This week Nixonfoundation.org spoke about the history of the Supreme Court in the Nixon era with Wallace H. Johnson, the man tapped by the 37th President to manage the confirmations of William Rehnquist and Lewis Powell for two Associate Justice seats.
After working as an organized crime prosecutor and as a staff member on the Senate Judiciary committee, Mr. Johnson held a variety of roles in the Nixon administration, including Associate Deputy Attorney General in charge of legislation, Special Assistant to the President for Legislative Affairs, and Assistant Attorney General for Land and Natural Resources.
Recently, he participated in three Nixon Legacy forums about the administration of justice under President Nixon. Last Sunday, he wrote a letter to the editor on the subject which appeared in The New York Times book review.
What was the mission of the Warren Court, and what was its effect on American society?
It’s hard to put this in perspective today, but in 1968 the Warren Court decisions compounded unrest in our country and created an election issue around law and order that helped elect Dick Nixon in 1968. Pat Buchanan explained this very, very well when he was part of one of our legacy panels on the evolution and creation of the Nixon Supreme Court.
The issues were that Warren was very permissive and the Court created an atmosphere in our country that did not make the electorate feel secure in their being. And it fit in very neatly with the permissive society of the 1960s.
How did President Nixon view the Court’s role in society?
I never talked with him personally about this, but I did discuss nomination strategy with him when Powell and Rehnquist were before the Senate Judiciary Committee. He was very hands on about this subject. But having read a fair amount about the era and having lived through it, I’m inclined to say that he would fall into the Scalia-Rehnquist school of Supreme Court decision making where there is a restricted role for the Court, and the restricted role would always tilt toward protecting the rights of the community on the edge of protecting the rights of the individual. That may very well have been necessary to restore order to the country then.
The Warren Court in the broadest sense was very attentive toward protecting the rights of the individual, and drawing that line is a very fine line because there’s no question that with the principles of the Constitution as they are with the Bill of Rights, the strength of our society is how we protect the rights of the minority. The decision that everyone will remember is Miranda v. Arizona (1966) where the Court imposed an obligation on the police to advise people of their rights before they questioned them.
I don’t suggest at all that President Nixon never intended to protect the rights of the minority, what I’m suggesting is that during that era there was the appearance that the rights of society were not being tended to.
If you think about it, people were insecure in their being – there were riots in the streets of the cities of the United States, there were many people concerned that their government was not protecting them. President Nixon was very much on top of this and tending to be a law and order President, and he had a law and order Attorney General and that was John Mitchell.
I’m a product of the Justice Department; I came up from the bottom and worked with and for Mitchell, and was an organized crime prosecutor at the beginning of my legal career. We were concerned about insuring that the Court appointments and the laws that the government enforced were supporting local law enforcement.
The states primarily have responsibility over traditional crimes and the Federal government – in the broadest sense the FBI – investigates Federal crimes. The fact is people out of concern for their property and their lives rely on protection from local government. Many people don’t realize that over ninety percent of criminal investigation and prosecution is at the local level and the Federal Government has limited ability to directly affect the investigation and prosecution of criminals.
So what could the Federal government do to strengthen local law enforcement? President Nixon had a test case in the District of Columbia where Federal jurisdiction was local, and he did lots of interesting things particularly in strengthening the police. But look how big the country is and how many cities we have, how could the President and the administration make a big impact there? One way was through the Law Enforcement Assistance Administration (LEAA) which provided very defined support for local law enforcement through a block grant program to the states and specific grants for test tube programs – test tubes in the sense that the experience could be translated from one city or state to another.
How did President Nixon’s first nominee come to be Warren Burger for Chief Justice?
That’s in the history books, but I wasn’t personally a part of the Burger process. Burger certainly looked and played the part though. He had been an appellate court judge. I do know that President Nixon in his memoirs suggested that his four Supreme Court nominees were one of the major achievements of his presidency. That would be the Minnesota Twins (Justices Burger and Blackmun), and Justices Powell and Rehnquist. All were apparently oriented toward the President’s judicial philosophy.
Now in retrospect, the dominant personality of that quartet was Justice Rehnquist who served from 1971 until 2005 and made a major impact on the court. But President Nixon’s six total nominations - plus the Abe Fortas controversy - also redefined the Article 2, Section 2, Clause 2 principle of advice and consent, and advice has a new meaning now in a constitutional sense. If you’re following the conversation on Capitol Hill about who will become Secretary of State, you will understand exactly what I’m saying.