. He got his ba in Political Science at Trinity College. He got his ba in new york and his phd and politics from brandeis. His publications include reconsidering roosevelt on race how the presidency paid paved the road to brown, published by the university of Chicago Press in that was the 2004. Winner of the american Political Science Association Award for the best book on the american presidency published in 2004. His latest book, which will be the subject of his remarks this evening is nixons court his challenge to judicial liberalism and its political consequence. It was published again by the university of Chicago Press. I could continue to list the professors accomplishments but that would reduce the time left for his remarks. I hope you will join me in welcoming professor mcmahon. [applause] professor mcmahon thank you. This goes up, so i get to play with this toy. It is really a great honor to be here this evening, and before i begin, i want to thank the Supreme Court Historical Society for inviting me, the griswold Prize Committee which i think made a fine choice. [laughter] Justice Scalia for his generous introduction, Trinity Colleges new president is here. My editor at the university of Chicago Press. My parents are here. Family members, other family members and friends have made the trip down. Special thanks to my son and my wife pamela. So, as the subtitle suggests this book is a political analysis of Richard Nixons challenge to the liberalism of the courts and the electoral and legal consequences of that challenge. There are many moments in the book im only going to talk about three tonight and its still going to take me about 40 minutes. These moments come from different parts of the book, so they are not chronological. Moment one is august 19th it68, which centers on that years as a that years president ial campaign. Moment two, october 21, 1971 when Richard Nixon nominated lewis paul and William Rehnquist to the court, and moment three is april 20, 1971, which was the day the Supreme Court announced its decision in swann vs. Charlotte mecklenburg. For me it is important date because it helps explain the Nixon Justice Department litigation policy on School Desegregation. Let me talk about the beginning of the book. I begin with a story about eddie, who owns a bar and grill on the east side of buffalo, new york. The full story is wonderfully told in the last find time, but for me, he represents the kind of voter Richard Nixon was trying to attract. Along with white southerners disgruntled with the Democratic Party nixon sought to appeal to white, mostly catholic, bluecollar workers in the northern states. While these voters had overwhelmingly voted for kennedy, eight years later nixon sought opportunity. While traditionally they were culturally conservative and by 1968, they were uncertain about the liberalism of the Democratic Party. Now to moment one. It is the final night of the Republican Convention in miami. In Richard Nixons mind in the summer of 1968, 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 referred to later as the members of the great silent majority. As nixon put it that night these delegates were the nonshouters, the nondemonstrators. They were good and decent people who work, safe, and paid their taxes. But in recent years they had been left out of the National Discussion as the nation had been burned, its used announced use denounced authority, and the war in vietnam marched into another year without a plan for peace. Nixons words focused on what would define the campaign. The issue attracted a variety of labels from crime and the streets to law and order but it was best described as a social issue. A phrase that captured the broader amalgamation of anxieties that exploded the 1960s and 1970s. Indeed, in the minds of Many Americans as one commentator has written, ghetto riots, street crime antivietnam marches. Welfarism,rising taxes all had a common theme the breakdown of the family, of social discipline, of order, of duty, or respect for law. And strikingly, the institution allegedly responsible causing the erosion of the moral fabric of American Society was the Supreme Court of the United States. To its critics, from the core of the american expense, the warren court had done more than right. Its racist decisions had abetted criminals intent on causing harm, threaten to dislodge schoolchildren from their neighborhoods, unleash a wave of pornographic smut, release murderer some death row, force prayer out of Public Schools and it did in the name of the constitution, document two centuries old but interpreted by the court 9 unelected wiseman to keep up with the time, to live even though its drafters had died long ago. The decision so easily typecast as liberal. It did not take much to convince voters unnerved by the rebellious spirit of the 19660s the Supreme Court was partially responsible. If anyone needed the push to make the connection two of the main contenders for the presidency stood ready to explain. As Richard Nixon constantly reminded his audience, the courts decisions had the effect of hamstringing the peace forces in our society and strengthening the criminal forces. Third Party Candidate George Wallace was more blunt. Referring