Article by:
Joshua E. Kastenburg*

40 Campbell L. Rev. 113 (2018)

INTRODUCTION

On April 15, 1970, Congressman Gerald Ford, the House of Representatives’ minority leader, delivered a floor speech to his colleagues in the House of Representatives and demanded the body begin impeachment proceedings against Justice William O. Douglas.1  Less than two weeks later, President Richard Milhous Nixon ordered a ground invasion of Cambodia.2 Nixon had planned for a joint United States and South Vietnamese assault into Cambodia prior to Ford’s speech, and, six months before this invasion, Nixon had initiated “Operation Menu,” a secretive aerial campaign against North Vietnamese military targets in Cambodia.3  The invasion into Cambodia was at odds with Nixon’s earlier promise not to expand or enlarge the United States’ role in the Vietnam Conflict; it led to nationwide unrest.4  Oddly, for reasons of secrecy that became emblematic of Nixon’s administration, the President had not conferred with Secretary of Defense Melvin Laird or Secretary of State William Rogers about his final invasion decision, but he consulted with Henry Kissinger, his national security advisor, as well as Ford and a small number of other congressmen.6  Laird and Rogers earlier had presciently warned Nixon that widening the war into Cambodia would lead to domestic upheaval, and news leaks over “Operation Menu” caused Nixon to distrust Laird.6

In the speech preceding the invasion, Ford, a Republican and one of Nixon’s closest congressional allies, alleged that Justice Douglas had engaged in unethical conduct, such as departing from the duty of impartiality, accepting unlawful payments, and undermining what today would be termed as “family values.”7  Ford also claimed that the Justice had encouraged domestic unrest and was involved in various political activities to the detriment of national security.8  While it may not be possible to determine definitively whether Ford’s speech was timed to provide political cover for the Cambodian invasion or occurred as a matter of coincidence, there is interlinking indicia that the two events were connected as part of an ideological strategy.9  This strategy, whether intended or not, politicized the federal judiciary, threatening judicial independence and encouraging deference to asserted national security needs over individual rights.

While? ?there? ?is? ?uncertainty? ?why? ?Ford? ?moved? ?to? ?have? ?Justice? ?Douglas? ?impeached, there is a historic consensus that Ford acted at Nixon’s behest.  Most popular theories center on Nixon’s desire to reshape the Supreme Court, a legacy every president would like to leave.  Nixon took office in the wake of President Lyndon Johnson’s failed attempt to nominate Justice Abe Fortas to replace the retiring Chief Justice Earl Warren, and that failed attempt led to Justice Fortas’s resignation from the Court, leaving Nixon with the immediate opportunity to appoint two Supreme Court justices.  When the Senate failed to confirm his first two nominations, Nixon and his allies sought to use the impeachment of Douglas as payback.

Although Southern Democrats in Congress had previously called for Justice Douglas’s impeachment, the roots of Ford’s attempt to remove Justice Douglas date to 1968.  That year, Chief Justice Warren informed President Johnson that he intended to retire, but not until Johnson had successfully appointed a new chief justice.10  Chief Justice Warren wanted to make sure that Nixon, Johnson’s likely successor, would be deprived of the opportunity to appoint a chief justice.11  This was an unusual mode of retirement, and it angered Senate conservatives like Samuel Ervin, a North Carolina Democrat who rhetorically asked whether “the refusal of Chief Justice Warren to resign until an agreeable successor [was] appointed dilute[d] the constitutional ‘advice and consent’ function of the Senate . . . .”12  Southern segregationists, “states-rights” politicians, and national conservatives had taken issue with many of the Warren Court’s decisions, and Warren’s method of conditionally retiring fueled the anger against the Court.

Still, Johnson had assurances from Republican Senate Minority Leader Everett Dirksen, his deputy, Hugh Scott, and Democrat “powerhouse” Senator Richard Russell that Justice Fortas could be confirmed if Nixon appointed him for the position of chief justice.13  Johnson had successfully nominated Justice Fortas to the Court in 1965 with little Senate opposition and had scant reason to believe that Justice Fortas would not be confirmed as chief justice.14  But, Justice Fortas had continually provided Johnson advice on national security and foreign policy matters, such as the conflict in Vietnam and the United States’s invasion of the Dominican Republic, and then denied these activities under oath.15  This led to extended opposition to Justice Fortas from the chairman of the Senate Judiciary Committee, James O. Eastland, as well as several Southern Democrats and conservative Republicans.  Ultimately, there were not enough legislators to override a filibuster, and Justice Fortas, unable to secure a majority of the Senate, resigned from the Court rather than face an impeachment.16

