In July, we’ll reach the 45th anniversary of a historic Supreme Court ruling that serves as a reminder of a sadly bygone era when Americans could believe in things like the constitutional balance of powers and judicial independence. Eventually, this post will lead to a poignant reminder of a time when our system was less corrupt, even under a corrupt president.
1973-74 were the Watergate years. President Richard Nixon’s 1972 re-election campaign had engaged in a criminal conspiracy to spy on the hopeless Democratic ticket. It was totally unnecessary. Nixon ended up winning 49 states. But his paranoid team decided to tap the Democrats’ phones, and then some hapless crooks got caught, and Nixon ended up destroying his presidency by participating in the cover-up.
(I know, you’ve heard about this. The point is not to rehash Watergate. So I’ll go fast, just two quick paragraphs for the youngsters, before I get to my point, which is about some differences between then and now.)
The Watergate investigation led to the discovery that Nixon was secretly taping conversations in his own Oval Office, which meant there were tapes of him discussing his criminal acts of cover-up. Nixon’s Justice Department had appointed an absolutely straight-arrow legal eagle (Archibald Cox) to investigate and prosecute the crimes. He was the Robert Mueller figure of this story. The personification of non-partisan integrity.
Cox wanted the tapes. Nixon refused. Cox sued. Nixon wanted to fire Cox. But (moreso than today) the president was surrounded by officials with integrity who resigned or were fired for refusing to fire Cox. (This was the famed “Saturday Night Massacre.”) Nixon finally found someone who would fire Cox. But the lawsuit proceeded all the way to the Supreme Court, which ordered Nixon to turn over the tapes.
Now the point: There were six justices at the time who were appointed by Republican presidents, four of them by Nixon. But the Supreme Court voted to order Nixon to hand over the tapes by 8-0.
Justice William Rehnquist, who had just been appointed to the court by Nixon and had previously served in the Nixon Justice Department, recused himself, which was a classy enough move. So he didn’t vote or otherwise participate in the case.
Two others (both Minnesotans), who had also been appointed by Nixon, Chief Justice Warren Burger and Associate Justice Harry Blackmun, voted against Nixon’s position and in favor of ordering him to hand over the tapes. Nixon appointee Lewis F. Powell also voted against Nixon’s position.
Two other justices, Potter Stewart and William Brennan, who had been appointed by previous Republican president Dwight Eisenhower (and, of course, Nixon was Ike’s running-mate) also voted to order the Republican incumbent Nixon to hand over the tapes.
The three justices appointed by Democratic presidents (FDR appointee William O. Douglas, JFK appointee Byron (Whizzer) White and LBJ appointee Thurgood Marshall) also voted to order Nixon to turn over the tapes.
The point in fewer words: A court with six Republican appointees and only three Democrats voted 8-0, with one abstention, that Nixon’s claim of executive privilege did not entitle him to withhold evidence of his crime.
As you know, the evidence on the tapes was so damning they led to impeachment proceedings in the House Judiciary Committee, which voted to impeach Nixon. And, by the way, on the committee votes, seven of the 17 Republican Committee members voted to impeach Nixon on one count and six of them did the same on another count.
Fast forward to today. How have the efforts to investigate Donald Trump for possibly impeachable offenses broken down along party lines? Almost completely perfectly in both houses of Congress. Democrats believe the evidence is serious. Republicans excuse the conduct or whistle in the wind.
And when we look at the current Supreme Court, which consists of five Republican appointees and four Democratic appointees, on many of the most controversial and ideologically or politically charged cases, we see a lot of 5-4 rulings with all the Republicans on one side and all the Democrats on the other. Chief Justice John Roberts has occasionally broken party ranks, which has caused great consternation among many Republicans and conservatives. (One such Roberts vote saved the Affordable Care Act from being struck down on a straight party-line vote.)
But, other than that, we have come to expect that too many Supreme Court cases will be decided on a party-line vote. Likewise, votes to confirm or reject Supreme Court nominees are basically party-line votes. When there is an opening on the Supreme Court, we have a fairly open discussion of how the likely nominees will vote on the hot-button cases that are likely to arise in the foreseeable future. We have unprecedented partisan tactics used to block confirmation of appointees by a president of the “wrong” party from filling a vacancy on the Supreme Court.
What set me off on this rant, by the way, was this recent Washington Post piece about a new memoir from retired Supreme Court Justice John Paul Stevens. Stevens, a moderate Republican, appointed by Republican President Gerald Ford, was confirmed by a 98-0 vote. (Those days are gone.) In his latest book, Stevens calls the 8-0 ruling in the Nixon tapes case “the high point for judicial independence.”
Stevens wasn’t on the tapes case. But he was the lead author of the court’s decision in (Bill) Clinton v. (Paula) Jones, which ruled that a sitting president does not have immunity from all civil lawsuits for actions taken when he was not in office, like Bill Clinton’s sexual harassment of Paula Jones. The court at that time consisted of six justices appointed by Republican presidents and three by Democrats. The ruling was unanimous. 9-0.
The Post asked Stevens (who is 99 and retired from the court shortly after his 90th birthday) if he had anything he wanted to say about the current White House incumbent. He replied: “Nothing that you don’t know already.”