Sunday, December 6, 2015

Ricci Reviews McMahon's "Nixon's Court"

[In lieu of a Sunday Book Roundup, we have a book review.   Emil A. Ricci, Department of History, Villanova University, has sent us his review of Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences (University of Chicago Press, 2011) , by Kevin J. McMahon. Here is Professor Ricci’s review.]

During the 1968 presidential campaign, Richard Nixon pledged that if elected president, he would appoint “law and order” justices to the Supreme Court of the United States. Nixon was reacting to the social unrest which plagued American society during the 1960s. He and many conservatives attributed the pervasive riots and violence, especially in the cities, to the liberal constitutional decisions of the Warren Court on criminal law and procedure. Thus, after he was elected, Nixon fulfilled his campaign promise by appointing conservative justices whom he believed would halt judicial liberalism and restore social order. But as Kevin J. McMahon argues in this informative study, Nixon’s nominees did not carry out a “counterrevolution” in constitutional law radically changing Warren Court doctrine. Instead, Nixon devised a judicial policy aimed at creating a new Republican majority in American politics, a policy designed to bring together white southern conservatives and working-class whites in the urban north.

In this thoroughly researched and well-documented book, Professor McMahon shows how President Nixon used the Supreme Court to build an electoral coalition of southern whites and urban white ethnic voters in the north. Nixon wanted strict constructionists, preferably southern judges on the Supreme Court, who would check the expansion of constitutional protections for criminal suspects, while taking a moderate course on school desegregation. For the President, these two social issues, crime and school desegregation, were vital to creating a new Republican majority. But crafting a judicial policy designed to appeal to southern and white ethnic voters in northern cities, was not easy.

To achieve this coalition, Nixon nominated Warren Burger to replace Earl Warren as Chief Justice, and Harry Blackmun, another conservative judge from Minnesota. The senate confirmed both men rather easily. But the nominations of Clement Haynsworth of South Carolina and G. Harrold Carswell of Florida produced tremendous opposition. Both men were rejected by the Senate, leaving Nixon frustrated, even angry, that he could not appoint justices whom he believed were qualified for the high court. Eventually, Lewis Powell from Virginia and William Rehnquist, a lawyer in the Justice Department, were nominated and confirmed, creating a Court destined to battle judicial liberalism and appeal to southern and northern social conservatives alike.

McMahon’s study is especially good in showing how Nixon and his advisors considered potential Supreme Court nominees. Drawing upon a wealth of primary sources including the Nixon tapes, McMahon discusses the process by which Warren Burger was selected to replace Earl Warren as Chief Justice, as well as the choice of Harry Blackmun and other conservative jurists. Given the importance of Supreme Court appointments in American law and politics, McMahon’s analysis of this procedure reveals Nixon’s thinking about the composition of the Court and how the justices would decide key issues such as busing to achieve school integration.

While Nixon was not opposed to school desegregation, he believed busing was not the best means to accomplish racial balance in public schools. But as McMahon observes, if the high court ruled to enforce Brown v. Board of Education and its progeny through busing, it was the Court that would endure criticism and social backlash, not the President. Nixon, as such, would be insulated from political attacks, while able to preserve his electoral coalition of southerners and northern white ethnic voters.

The latter part of McMahon’s book details the Nixon Court’s decisions in the areas of free speech, obscenity, pornography, and social disorder. The president was indeed interested in these issues, but crime and school desegregation held primacy among the Court’s major cases. Nixon surely opposed “smut” pervading American society, but for his political purposes obscenity and pornography simply did not rise to the forefront of issues essential to maintaining a Republican electoral coalition, especially at the presidential level.

In his final chapters, McMahon analyzes the political impact of Nixon’s judicial strategy in the presidential elections of 1972, 1976 and 1980, suggesting that Reagan’s presidency was perhaps more successful in creating a southern, northern white ethnic voting bloc in which ethnic Catholics and social conservatives came together to solidify Republican control of the White House. But even using an empirical-behaviorist analysis of voter attitudes and election results, McMahon concedes that his conclusions in this study, including the electoral implications of Nixon’s judicial policy, are more suggestive than definitive. Nonetheless, his analysis of quantitative data relating to voter attitudes on busing, crime, and urban unrest for the 1972, 1976, and 1980 presidential races is impressive.

Overall, Professor McMahon’s book is a significant contribution to American legal and judicial history. Perhaps its greatest value lies in enhancing our understanding of how the judicial appointment process can influence electoral politics. While McMahon claims that his evidence of political outcomes is more suggestive than conclusive, he does present a cogent argument for Nixon creating a generation of social conservative voters at the presidential level that lasted well into the 1980s. One minor critique is that the University of Chicago Press could have been more meticulous in editing this book. Many sentences contain missing words and some misspellings appear. In addition, the names of prominent politicians such as Edmund Muskie are erroneously given as “Edwin” Muskie. These deficiencies aside, anyone seeking to better understand the intersection of law, politics, and judicial policy should certainly read this book.