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The Real Nixon Legacy:The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe V. Wade Was Actual

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The Real Nixon Legacy:The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe V. Wade Was Actual The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe v. Wade Was Actually Decided James D. Robenalt Thompson Hine LLP 3900 Key Center 127 Public Square Cleveland, OH 44114 (216) 566-5755 [email protected] James D. Robenalt is a partner and former chair of the Business Litigation group at Thompson Hine LLP’s Cleveland office. Since 2000, he has won major trials and arbitrations in complex litigation involving over $161 million. He has also defended major construction cases, tax cases and professional malpractice cases. Jim has partnered with John W. Dean, Nixon’s White House counsel, to create a national continuing education program entitled “The Watergate CLE.” Mr. Robenalt is a member of the Advisory Board for the U.S. District Court, Northern District of Ohio. He is also an instructor for National Institute of Trial Advocacy. The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe v. Wade Was Actually Decided Table of Contents I. Introduction ...................................................................................................................................................5 II. Manuscript .....................................................................................................................................................5 Exhibit A .......................................................................................................................................................................7 Exhibit B .....................................................................................................................................................................33 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 3 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection of Supreme Court, and a Case Study—How Roe v. Wade Was Actually Decided I. Introduction The Nixon tapes provide an insider’s view of the ethics in the Supreme Court nominee selection pro- cess. Nixon’s legacy was his appointments to the Court: Burger, Blackmun, Powell and Rehnquist. Two would become Chief Justice and would dominate the Court for 36 years. Two, Blackmun and Powell, would fashion arguably one of the most significant opinions in the history of the Supreme Court—Roe v. Wade. II. Manuscript Preamble to the Model Rules of Professional Responsibility: A Lawyer’s Responsibilities, Section 6 (“As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice sys- tem because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.”) Justice David Souter, “What’s At Stake: Why Civics Matter To Me And To You,” Harvard Law School, 2012 address. https://journals.iupui.edu/index.php/civiclit/article/view/16876/17198. This one-hour course is a condensed version of a CLE that has been approved in several states. The topic is Nixon’s Court and a behind-the-scenes look at the decision in Roe v. Wade, one of the Court’s most controversial opinions and of current interest given the likely change in the composition of the Court under a Trump presidency. The Preamble to the Rules of Professional Responsibility provides that lawyers have ethical duties as public citizens to understand and cultivate knowledge of the law beyond its use for clients. Further, the rules support the concept of lawyers furthering the public’s knowledge, understanding and confidence in the law. Former Justice David Souter has taken these concepts to ground with his campaign to encourage a better understanding of how our government works and the history of some of our nation’s most important institutions and Constitutional decisions. Not only should lawyers themselves be more familiar with these precedents, but they should take responsibility to teach civics and our Constitutional values to citizens in their community to “further the public’s understanding of and confidence in the rule of law and the justice system.” The Nixon Court CLE accomplishes these goals in several ways. First, through Nixon tapes, it provides an insider’s look at the vetting process and the selection of Supreme Court candidates by the Executive under Article II. Nixon appointed 4 justices to the Supreme Court during his first term alone. Two of those appointees would serve as Chief Justice of the United States: Warren Burger and William Rehnquist. Together, these two Nixon appointees would dominate the Court for 36 year, showing that presidential appointments to the Court often serve as a president’s most important and