to the court as a sorry, lousy, no account outfits and blaming it for just about everything. Indeed, in the hands of nixon and wallace the Supreme Court became a powerful tool for attracting voters. A device for constructing a new electoral coalition. For example, the Nixon Campaign features a powerful commercial like one entitled the first right of every american, which meant the right to be free from domestic violence. Nixons use of the phrase the first civil right, turns the notion of civil rights on its head. No longer were civil rights about ending racial discrimination. There were about combating crimes in the streets. Hearing these words, liberals were alarmed. Nixons election they feared his appointments would challenge and even perhaps even reverse some of the warren courts great decision expanding rights. However, most analysis of the burger Court Suggests the president did not succeed. In the view of liberal and conservative scholars and commentators, it was a counterrevolution that was not. The berger court not only left many of the war in Court Decisions untouched, it expanded rights. Writing in 1987, and Herman Schwartz noted one would never have expected this in 1960 nine when Richard Nixon nominated Warren Burger to be chief justice. My argument is that Richard Nixon did not fail. Rather, his approach to the Supreme Court has been misjudged. I argue two principles dominated Richard Nixons thinking about policy. First, elect for success was more important than advancing an ideological, consistent brand of judicial conservatism. More specifically, his policy towards the judiciary was geared left towards constructing a sick a Supreme Court and more towards tempering liberalism with the hopes of dismantling the new Deal Democratic Coalition and creating a republican majority. Second, president nixons definition of conservativeims was targeted definition of conservatism was targeted. With regard to doctrine, it was designed to address two of the most concerns of the day law and order and School Desegregation. It was not designed to do on leash a complete conservative counterrevolution against the war in court. This leads to moment two. October 21, 1971. Excuse me. When president nixon nominates lewis powell and William Rehnquist to the court. First some background. President nixons appointments to the court, which guarded a great deal of attention at the time, are really a mixture of different types of nominees. Significantly in naming four justices to the nations highest tribunal in the space of 2. 5 years, president nixon had an unusual opportunity to affect constitutional doctrine. No president had placed four men on the court so soon and research into his first term since Warren Harding had done so. Nixon was lucky three of the departing justices, rome warned, earl wareenren and black were liberals of the first order. President nixon ultimately nominated six individuals to the court. In may, 1969, he fills the Courts Center chair with a noncontroversial war and earl burger. Warren earl burger. Newspaper reports concluded that berger was tough on lauren order and moderate on civil rights. That record allowed him to win a quick and easy confirmation. Selecting a chief justice with an image of being tough on law had great appeal to the president. Consider two polls taken before or just before bergers nomination and just after. I january, 19 69 gallup poll asked the following question. Do you think courts in this area deal too harshly or not harshly enough of criminals . 2 of respondents answered too harshly. Another poll place blame for the difficulty in combating crime on the doorstep of the Supreme Court, it showed that 82 of american men, 50 a great deal and 32 somewhat agreed that recent Supreme Court decisions had made it more difficult to punish criminals. Filling a vacancy created by the resignation of which also occurred in may, 1969, was much more difficult for president nexen. Nixon. He focused on finding a southerner. But the first southerner he nominated, clements hainsworth, was rejected by the senate. What is striking about the rejection is 40 of republican senators voted against the nomination. He followed that up with a fli oridian. Who was also rejected by the senate. This time 32 of republican senators voting against the nomination. Such dissent towards the newly elected president s choices for the court by members of his own party would be almost unthinkable today. Nearly a year after the Fortis Reckitt resignation, the Senate Confirmed Harry Blackmun who was bergers twin and the best man at his wedding. Like berger, blackmun was said to be conservative online order and moderate on civil rights. And like the chief justice, he won quick and easy confirmation. Fast forward to the fall of 1971, our moment two. Nixon has the opportunity to fill two more vacancies. In doing so, he was determine one would be a southerner. After the two failures with haynesworth and carswell. For the other spot he was determined to find another nominee who had would packa political punch. A woman or a catholic or another southerner. In reviewing these selections, you can get a sense of how much president nixon wanted, at least initially, to use the choices for