The Nixon Effect. Douglas E. Schoen

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СКАЧАТЬ as these nominations were, Nixon did not look at the court in the hardened ideological terms his public pronouncements sometimes suggested. As with so many other domestic issues, he showed considerable flexibility when dealing with the court—and thus, on the negative side, his flexibility could lead him to subordinate his choices to political considerations, as many assumed he did with these early nominations, as he sought further to strengthen his Southern appeal.

      However, Nixon did believe in “strict construction”—a phrase and concept that he made familiar to millions of Americans. “It is my belief that it is the duty of a judge to interpret the Constitution and not to place himself above the Constitution,” he said. “He should not twist or bend the Constitution in order to perpetuate his personal, political and social views.”³⁹ He meant it, but for Nixon, “strict construction” was not about ideological purity so much as addressing specific issues. In his first term, the two issues that meant the most to him were law and order and antibusing. More broadly, he wanted justices who rejected judicial liberalism in its many manifestations. But he recognized that the most hardline judicial candidates, especially on civil rights issues, would not enjoy the support of the American people.

      Eventually, Nixon nominated Harry Blackmun from Minnesota as a justice for the Supreme Court, and he was confirmed unanimously. Blackmun was seen as a law-and-order man, and in the early years of his tenure, he cast mostly conservative votes. But in time, he became a key cog of the court’s liberal wing, famously writing the Roe opinion legalizing abortion and, two decades later, coming out against the death penalty. The judge would come to exemplify a truism about Supreme Court nominations: no president, no matter how careful his selection, can depend on a justice being “reliable” throughout his tenure.

      Perhaps the judicial pick who best exemplified Nixon’s own predilections was Lewis Powell, whom the president appointed in 1971. Powell was a centrist, with views often reflective of Nixon’s own—he was generally proprosecution in criminal cases and a limited advocate of affirmative action and prochoice, but not at public expense. Warren Burger, whom Nixon appointed in 1969 to replace Chief Justice Earl Warren, also had views that were reflective of Nixon in some ways. He was a dyed-in-the-wool Republican but not an ideological conservative. The justice often frustrated committed conservatives, but he also represented an entirely different sensibility than the departed Warren, who had led a judicial revolution. Burger’s chief justiceship, which ran until 1986, brought an end to that era.

      But it was William Rehnquist, a committed conservative, who represented Nixon’s most vital impact on the court. Rehnquist’s nomination ran into serious opposition. He had written a 1952 memorandum supporting the premise of Plessy v. Ferguson, the infamous 1896 decision that enshrined “separate but equal” public facilities for whites and blacks. He tended to vote “with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases, and with the government in speech cases.”⁴⁰ As John Ehrlichman told Nixon: “If you want to salt away a guy that would be on the Court for 30 years [and] is a rock-solid conservative, he’s it.”⁴¹

      Once he was joined by more conservative colleagues in the 1980s—when Ronald Reagan appointed Sandra Day O’Connor, Anthony Kennedy, and especially Antonin Scalia—Rehnquist, who became chief justice in 1986, led a more conservative court. Sparked by the “strict constructionist” ideal, which became more commonly described as “originalism,” conservatives formed organizations like the Federalist Society to train legal scholars and jurists. But things didn’t go entirely as conservatives hoped at the court—they never do. Whether under Chief Justice Burger, Justice Rehnquist, or Justice John Roberts, the court has tended to side with liberals on social issues—abortion, affirmative action, school prayer, and, in 2012, on President Obama’s Affordable Care Act. At the end of the 2014–2015 court term, the justices handed down two landmark rulings celebrated by liberals: one effectively upholding a main component of Obamacare (for a second time) and the other declaring a constitutional right to same-sex marriage.

      While conservatives currently rue many of these decisions, it is not clear that Nixon himself would have: he had a more traditionally Republican (that is, not ideologically conservative) outlook on most social issues. Yet, while his record of appointments to the court proved uneven, he unquestionably began the push against the Warren-era court’s social activism—especially in the area of expanded criminal-defendant rights—and engendered what would become a prevailing critique among conservatives against “activist judges” who interpreted the Constitution and statutory law according to their own predilections. The critiques Republican candidates make in campaign after campaign—against judges who “legislate from the bench,” for instance—have become deeply familiar to millions of Americans, and not in a positive sense. Nixon, then, was the president who put the brakes on the court’s liberal momentum; made the court a political field of battle in which certain issues strongly favored conservatives; and discredited the concept of judicial activism in the public mind.

      Social Welfare

      In 1996, Bill Clinton signed the historic Personal Responsibility and Work Opportunity Act, legislation that reformed the nation’s welfare system to encourage work among the poor. The law included a work requirement and a five-year cutoff period for welfare benefits. It was the most sweeping change in the nation’s welfare policies since the 1960s. Today, welfare reform is counted among President Clinton’s most significant achievements in office. Yet the law had many liberal critics who felt that it stigmatized poor mothers and did not provide adequate job training. And its cutoff period—after receiving two years of consecutive benefits or five years of cumulative benefits—was decried by liberal advocates as too harsh. They saw the Clinton bill as a betrayal of the Democrats’ historic commitment to the poor.

      What some older Democrats might have recalled was that, a quarter-century earlier, they had had a chance to pass a much more comprehensive, and more generous, welfare plan. But this plan was offered by a Republican president, Richard Nixon, with whom they were often engaged in political war. For various political reasons that I will describe in detail in chapter 4, liberals, who should have been the most reliable supporters of Nixon’s welfare reform effort, largely blocked it. Nixon’s pioneering effort to transform the nation’s welfare system didn’t come to fruition, but the effort to do so is an important and fascinating part of his domestic record.

      Nixon was not expected to be a voice for the poor, but he began proposing initiatives to assist them when his administration was in its early days. In May 1969, in his “Special Message to the Congress Recommending a Program to End Hunger in America,” Nixon called on Americans to support a range of legislation and executive action that would alleviate poverty and especially hunger. “That hunger and malnutrition should persist in a land such as ours is embarrassing and intolerable,” Nixon said. “More is at stake here than the health and well-being of 16 million American citizens. . . . Something very like the honor of American democracy is at issue.”⁴² On the issue of hunger, Nixon’s actions matched his words: he quadrupled spending on food stamps from $610 million in 1970 to $2.5 billion in 1973.

      Thus Nixon’s most remarkable initiative in social welfare policy came in an area in which, in the end, he failed to win legislative approval: welfare reform. When thinking of Nixon today, few would note that he was a welfare reformer, much less that he was one even before there were welfare reformers. In the late 1960s and early 1970s, welfare was a system largely accepted by liberals; though conservatives detested the welfare system, most didn’t envision realistic prospects of changing it. Yet Nixon did. In an August 1969 speech, given over the opposition of his most conservative advisors, he unveiled the Family Assistance Plan (FAP), his attempt to address poverty in America, especially among children. Under Nixon’s plan, which would replace Aid to Families with Dependent Children (AFDC), the existing welfare program, all families with children would be eligible for a minimum stipend—$1,600 for a family of four, amended to $2,500 in 1971.

      “What I am proposing,” Nixon continued in his 1969 congressional message СКАЧАТЬ