long-last- ing legacy. Select transcripts are attached as Ex. A to this manuscript. Secondly, the course provides an look at the Supreme Court’s decision of Roe v Wade through the eyes of one of the law clerks at the time: Larry Hammond. Hammond served as Justice Powell’s law clerk and The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 5 was single-handedly responsible for convincing Powell to suggest to the Court the “viability” standard that is the hallmark of Roe. His bench memo is attached as Ex. B to this manuscript. The purpose of this one-hour course is to deepen the lawyer’s understanding of the interaction between the Executive Branch and the Judicial Branch when it comes to Supreme Court selections. Further, it is to provide a better understanding and working knowledge of Roe v Wade, a decision that is likely to be challenged during a Trump presidency and subject to much public debate. Finally, the hope, as Justice Souter suggests, is that lawyers, as guardians of our Constitution, will make it their business to teach and instruct in their communities about our Constitutional values which define us as a nation. 6 ■ Toxic Torts and Environmental Law ■ March 2017 Exhibit A Exhibit A The autumn 1971 retirements, for health reasons, of Justices Hugo Black and John Harlan marked the third and fourth vacancies since Richard Nixon assumed the presidency in 1969, giving him an unprecedented opportunity to reshape the Supreme Court. 1. September 17, 1971 Time: 4:28-4:32 PM Telephone Richard Nixon and Chief Justice Warren Burger [WEB] [Tape No. 9-63] RN: Hello. WEB: Hello, Mr. President. RN: Hi Warren, how are you? WEB: How are you? RN: Fine. I, uh, (clears throat), I understand the letter is here and that therefore it will be out. Uh, let me ask you on personal basis, because I don’t know how to quite, how to handle this, as to whether you think that perhaps, uh, uh, that uh, we ought to consider uh, uh, getting a dinner for him or something like that. What’s your feeling? WEB: Well, it will be quite before he can… RN: Could do it. WEB: … be present, yes. He’s very sick man, Mr. President. RN: I didn’t know that. WEB: Yeah. RN: Where is he, in the hospital, or…? WEB: He’s in uh, he’s in... RN: I see. WEB: … the naval hospital. RN: Uh huh. 1 The Real Nixon Legacy: The Burger and Rehnquist Courts, Selection... ■ Robenalt ■ 7 WEB: I suggested to John yesterday, he probably hasn’t gotten the message to you… RN: Oh. I’ve been, uh, meeting with legislative leaders today. WEB: I have, uh, just a note in general. This was before this had crystallized… RN: Yeah. WEB: This letter was actually written about three weeks and it’s been in… RN: Ah yeah. WEB: … his drawer, waiting for a date. RN: Um humm. WEB: And, uh, I had… RN: Does he take visitors? WEB: No. RN: No visitors, huh. WEB: I haven’t been able to see him for ten days. RN: Well, then better, uh, my goodness and I. I’ll drop a little handwritten note to him. WEB: I think that’d be nice. Now you know John Harlan has been in now for five weeks. RN: I’ve heard that. But I, I just assumed that was the eye trouble again. WEB: Well, no, no. It’s something much more serious. RN: Oh, God. WEB: Much more serious… RN: That’s too bad. WEB: He has moved out of the naval hospital yesterday and moved to George Washington. RN: Umm. WEB: Uh, just in frustration, his own frustration, although he is the most uncomplaining man I hink I have ever known in my life. 2 8 ■ Toxic Torts and Environmental Law ■ March 2017 RN: Um humm. WEB: He’s had more grief and problems than one man should bear. RN: Um humm, um humm. WEB: I, I’ve, I’ve told John Mitchell, I, I have the, my own judgement is that John will not be back here. RN: Yeah. Uh, now he can, uh, I’ll write a note to him, I suppose. WEB: Yes, I think that’d be nice… RN: But as far as Black, a note is the thing to do. WEB: Yes, I think so. RN: But he can, he can get that okay. WEB: It would be the naval hospital and John Harlan is at George Washington. RN: Sure, sure. I’ll just have it personally delivered so they’ll find out. WEB: Yeah. RN: All right, fine, fine. fine. WEB: And I, I told John when I talked to him yesterday and again this morning, that my jugement on the announcement thing was the longer you could keep it, uh, right within your own bosom, the more you keep your options open. RN: Yeah. WEB: They’ll be rumors of course, you can’t avoid it. RN: Oh, you mean the announcement with regard to the retirement? WEB: Yeah. RN: I think it’s going to be, it’s almost inevitable as its already over the, its already uh, been asked in the press core today. You know, they apparently got, they, they’ve been, they, they, they must be something on to it.
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