Nixon saw the opportunity to potentially appoint two Supreme Court justices and appoint the new Chief Justice, essentially reshaping the Court as he saw fit.  He thought to accomplish this by taking advantage of divisions within the democratic majority.  Without a Senate confirmation of Johnson’s choice for the position, Chief Justice Warren’s conditional retirement couldn’t keep the nomination out of the hands of Johnson’s successor, Richard Nixon.  Nixon was sworn in as President on January 20, 1969, and while that put control of the White House in the hands of the Republican Party, for the first time in modern history both houses of Congress were solidly under the control of the Democrats.17  It would be reasonable to assume Democratic opposition and Republican support for Nixon’s nominees, but this would overly simplify the analysis.  The Democratic Party was hardly unified, as southern conservatives and party liberals clashed over civil rights and Vietnam.18  While the Senate easily confirmed Chief Justice Warren Burger, Nixon’s choice to replace Chief Justice, it denied confirmation to his first two nominations to replace Justice Fortas: Clement Haynsworth and G. Harrold Carswell.19  A coalition of liberal Democrats and Northern Republicans in the Senate aligned to defeat both nominations to the anger of not only Nixon, but also Southern Democrats.20  The timing of Haynsworth’s and Carswell’s confirmation failures has since led politicians and historians to conclude that Ford, at Nixon’s behest, sought Douglas’s impeachment as political revenge.21  Ford called for Douglas’s impeachment contemporaneously with Carswell’s defeat, garnering support from an alliance of 104 Southern Democrats and Republicans in the House of Representatives.22  Ford admitted that he was irate with the Senate over Haynsworth and Carswell but denied this was a reason for his call to investigate Douglas.23  And, while this political animosity may well have been enough to motivate Nixon to push Ford to move forward with impeachment allegations, Nixon’s personal animosity toward Douglas stoked the fire.  According to John Ehrlichman, Nixon despised Douglas more than any other federal jurist.  The desire to have Douglas humiliated through the impeachment process could also be translated into a revenge motive.24

While this existing political tension between the branches and accompanying personal animosities might have been one justification for Nixon seeking the impeachment of Justice Douglas through his allies in the House of Representatives, it is certainly not the only one.  There has been little study as to the role of “national security” in the impeachment attempt, and this Article will seek to fill that gap.

This Article argues that the impeachment process was used as political cover to distract the public from the controversial Cambodian invasion.  Ford did this by making an array of accusations against Justice Douglas, charging that Justice Douglas had worked to restore the deposed leftist leader of the Dominican Republic, Juan Bosch, to power and had consorted with organized crime leaders in the process.25 Ford also claimed that Justice Douglas had empowered communists and encouraged dissent against the government.26  The most damning claim was that Justice Douglas sought an end to the conflict in Vietnam by permitting the Communists to attain a total victory.27

This Article is not premised on the argument that Justice Douglas was a threat to national security; rather, it examines Ford’s use of “national security” in his efforts to have Justice Douglas removed.  National security, to be sure, was not the only basis Ford articulated, but it was the first time that a justice was publicly accused of undermining it.28  Ford ultimately failed to have Justice Douglas impeached, and, in the words of former White House counsel John Dean, the failed impeachment attempt created “an intractable resolve” in Douglas not to resign as long as Nixon remained president.29

Understanding the mechanics of the impeachment investigation and the motivations of Nixon, Ford, and Ford’s congressional allies is relevant to contemporary discussions of the judiciary for two reasons.  First, their actions contributed to the politicization of the judiciary, setting an expectation that the Court must give deference to the national security needs of the country, particularly when those national security needs are in conflict with the individual rights of its citizens.  This remains true, even if no directly analogous event has occurred since.30  And, second, the episode evidences how easily members of the two elected branches of the federal government can attack the judiciary, often with little lasting accountability.  It is true that this episode, which once gained headlines both nationally and internationally, has now faded into historical obscurity.  But, the episode remains a quietly influential artifact, in part because none of the individuals leading the charge suffered as a result of it.31  Ford became vice president with little congressional opposition.  Although Nixon resigned under threat of impeachment, the impeachment effort against Justice Douglas was never brought forward as evidence against Nixon.  And Justice Douglas, who had engaged in an unprecedented degree of political activity, remained obstinately on the Court.  The lack of accountability for those involved leaves open the possibility for today’s elected officials, if they so choose, to politicize the judiciary without the constraints of historic accountability.

Constructed as a legal history, this Article examines the use of “national security” in the impeachment process.  At no point in this Article is there a defense of Justice Douglas’s extrajudicial actions, notwithstanding the fact that, throughout history, several justices, including some of Justice Douglas’s contemporaries, also engaged in non-judicial activities of a political nature.32  Rather, it is intended to show how those extrajudicial activities, whether innocuous or not, allowed the Nixon Administration and its congressional allies to pursue impeachment of a sitting Supreme Court justice by appealing to the nationalist security fears of congressional “defense hawks.”  Had the effort been successful, it would have allowed Nixon to dramatically shape the future of the Court by appointing a third justice to the bench; it also would have served as a public distraction that enabled his administration to move forward with the controversial invasion of Cambodia with far less public outcry.  This Article is divided into four parts.

Part I provides a contextual overview of the political climate of the late 1960s, particularly the tension between the branches of government.  It also provides a brief background on Justice Douglas’s approach to national security, including the political reaction against his judicial decisions.  Part I also highlights Justice Douglas’s stridency against the use of United States military forces in the Vietnam conflict.  Finally, it includes a brief analysis on the “state” of federal judicial ethics in the period leading up to the impeachment investigation.

Part II presents Ford’s claims against Justice Douglas and the creation of the House Judiciary Committee’s investigation into him.  This Part also analyzes the timing of Ford’s actions in light of the United States’ military invasion into Cambodia.  Further, it examines Ford’s claims that Justice Douglas had tried to undermine the stability of pro-American governments in Latin America, particularly the Dominican Republic.

Part III of this article analyzes the investigation into Douglas and the public reaction to the investigation.  Part IV examines congressional and news media reactions to Ford’s claims as a means for assessing why he failed in his efforts to dislodge Justice Douglas from the Court.

Finally, this Article concludes by discussing not only why this episode should be better understood, but also how it should be used as a barrier to protect the judiciary against claims that judges have undermined the nation’s security.

 

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