BOOKS OCTOBER 24, 2011
by Kevin J. McMahon
University of Chicago Press, 360 pp., $33.95
POLLS SHOW THAT Americans admire the U.S. Supreme Court more than any other major government institution. Yet Americans know little about the individual justices, and those who can identify the justices rarely give them good marks for performance. The commentariat can never make up its mind whether the Court stands above politics and serves as an invaluable check on the excesses of democracy, or advances the ideological agendas of the particular justices who form majorities. Usually it vindicates rights when we like the results and imposes ideological outcomes when we do not.
Political scientists take a more Olympian view. For them, justices are wind-up toys set in motion by the president who selects them: they totter down a path determined by the president’s political agenda. If you do not like Justice Scalia’s opinions, then you should blame President Reagan, who appointed him, not Justice Scalia. Kevin McMahon, a political scientist, takes this approach in his book on Nixon’s appointments: Warren Burger, William Rehnquist, Harry Blackmun, and Lewis Powell.
McMahon’s starting point is a puzzle. When Nixon ran for president, he attacked the Supreme Court for its liberal excesses. Under the leadership of Chief Justice Earl Warren, the Court had expanded the rights of criminal defendants, and had launched a revolution in civil rights by desegregating schools and other institutions. Nixon blamed the first set of opinions for the collapse of law and order in the 1960s, and argued that the second set of opinions took civil rights too far. Yet although Nixon appointed four justices, including the new chief justice, his appointments did not mount a serious challenge to the Warren Court. Why not?
Nixon is vilified by the left for Watergate and Vietnam, and he talked tough on domestic issues, but he was a moderate president, at least by current standards. In foreign policy, he opened up relations with China and sought détente with the Soviet Union at a time when the right wing in the United States took an uncompromisingly hostile stance against communism wherever it appeared. In domestic policy, he created the EPA, implemented affirmative action, supported the Equal Rights Amendment, and tinkered with the economy in a way that was anathema to conservatives. Nixon did not try to turn back the New Deal, which remained popular. In all these ways, Nixon positioned himself to the left of George Wallace and Ronald Reagan, as everyone understood at the time.
To distinguish himself from the Democrats, Nixon advanced two signature conservative issues: law-and-order and opposition to forced busing of schoolchildren to integrate schools. Nixon chose these positions because they were popular, owing to urban riots and the rapid increase in crime, and people’s understandable desire for their children to attend neighborhood schools. Even on these two issues, Nixon took moderate positions compared to those of various racists and southern firebrands who repudiated the civil rights movement. Nixon approved of forced busing to counter deliberate segregation and limited his opposition to busing plans designed to create racial balance where segregation had not been the policy of the school district; and he was not particularly enthusiastic about, say, capital punishment.
Nixon was not a closet liberal. He pursued moderate policies because he wanted to win elections, and in the late 1960s and early ’70s liberalism flourished among the public and Democrats controlled both houses. The now extinct species, the “liberal Republican,” thrived, and Nixon accommodated its interests in order to keep his party together. Nixon notoriously pursued the “southern strategy” of strengthening the Republican Party by appealing to southern conservatives. But as McMahon shows, Nixon could not go too far without losing northern liberals. Thus, to appease southerners, Nixon expressed hostility to busing and a commitment to law and order, but he did so pretty tepidly. His Justice Department continued to sue school districts to compel them to desegregate, and his solicitors general (unlike Reagan’s) did not ask the Supreme Court to overturn Warren Court-era precedents that protected the rights of criminal defendants.
McMahon argues that Nixon’s appointments of moderate Supreme Court justices fit this strategy. In looking for justices, Nixon focused on how their appointment and performance would help his own electoral prospects. Thus, he cared about appointing a conservative white southerner, so as to appease the south; a Catholic, so as to make inroads among socially conservative working-class Americans of Italian, Irish, and Polish descent who would later become Reagan Democrats; and a woman. And after a few misfires, Nixon realized that he could not appoint a complete idiot. Nixon also sought a justice who would support his anti-busing and pro-law-and-order positions—and yet the overall picture, in McMahon’s telling, is one in which Nixon cared about ideological conformity but only with respect to these two issues (as opposed to other hot-button issues like pornography, speech, and religion) and not very strongly.
