The Wars of Watergate (27 page)

The other major feature of the 1970 plan involved the creation of the Domestic Council, a proposal that inevitably aroused greater congressional concern than OMB had, for it threatened operations of executive agencies that had close ties with congressional committees and staff. The Administration regarded the Domestic Council as a twin to the National Security Council. Its task was to coordinate and integrate both complementary and contradictory policies emanating from the departments of Treasury; Interior; Agriculture; Commerce; Labor; Health, Education and Welfare; Transportation; and Housing and Urban Development. The council was intended to focus on broad policy formulation in order that the President and his White House staff could have immediate influence on the various departments.

Chet Holifield (D–CA), Chairman of the House Committee on Government Operations, was skeptical of the plan, fearful that Congress could not scrutinize the functions of the Domestic Council; in addition, he noted that its head would be a “political appointee,” not confirmed by the Senate—that is, with no ties to the Congress. The President subsequently named John Ehrlichman to head the Domestic Council, and the aide soon confirmed the fears of both Cabinet and congressional critics. Ehrlichman seemed less interested in broad policy formulation than in making the council into an operational agency. By all accounts (except Ehrlichman’s, of course), the Cabinet became increasingly isolated, even irrelevant, as contacts increased between the White House and middle-level bureaucrats.
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The 1970 reorganization plan made its way through Congress during the uproar over the President’s actions in Cambodia, thus heightening suspicions of presidential aggrandizement of power. But at the time Nixon still had sufficient respect to overcome congressional opposition. His lobbyists deflected criticism as they emphasized the President’s right to manage his “organizational household,” and the plan went into effect.
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What a difference a year made. By 1971, the sharpening clashes over Vietnam policy and domestic issues, particularly spending, and the President’s assault on Congress in the 1970 elections, had heightened the nascent antagonism between the two branches. Early in the year, Nixon’s reservoir of good will had largely evaporated. In March, the President submitted a series of new reorganization bills. The centerpiece was a reorganization of the executive departments that focused on domestic affairs. The measure proposed reducing to four the sprawling Cabinet offices charged with domestic affairs, and developing them along functional lines: departments of National Resources, Community Development, Human Resources, and Economic Affairs. Whatever the merits, the plan died aborning.

Nixon’s public declaration, both in his January 1971 State of the Union speech and in his message accompanying the submission of the reorganization plans, stressed the need to change the framework of government to make it more responsive. In January, he predictably attacked “bureaucratic elites in Washington” who acted as if they always knew what was best. Two months later, he complained that governmental power was “exceedingly fragmented” and so diffuse as to create countervailing policies. These “fragmented fiefdoms,” he bluntly stated, had a “hobbling effect … on elected leadership and, therefore, on the basic principles of democratic government.”

The “fragmented fiefdoms,” however, had powerful allies in the subcommittee structure of Congress. There, individual congressmen, and their personal and committee staffs, had a substantial stake in the
status quo
that they would not lightly surrender. Bureaucratic self-defense coupled with congressional self-interest, amid heightening suspicions of presidential intentions,
combined to defeat Nixon’s 1971 reorganization plan.
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The system that so frustrated the President remained largely intact.

Studies of presidential administration and executive organization typically stress that Nixon’s reorganization schemes were common to modern presidents. Nixon may well have been more determined than his predecessors to offer new, definitive answers to the problems of governance in the twentieth century. Still, his failure to give effect to reform had much in common with the failures of other presidents, for they too directly confronted the entrenched, fragmented forces in the government. Such an interpretation stresses the failures of reorganization itself, not this President’s character flaws. Nixon’s abortive reorganization schemes, the argument continues, prevented him from gaining his desirable managerial goal of control. From this same analysis, however, flowed an easy rationalization for the Plumbers, the attempts to politicize upper civil service positions, and the misuse of the Internal Revenue Service.

