In his campaign for president, Richard Nixon promised to respond to the social upheaval of the 1960’s with a return to order, law enforcement and conservative rulings. This video presents Nixon’s strategy to reconfigure the Supreme Court by appointing “strict constructionists,” justices with conservative backgrounds who would render the most literal interpretation of the Constitution.
President Nixon had the chance to fill a significant number of federal judicial vacancies, and he attempted to fill them with judges who shared his vision for the country. By the end of his presidency, he had appointed 181 judges to the United States District Courts, 46 judges to the United States Court of Appeals, and four Supreme Court Justices.
Nixon was certainly not the only president who has wished to leave a lasting impact on the Court. The power to appoint judges is immense because, while presidents are limited to a maximum of eight years in office, they can use these lifetime appointments to create legacies that outlast their administrations by decades.
The presidential power to appoint judges is not total. Article II, Section 2 of the Constitution gives the Senate the power to consent --- or to withhold its consent for judicial nominations. In doing so, the framers of the Constitution built in a check on presidential power.
Historically, this check has not been exercised very often. The Senate has confirmed 123 of 159 Supreme Court nominees (77%). However, when presidential nominees are rejected, (and sometimes even when they are simply being scrutinized by the Senate) the process can become quite rancorous.
Before the Senate ever votes on judicial appointments, nominees must “survive” several steps in the vetting process. These steps are not required by the Constitution, but have become standard over time. Typically, the president selects potential candidates with advice from his staff, and submits the names to the Senate. At that point, the FBI and Senate Judiciary Committee staff conduct extensive background checks to ensure the nominees have paid taxes, have not been convicted of a serious crime, etc. In an effort to know the political and legal philosophies of nominees, senators and their staff will also pour through recorded speeches, legal opinions or statements made by the nominees.
Next, nominees face the Senate Judiciary Committee in televised confirmation hearings. At the conclusion of the hearings, the Judiciary Committee members vote on whether or not to recommend the nominees for confirmation. If the nominees pass through the committee, the full Senate debates and then votes on whether to confirm them. A simple majority (51 vote) is required for confirmation. Those nominations that engender the most partisan debate in the Senate may also have to “survive” a filibuster preventing the Senate vote.
Interestingly, the only Constitutional requirement a federal judge must meet is that he or she is nominated by the president and confirmed by the Senate. There are no constitutional requirements relating to age, citizenship, residency or even proven knowledge of the law. This makes the entire selection process more subjective. The experiences, temperament, and expertise that one president or senator thinks are merits may be viewed as problematic by others.
PROTESTORS (Singing): The revolution has come (off the pigs) Time to pick up the gun (off the pigs) The revolution has come (off the pigs) Time to pick up the gun (off the pigs) The revolution has come (off the pigs) Time to pick up the gun (off the pigs) The revolution has come.
RICHARD M. NIXON: Tonight it's time for some honest talk about the problem of order of the United States. I in a sense am in the ring tonight, and I think this is the time and this is the place to take off the gloves and sock it to them.
KOBYLKA: Richard Nixon rides into town and says, we will give you order. We will give you peace. We will give you what you want, which is security. And so Nixon's promise is to end the chaos, to end the disorder, and part of that was, from his perspective, a function of the Court.
KLARMAN: Nixon's committed to appointing justices who will repudiate much of what the Warren Court's done.
KOBYLKA: Nixon gets his chance, and it's an extraordinary chance. This is something that no president since Roosevelt had had. He has four appointments in less than two years. There are nine people on the Court. That's almost half the Court. You wipe out almost half of the Warren Court in one fell swoop. So the stage is set for the "Nixon Revolution."
NARRATOR: Nixon knew what sort of man he wanted: strong conservatives who believed in law and order, nominees from the South and with judicial experience -- and young enough to serve some decades on the Court. He wanted judges who would stick to the letter of the Constitution, and where it was fuzzy, let the government do what it liked. He called them strict constructionists. And to find them, a bright young man searched the rosters, the assistant attorney general, William H. Rehnquist.
POWE: "Strict constructionists" became the code word for "not people like those on the Court."
SIMON: "Strict constructionists" was gonna favor government and law enforcement against individual liberties and certainly those of criminal suspects.
RICHARD M. NIXON: Ladies and gentlemen, I am very proud tonight to nominate as the 15th Chief Justice of the Unites States, Judge Warren Burger.
NARRATOR: It wasn't all easy. Two Southern nominees -- Clement Haynesworth and G. Harold Carswell -- were rejected by the Senate.
Nixon settled for Burger's childhood friend from Minnesota, the little-known federal appeals court judge Harry Blackmun.
And finally, he got one man from the South: Lewis Powell, a Virginian. But by then he'd burned through every name the justice department had collected.
What about that Rehnquist fellow? Only 47 -- perfect! Strong on law and order, critic of the Warren Court since the early '50s, a former clerk for Justice Robert Jackson. Not that Nixon knew all that. "Renchburg?" Nixon asked. "Is he Jewish?"
KOBYLKA: Nixon doesn't know him other than visually, and Rehnquist is something of a flamboyant dresser. He favored pink shirts. Richard Nixon was not a pink shirt kind of guy. Rehnquist had long hair. He wore it over his ears, and he had long mutton chop sideburns.
DELLINGER: He had been number one in his class at Stanford Law School. He had clerked for Justice Robert Jackson. He had written an article decrying the influence of liberal law clerks, making the Court too liberal.
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