electoral gains the cousin of his comment because his conversations were recorded. Consider president nixons desire to appoint a woman. It certainly was not because he thought highly of women. At least, not from what he said on the tapes. At various points the president makes disparaging remarks about women. For example, at one point, im not for women in any job. I do not want any of them around. Thank god we do not have any in the cabinet. Whether these thoughts represent the stuff of locker room chatter to the boys or his true feelings, they did not deter from him appreciating the political snippet can sub naming the first female justice. Indeed, the president himself was the most persistent advocate on those for appointing a woman to the corporaurt. Im against it myself but it has got to be done. This is nixon talking. Politically, it is not going to lose a lot of people will grumble and say why a woman . To a hell of a lot of women, it can make believers out of them. That is what he gets down to p review see my point . You poll the country, 60 would say ok to woman judge. As far as those who do vote against nixon, because he voted he appointed a woman, zero. On the other hand, how many vote for nixon because he appointed a woman . That is a hell of a thing. Chief Justice Burger was not fond of the idea of appointing a woman to the court. And he threatened to resign if one was appointed. But the president did not care. He vwowed to accept his resignation. Regarding the appointment of a catholic, nixon aide Patrick Buchanan was the most forceful advocate inside the white house. On september 20, 1971, 3 days after justice black announced his retirement from the court, buchanan wrote to the president not blacks, not jews, but ethnic catholics poles, irish, italians slovaks, this is where the ducks are. We ought to be canvassing the best legal and judicial conservative minds and the italianamerican irishamerican polishamerican communities. Nixon was receptive to the idea. Responding to one of his memos in the recorded conversation hes right. Then endorsing ethics to retire see at you know, it is too bad we do not have an honest italian judge i know of. Wish we did. Wish we had a pole. There aint nothing in it for us to appoint a protestant. It Means Nothing to the protestants. It could mean a hell of a lot to catholics. What is motivatingn . Nixon nixon . The president has to consider the possibility of another wallace candidacy. This is basically gearing towards election time. If wallace did run, naming a southerner or two would help them with the once in the once thoroughly democratic south. But if wallace, sorry if wallace did not run, naming a southerner would help him in a once democratic south. If he did run, the choice of a woman or an ethnic catholic would ehlp ihelp n the battleground state strategy similar to the one run in 1968. In reviewing mixes thoughts, it is important to note that the pool of potential nominees was quite limited. Since nixon wanted someone who was qualified, particularly after the carswell rejection. Reliably conservative and politically beneficial. And more often than not he has to compromise on one of those qualities. Remember at this time, the Republican Party has been in the minority for much of nixons career. The democrats have dominated the presidency from 1921 with fdrs election up until 1968. Only eisenhower is the only republican president between. In between. So, with these vacancies he quickly settles on naming a southerner, an Arkansas Attorney named herschel friday and a woman, judge Mildred Lilly of california. Lilly happened to be catholic and was married to an italianamerican. When hearing this bit of news, the president responded with joy. As a trial balloon the administration released the names of six nominees but the president has already decided on which two he would appoint friday and lilly. Was the list was released, however, there was criticism. A liberal group called the six a bewildering assortment of mediocrities. Ted kennedy added that list represented one of the insults to the Supreme Court in his history. Among the justices there was concern as well. According to one news report justice harlan, whose retirement had created the second vacancy and who was often described as the courts conservative conscious was so outraged that he seriously considered writing the president a letter of protest. When one liberal judges after reading judge littlllys opinions got drunk. Within the administration, that was also concern. During the vetting process, lawyers had raised questions about the qualifications of the two nominees and their commitment to conservatism. The president was attracted to the political symbolism, believe them to be sufficiently conservative and intended to appoint them. But then then Aba Standing Committee on the fed is just very as unqualified for the court. On the federal judiciary rated them both as unqualified. In the past, nixon probably would have sent the names to the senate anyway. But things were different now. It was time to search again. Still, he was angered by his opponent that his opponent denied him an opportunity, had denied him the political payoff yet hoped for. He viewed the lilly vote as