Those abuses of power certainly represented rationalizations for control and effective management, but they had less to do with governmental efficiency than with advancing the personal interests and political stature of the President. The grandiose charts and plans for streamlining government are difficult to separate from the Administration’s internal perceptions of “enemies,” including a bureaucracy that in the President’s mind frustrated his programmatic goals because of its ideological hostility—thus justifying a purge that often took on “the air of a vengeance crusade.” While nominal Democrats may have dominated the career bureaucracy, no inexorable logic dictated the conclusion that they deliberately sabotaged Nixon’s policies for ideological reasons.
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In the final analysis, it appears, reorganization aroused suspicions that each plan was another Nixon Administration design for confrontation and presidential aggrandizement—and at the expense of Congress.

President Nixon’s battles with the Senate over Supreme Court nominees offered the most vivid constitutional, partisan, and institutional confrontations of his first term. The confirmation struggles exposed a mutual contempt between the President and Congress, and the results kindled new bitterness on the part of the President, a bitterness that flowed over into other areas and colored his relationship with Congress for the remainder of his presidency.

In the Dred Scott decision in 1857, the Supreme Court of the United States defended the right of slaveholders to take their chattels to the territories. The ruling provoked bitter division in the nation, and political aspirants assailed the Court, promising a reversal of the controversial decision. Abraham Lincoln, in his famous 1858 senatorial campaign against Stephen A. Douglas, said that the decision had wrongly interpreted the Constitution,
and he forthrightly opposed it. “Somebody has to reverse that decision, since it is made, and we mean to reverse it, and we mean to do it peaceably.”
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Lincoln’s meaning was clear: “We”—the Republicans—would win at the polls, appoint Supreme Court Justices who thought differently from those who handed down the Dred Scott decision, and reverse the decision “peaceably.” In fact, Congress ignored the decision once the South seceded, Lincoln’s Supreme Court appointees never applied it, and Union armies effectively reversed it. History has been kind to Abraham Lincoln.

Richard Nixon attacked the Supreme Court in his 1968 campaign for its alleged coddling of criminal forces, and he promised to appoint Justices who would favor “law and order.” Nixon’s opponents were appalled by his assault on the Court, which they perceived as a nonpolitical institution. They criticized him for his demagoguery and for his attacks on a largely defenseless institution and charged that he ignored the true, underlying causes of crime and violence in the nation. To some degree, however, a significant part of the electorate believed that the Court’s decisions had undermined police authority and had fostered contempt for the law. In any event, Nixon’s promise to appoint Supreme Court Justices who reflected his own philosophical beliefs was hardly new in history.

When Chief Justice Earl Warren notified President Johnson in June 1968 of his intention to retire “solely because of age,” many greeted the news with some skepticism. Warren’s announcement seemed like a cynical ploy. Well known was Warren’s longtime animosity toward Richard Nixon, dating back to California days and particularly to Nixon’s role in abandoning Warren’s favorite-son candidacy for the presidency in 1952. When Johnson announced his nomination of Associate Justice Abe Fortas as Warren’s successor, skepticism multiplied, as suspicions spread that both Johnson and Warren had somehow connived to prevent the possibility that Richard Nixon might name the fifteenth Chief Justice of the United States.

Fortas carried enormous handicaps. Nominated for Chief Justice by a retiring, unpopular president, he symbolized the most advanced liberal views of the Warren Court, positions that only enhanced his vulnerability, for they were the focus of the political assault on the Court in that time of unrest. Fortas’s activities also gave rise to serious doubts about his ethical behavior and standards. The Justice’s role as an untitled presidential adviser was well known; perhaps that, coupled with the possible realization that his personal activities might be subjected to unwanted scrutiny, contributed to Fortas’s initial reluctance to accept Johnson’s nomination to the Court in 1965. Reports of his continued White House involvement regularly circulated in Washington. For his part, Fortas refused to fully acknowledge the extensive work he did for Johnson, a role that overshadowed and potentially conflicted with his judicial position.
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Whatever Warren’s purposes or Johnson’s motives, the President again
could not shake his well-known image as a wheeler-dealer. As he submitted Fortas’s name to the Senate, Johnson also nominated fellow Texan Homer Thornberry to Fortas’s place on the Supreme Court. Thornberry, then a federal judge, had been a popular member of the House of Representatives, with close ties to the dominant Southern leadership but with a voting record that gave him solid links to other Democrats. Clearly, the President hoped to gain support from Southern Democrats and conservative Republicans for a package deal. He persuaded Republican Senate Leader Dirksen to support Fortas in exchange for some political favors. Senator Richard Russell (D-GA), leader of the southerners and a great power in the Senate, reportedly told the President: “I will support the nomination of Mr. Fortas for Chief Justice, but I will enthusiastically support Homer Thornberry.” But the ploy did not work.