Nixon did not want a hardliner, as he realized that a hardliner would not survive a confirmation battle waged by Senate liberals of both parties, and he did not believe that the public wanted to roll back civil rights. Another criterion for selection, which McMahon does not sufficiently emphasize, was political connectedness. The only possible explanation for many of the proposed nominees who emerged from Attorney General John Mitchell’s Justice Department was that they were known quantities—bozos, but our bozos.
These considerations played out as follows. In 1968 and ’69, two slots opened up, and Nixon nominated two white southern conservatives who were voted down in the Senate because of their questionable ethics, undistinguished intellects, and reactionary politics. So Nixon chose Warren Burger, who had delivered speeches taking Nixon’s line on law-and-order. Then Nixon chose Harry Blackmun, who was reported to be at least moderately conservative. Both were regarded as respectable lawyers. In 1971, two more slots opened up. Initially, the Justice Department suggested a number of clowns, including a possible female candidate, all of whom were widely derided when the list was leaked to the press. So Nixon chose Lewis Powell, a southern white (moderate) conservative, and William Rehnquist, a Justice Department official who was regarded as intelligent and sufficiently right-wing.
McMahon argues that Nixon’s choices were a success given Nixon’s agenda. True, the Burger court delivered a range of liberal opinions on issues like abortion and affirmative action, but those were not issues that Nixon cared about. He wanted a court that would moderate the Warren Court’s opinions on busing and the rights of criminal defendants, and that is what he got. One suspects—and McMahon hints at this—that Nixon, who did not care about domestic policy, chose law-and-order and busing as his major domestic issues precisely because he could not do anything about them other than nominating justices with the right ideological positions, as these issues were controlled by the Supreme Court or were otherwise local matters. Thus, Nixon could make political hay by blaming the Supreme Court for preventing him from tackling extremely difficult social problems that he could not possibly have solved. No wonder he so frequently declared to the public that he respected the rule of law and would never disobey the Court, come what may. He must have enjoyed a good laugh over that.
Still, the murky evidence can also support a different hypothesis. Nixon harbored conflicting impulses, and was constantly revising his judgments. In some moods, he would have liked to appoint Supreme Court justices conservative enough to overturn Warren Court precedents. Burger (whom McMahon calls a “moderate”) and Rehnquist would compile the fourth and second most conservative voting records among justices appointed after 1953, according to the careful statistical research of political scientists Andrew Martin and Kevin Quinn. And Nixon tried to appoint other conservative justices but the Senate thwarted him. Nixon faced political constraints, as he appreciated, and so he did not accomplish what he might have.
Reagan, too, would appoint the more moderate Anthony Kennedy after the Senate voted down Robert Bork; and he would appoint the moderate Sandra Day O’Connor, rather than a reliable conservative, for the political dividends from being the first president to appoint a woman. Thus, McMahon’s effort to distinguish Nixon, the pragmatist, and Reagan, the ideologue, is overdrawn. The two presidents ended up making similar appointments to the Supreme Court, and although Reagan’s moderates would turn out to be more conservative than Nixon’s moderates, Reagan made his appointments in a more conservative ideological climate. So although Reagan was a more ideologically committed conservative than Nixon was, political constraints caused their behavior to converge.
McMahon says that Nixon would have been “proud” of his contribution to the ideologically conservative Court that resulted from additional right-wing appointments by George H.W. Bush and George W. Bush, but he does not explain this curious judgment. More likely, Nixon would not have given a damn. From a political perspective, all the Court does these days is mobilize the left. No one seems inclined to vote for Republicans because the Court gave us gun rights. From an ideological perspective, Nixon might have approved some of its right-leaning rulings, but he probably would not have cared.
