Transcripts For CSPAN3 Erwin Griswold Book Prize Lecture On

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. F