Michigan Republican Robert Griffin led the opposition and focused on Fortas’s fee of $15,000 for a series of university lectures and some other instances of alleged greed and shadowy dealings. A former Fortas law partner had raised the cash for the lecture fee from persons who might have future dealings with the Court. The opposition also made much of Fortas’s role as a presidential adviser, claiming that the Justice and the President had violated the sanctity of separation of powers. A Republican filibuster succeeded: on October 1, the Senate voted 45–43 on a motion to close debate, fourteen votes short of the two-thirds necessary to proceed to the nomination.
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It was a staggering, embarrassing result for both Fortas and his patron.

Earl Warren’s status now was in limbo. As it became clear that Fortas could not be confirmed, Warren gave a rare interview, emphasizing that he had told President Johnson that he would retire “at your pleasure.” Asked whether this meant Johnson’s pleasure or that of the “office of the presidency,” Warren grinned and cryptically urged his interviewer “to read the letter.” Whatever he meant, the public perception was that the Chief Justice intended to retire. Nixon, however, took no chances. After taking office, he sent William Rogers to visit the Chief Justice to work out the precise timing of his departure, and they agreed that Warren would step down in June. With that, Nixon instructed Attorney General John Mitchell to begin the search for a successor.
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Apparently Nixon gave some consideration to promoting Associate Justice Potter Stewart, a moderate Republican. But, given the President’s campaign talk about changing the Supreme Court, Stewart’s promotion was unlikely despite his fair degree of opposition to some of the same Warren Court rulings that rankled conservatives. Stewart later claimed that he did not want the Chief Justice’s job, calling it a “lousy” one, fine for “someone who wants the highest title he can get, but it adds nothing to the best job in the world, that is, being a justice.”
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The “highest title” was not altogether unappealing, however, for Warren Earl Burger, judge of the federal Circuit Court of Appeals for the District of Columbia. The D.C. Circuit was generally then regarded as the bastion of judicial liberalism and activism. In scholarly and Washington legal circles, its members were often as well known, and sometimes more highly regarded, than the Justices of the Supreme Court. Headed by the controversial David Bazelon, the D.C. Circuit Court helped shape many of the provocative doctrines more familiarly known as products of the Warren Court. The Circuit Court judges were like-minded and rendered decisions marked with a high rate of agreement. Court-watchers knew, however, that Warren Burger stood out as the exception who proved the rule. Burger, a former Assistant Attorney General, had been appointed to the Circuit Court by Eisenhower in the late 1950s. He consistently took issue with his liberal colleagues, often sarcastically berating what he considered their activism, elitism, and excessive concern with the rights of defendants at the expense of social order. In 1967,
U.S. News & World Report
published excerpts from some of Burger’s dissents and speeches, emphasizing his law-and-order themes. The article caught the attention of then-candidate Richard Nixon, and he used some of the ideas in his presidential campaign. Impressed with Burger’s “moderate conservatism,” Nixon nominated Burger as Chief Justice on May 21, 1969.
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It was an adroit move. The President avoided any charge of cronyism or political payoff. Instead, Nixon selected a man with judicial experience and one who fulfilled his campaign pledge to appoint judges mindful of the “peace forces.” Typically, the President could not resist a jab at the ideological opposition. Introducing Burger to a national television audience, the President emphasized his nominee’s “unquestioned integrity throughout his public and private life”—an obvious reference to Fortas’s problems, which had received even more publicity since his failed nomination the previous year. Despite doubts on the part of those who had closely studied Burger’s opinions—doubts that were both ideological and intellectual—the nomination had little difficulty in the Democratic-dominated Senate, and Burger was confirmed a month later.