From an institutional perspective, the story is even bleaker. Nixon’s justices, with the possible exception of Rehnquist, brought little distinction to the Court. Burger was an ineffectual chief justice who alienated all of the other justices. Blackmun would acquire celebrity status among liberals for Roe v. Wade but most scholars regard his judicial output as undistinguished, whatever one might think of Roe. Powell also did not enjoy a reputation for legal acumen. Though people praised him for his courtly manners, no one could think of anything good to say about his opinions. (This is a common pattern for second-rate justices: Justice Souter would similarly be praised upon his retirement for his personal frugality rather than his judicial ability.) Rehnquist was an effective chief justice after he was elevated by President Reagan, and he kept the conservative flame alive during the 1970s, but he did not possess a distinguished legal mind.
So what can one say about Nixon and the Court? That he mainly appointed mediocrities who served his limited, short-term political purposes. Or, if you admire the modern right-leaning Court that came into existence starting in the Reagan administration, you could credit Nixon for appointing Rehnquist, one of its key members (the others being Scalia, Thomas, and probably Roberts and Alito).
What strikes the reader hardest is how casually Nixon made his choices. Many of them were not seriously vetted before they were nominated, or their names were disclosed publicly and they were shot down. With perhaps the exception of Burger, Nixon knew little about the ideological positions of his nominees and did not seem to care as long as they came across as conservative to the public. As Nixon said to Mitchell, “Be sure to emphasize to all the southerners that Rehnquist is a reactionary bastard, which I hope to Christ he is.” But Nixon concluded that the only political benefit from appointing Rehnquist was the impression that he was appointing a qualified person, and he did not think that this amounted to much. McMahon spends only a handful of pages on the four candidates whom the Senate confirmed, and, since he seems to have scoured the archives, one can only conclude that appointing a Supreme Court justice was of little interest to Nixon—seen only as an opportunity to make a modest political gain, akin to a small-town mayor’s appointment of the local water board.
Nixon was hardly alone. Virtually all presidents have treated Supreme Court nominations with a casualness that appalls the legions of Court-revering lawyers and makes a mockery of the worshipful attitude of the press. Americans know little about the Supreme Court, and generally respect its decisions, regardless of their political valence. So a president gains no credit for appointing a justice who advances the public interest and receives no blame for appointing a justice who subverts it. Presidents care about whether the Court will interfere with the president’s agenda in the short term (say, health care for Obama, the New Deal for Roosevelt), and most presidents can minimize this risk by appointing someone who has demonstrated loyalty to the party. But one cannot predict issues and votes more than a few years out. Thus, the president’s main concern will be the short-term reaction of the Senate and the public to the choice—a confirmation fight could interfere with the president’s agenda or cause embarrassment—and the reaction of relevant interest groups which do take the long view but care about justices’ stances on particular issues, not their overall quality. Presidents gain nothing from staffing the Court with philosopher kings.
McMahon lays out his argument carefully. His starting point—that the Supreme Court largely reflects the agenda of the president and the Senate, the relevant political coalition in power at the time of the justices’ appointment—provides a reasonable theoretical orientation for the book. But if, as the case of Nixon shows, the president does not care very much how justices end up deciding cases, in part because he cannot forecast how they will decide cases more than a few years out, then this theory has limited predictive power. If Nixon’s electoral calculations (and the preferences of the Senate) explain why the Burger court was moderate, they do not explain why the court’s moderation took the form that it did—for example, protecting abortion rights while opposing gay rights rather than the other way around.
The real payoff comes from the rich description of the politics of judicial appointment. McMahon quotes heavily from Nixon and his henchmen, and their distinctive voices—sometimes shrewd, sometimes buffoonish, always cynical—enrich the narrative. Unfortunately, McMahon does not write gracefully. Only Supreme Court and Nixon junkies will find the strength to slog through the ponderous academic prose, but they will unearth many rewards in this book.
Eric A. Posner is a professor at the University of Chicago Law School.