overkill, and next return of the screw. In stearate starting the process over, the president focused much more on the quality of the nominees and not the politics of the nominees. Quite quickly he settled on a resistant but very wellrespected lewis powell of virginia, who would be nixons southerner, and Wayne Rehnquist of arizon,a, who did not offer much in the way of symbolism but was highly regarded for his intellect. Before he decided on rehnquist, the president pursued another southerner. Senator howard baker of tennessee. In a wonderful, revealing phone conversation with attorney general mitchell the president agonized about whether to appoint a once reluctant baker or rehnquist. For 53 seconds, Richard Nixon did not say a word during that phone call. As mitchell waited attorney general mitchell waited for an answer. President nixon was clearly mulling over what a baker appointment would offer. The need to decide brought unesaase, almost pain, as he sighed several times. As he said to his attorney general rehnquist has a hell of a record. First in his class. Law clerk to one of the great judges of the century and practiced law is a lawyers lawyer. And with that statement, the decision was made. He was convinced by his own argument. Howard baker would stay in the senate and William Rehnquist would become the fourth and final nixon justice. In private conversation, however, the president still year and for some political payoff with regard to rehnquist. At one point, he was upset to learn that rehnquist was a wasp. Joking that he should switch religions. At another point, the president joked again, suggesting that rehnquist did a sex change operation. John ehrlichman responded takes too long. In the end nixons liberal opponent had denied him the big political payoff that would have come with naming a woman or an ethnic catholic to the court but in doing so, they helped cut a path for William Rehnquist to be, justice, a justice who would prove to be one of liberalisms most intern critics and during critics during his 30 years on the bench. They help explain why many expected nixons court to be more doctrinally conservative than it actually was. Specific actions of the administration are perhaps even more revealing. This leads us to moment three. Moment three is able 20, 1971, which again, was the day the Supreme Court announced its decision in swann. Some background. President nixons first solicitor general as we heard earlier was Erwin Griswold. I suggest this appointment was highly significant. After all griswold has served in the same post during the johnson administration. In keeping his presidencys h i predecessors solicitor general an unprecedented event in the history of that office, nixon signaled that his administrations litigation strategy would be more about taming warren liberalism then igniting a counterrevolution. To be sure, in his second term with employment of robert bork as solicitor general, nixon suggested he would pursue a more aggressive litigation strategy. But here i focus on the first term. Consider six major cases. Six major cases. I focus more on their political significance. That were argued during the president s first four years. Roe versus wade. Cohen v. California, dealing with profanity. Dandridge versus williams dealing with welfare. San antonio versus rodriguez School Finance and the right of education. Feermanrman v. Georgia, a death powell Death Penalty case. In each case, the Nixon Administration chose not to file a brief. But the president was quite interested in the area of School Desegregation and this leads to april 20, 1971. It is important to note that the president relied heavily on the distinction between de jure segregation and effective segregation. De jure meaning segregation by law and of fact out de facto segregation meaning segregation in fact. De jure was more of an issue in the south. A very important issue in the south. And the de facto segregation issue was more of an issue in the north and west. With regard to de jure segregation in the south, the president accepted desegregation of the school as a fait aco compli. Rather than turning back the clock and as least one white house aide suggested, the president saw it in alternative route, devising a plan while deferring to the court that saw to lessen the presumed electoral burden of implanting a law. In other words, he did not want ownership of civil rights enforcement. The onus should lie elsewhere. Still in the end, as one historian considers this approach made nixon the greatest school desegregate or in american history. And the president after his presidency, president nixon was proud of the fact that so much desegregation had occurred and had occurred quite peacefully. At the same time president nixon would seek to take advantage, electoral advantage of the aftereffects of this enforcement, hoping to build an enduring elect for coalition devoted to advancing principles in mind with his own. Consider his reaction to swann. The reporting on the case adjusted the court had rejected the administration stance. First sample, the New York Times had a headline that read up in court 90. Back busing to combat south rejecting the administration stance. The writers of the newspapers