Tuesday, November 13, 2018

Kastenberg on Nixon's Attempt to Impeach Douglas

Justice Douglas en famille, 1939 (LC)
Joshua Kastenberg, University of New Mexico School of Law, has posted Safeguarding Judicial Integrity During the Trump Presidency: Richard Nixon's Attempt to Impeach Justice William O. Douglas and the Use of National Security as a Case Study, Campbell Law Review 40 (2018): 113-71:
In April 1970, Congressman Gerald Ford called for the impeachment of Justice William O. Douglas. Although Douglas had been accused by anticivil rights Southern Democrats of unprofessional conduct in his association with a political foundation as well as his four marriages, Ford reasoned that, in addition to the past allegations, Justice Douglas had become a threat to national security. Within two weeks of Ford's allegations, United States military forces invaded Cambodia without the express consent of Congress. Nixon's involvement in Ford's attempts to have Justice Douglas impeached give rise to the possibility that, in addition to trying to reshape the judiciary and further architect the "Southern Strategy" by bringing conservative Southern Democrats into the Republican Party, the impeachment would serve as a means to divert attention away from the Cambodian invasion. Ford's irresponsible conduct in this matter (and Justice Douglas's overall conduct) have never been historically addressed and, as a result, did not leave to future political leaders and judges a means by which to gauge behavior that can undermine the independence of the judicial branch. This Article is intended to provide a historical model of accountability.

1 comment:

Anonymous said...

Interesting article. Douglas had become politically charged and his associations with a casino owner were questionable, but the theory here is that Ford (at Nixon's behest)used the impeachment effort as a means to distract from the Cambodian invasion, cement the southern strategy, as well as attack liberalism in general. But Ford was outmaneuvered by the experienced Democrats in Congress and Nixon didn't realize that public opposition to the Cambodian invasion would cause chaos to his administration. There is a good lesson here - impeachment of any officer (and particularly a justice) should only be for "high crimes or misdemeanors" and not the loose standard advocate by Ford. If there is a movement to impeach a recently confirmed justice, it must be conducted with the constitution's high bar in mind lest significant damage to the judiciary is done