around the nation agreed concluding that the decision was a major defeat for the administration. However, the perception of the decision within the Nixon Administration, with an adjusted department, was starkly different. As griswold wrote the position he argue before the court was the view that was taken by the justices. Quoting griswold. Attorney general mitchell reported to the president the important thing is that we are not faced with the de facto question and not faced with racial balance. Nixon did not openly reject the decision. As one might have expected from reading the times. In private, Key Technology couldve been worse because the court he it knowledge to couldve been worse because the court couldve taken an aggressive stance. But it did not. The president wanted to send a message that what his part his personal opinion did not matter. Rather, now the justices had rolled, it was his duty as president to carry out the mandate of the court. In the north, the president pursued a more obstructionist line. Emphasizing its the distinction between de jure and de facto segregation. But it hardly match the president s rhetoric. While he hope to convince the court that he did not it did not need to order instant integration, president nixon was not willing to stand in front of a schoolhouse door. What does this mean for evaluating nixons judicial strategy . I reached two conclusions. And then offer a more global conclusion with regards to president and general. The first conclusion. Deals with president nixon and the development of constitutional doctrine. Here im focusing on politically salient decisions. Given his specific focus on law and order and School Desegregation, was nixon really a failure with regard to his efforts . The evidence suggest he was not. Consider, for example, the 1974 busing decision. And the 1976 Death Penalty decision. In those two politically charged cases, the court was all for the nixonappointed justices in the majority, deliver the results that were consistent with the views of the nixon and Ford Administrations. My second conclusion deals with president nixon and elect for politics. Here nixons judicial strategy i argue was a success as well. His 49 state victory in 1972 represented the largest popular and electoral vote victory of any republican candidate since the party was formed in the mid1850s. In capturing nearly 61 of the vote, president nixon not only attracted southern supporters of George Wallace but urban northerners that would learn that misleading label reagan democrat. I suggest this term is misleading because they were nixon democrats before they were reagan democrats. Nixon achieved this success in part by pursuing your judicial a judicial centered social Issue Campaign is spoke to the concerns of members of his great silent majority and helped construct a republican majority at the president ial level, a majority that would endure for a generation and provide support for conservative movement intent on transforming constitutional law. And consider the extent of this success. If you look at the president ial elections. 1972, as i said, a 49 state landslide. 1976, even with watergate, and fords pardon jimmy carter wins just 50. 1 of the vote. In 1980, Ronald Reagan wins 44 . Sorry, 44 states and 51 of the vote. In 1984, reagan wins 49 states and nearly 59 of the vote. And in 1988, George Hw Bush has a comfortable victory with 55 and 40 states. In my global conclusion is simply this at particular historical moment president s may be powerful agents of constitutional change. Thank you. Don thanks a lot for that great and fascinating discussion. I want to point out, for those of you that found it entertaining and tantalizing, the book is available in the gift shop. There are a limited number of signed copies and you can get him to write more in the book a few were to go and buy it. I invite you to do that. The last thing we want to do in here before we adjourned to the food and the drink is to make the actual presentation. I want to invite the appropriate people to com forward. Justice scaliae, professor mcmahon, and also professor morrow of washington and lee, the head of the committee. And also i want to invite kevin orr, the new partner in charge of joan jones days washington office. He just returned from two years as the manager of detroit where he made the news more than he wanted to. In a number of different ways. Don i want to give this. This is the embodiment of the prize. Somehow we can assemble ourselves and pose for a picture if we can get organized to do that. Justice scalia here im handing it to you. Cable satellite corp. 2015] national captioning institute, which is responsible for its caption content and accuracy. Visit ncicap. Org] Justice Scalia you should know that the prize consists of more than this piece of marble. Don im advised that on this premises checks cannot change hands. The prize will be given to him and another place. But with that, i want tot ah thank professor mcmahon. And Justice Scalia for his good office. We will adjourned to the east and west Conference Room for food and drinks and more good times hopefully. Thank you very much. [applause]
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