The Wars of Watergate (30 page)

Powell’s nomination won widespread acclaim, giving the lie to Nixon’s earlier charge that the Senate would not confirm a southerner. Powell had a reputation as a conservative, an able lawyer, and a strict constructionist, but he also had gained praise for his role, as school-board chairman, in peacefully desegregating the Richmond public schools. He impressed the Senate Judiciary Committee with his balanced views. The government, he said, had a right to protect itself against potential insurrectionaries, but it must avoid injuring or arresting innocent people. He conceded that wiretapping could be justified at times, but he assured the committee that he would oppose “indiscriminate” use of it.

Nixon’s problem this time was with a displaced Wisconsinite who had moved to Arizona. Enough was known about William Rehnquist to tab him as a conservative ideologue. His views on desegregation became suspect following the revelation of a memorandum he had written while clerking for the late Justice Robert Jackson in the early 1950s. Rehnquist claimed that the memo merely summarized different “legal” views of segregation, not his own. There were also questions about his advice to the Administration on the civil rights status of antiwar demonstrators. Rehnquist refused to
discuss these matters, claiming attorney-client privilege. Senator Birch Bayh urged Nixon to waive the privilege. Inasmuch as Rehnquist supposedly shared the President’s judicial philosophy, the Senator insisted it was important that Rehnquist enlighten the Senate on those views. Bayh’s position cannot have been new to Rehnquist. Writing in 1959, largely in protest against the civil rights views of the Warren Court, Rehnquist himself had called on the Senate to do a better job of determining the judicial philosophy of Supreme Court nominees. “The only way for the Senate to learn of these sympathies,” he said, was to make proper inquiries during the confirmation process.

The President refused to waive attorney-client privilege, and Rehnquist did not discuss with the Senate committee his judicial philosophy. Nixon later happily recalled that he picked Rehnquist for his philosophy. He was particularly impressed with Rehnquist’s appearance before the Senate Judiciary Committee. “Demolished them,” Ehrlichman noted, although Nixon also had earlier called Rehnquist “a clown.”
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Rehnquist was confirmed on a 68–26 vote.

The Powell and Rehnquist appointments to the Supreme Court were Nixon’s last. Yet he had hopes of more. In late 1972 he instructed Ehrlichman to tell Burger to “nudge” Justices Douglas and Thurgood Marshall, both reportedly in ill health. A few months later, the President thought he should replace Burger, given that the Chief Justice was getting on in years. If Burger wanted more government service, Ehrlichman was instructed to tell him that “we’ll find something worthy of you.”
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Nothing came of either idea.

Nixon’s battles with the Senate over Supreme Court nominations offered a vivid example of his determination to change national priorities without interference or challenge by Congress. Despite the Democratic majority in the Senate—perhaps even a liberal ideological majority—Nixon boldly confronted that power. He would have had no difficulty had he initially nominated Justices with the qualities of Powell or Blackmun. These men were hardly liberals, yet their personal characters were unimpeachable and their legal records worthy of broad support. Rehnquist’s well-known rightist views proved no handicap when weighed against his intellectual and legal capabilities. Nixon’s early nomination of lesser candidates showed his contempt for both the Senate’s political sensibilities and its constitutional role, as well as his contempt for the Court as an institution. How else to explain the nominations, even the serious consideration, of a Carswell, a Lillie, a Poff, or a Friday? Those names might have provided some short-range political mileage for Nixon, but their obscurity belittled the Court’s significance as an institution, and their mediocrity only signaled the President’s willingness to devalue the Court’s role in the governmental apparatus.

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The struggles with Congress over the Supreme Court, over executive-branch reorganization, and over impoundment of allocated funds contributed to the ever-growing tension between the President and Congress. These battles were important, yet they were sometime things, occasioned by momentary considerations or needs. By contrast, the persistence of the Vietnam conflict, and the widened battles at home over that war, colored both the day-to-day and long-term relations between the two branches. Johnson’s tarbaby became Nixon’s, and as with his predecessor, President Nixon’s perception of American interests abroad poisoned his own fortunes at home. In his 1968 campaign, Nixon had recognized that the United States must extricate itself from the war. Yet questions of how and when proved as explosive and intractable as the war itself.

Public protests against the Vietnam war mounted at the outset of the Nixon Administration, but after the fatal shootings of student demonstrators at Kent State and Jackson State Universities in May 1970, and the bombing at the University of Wisconsin in August 1970, some of that pressure abated. Not so in Congress, however.

Thanks largely to the growing realization that President Johnson had interpreted the Gulf of Tonkin Resolution as a blank check for conducting the war on his own terms, Congress had grown increasingly suspicious of executive policy. Nixon’s lament about Congress’s denial of the “free hand” in Supreme Court appointments that had been given to his predecessors might have rung truer regarding Vietnam and foreign policy. The traditional liberal faith in a strong presidency had particularly underlined the need for broad presidential powers in foreign policy; Americans looked to their presidents to play the leading role for the United States in world affairs.

Now, for a variety of reasons—a realization of its rightful role, a response to public pressures, a distrust of Richard Nixon—Congress began to assert itself in foreign-policy concerns after a long period of quiescence. The ingredients were all in place for fateful clashes.

Congress’s customary behavior had permitted an extravagant growth of executive war powers. Perhaps Congress had been overwhelmed by a “cult of executive expertise”; perhaps there was a residue of guilt left over from the Senate’s 1919 rejection of the League of Nations and American international responsibilities; or perhaps, as a Senate committee suggested in 1969, Congress found itself “unprepared” to assert its constitutional role as the United States suddenly found itself in a new and dangerous world after 1945.
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In any event, for better than a generation, presidents generally dealt with tame, pliant congresses in foreign-policy matters. The frustrating obstacles Congress regularly had imposed on presidential domestic policies simply were absent in foreign affairs. With cause, Richard Nixon thought he had a “free hand” in the international arena.

Henry Kissinger’s interest in defending his actions and those of the President inevitably conflicted with his scholarly, historical detachment. In a rare moment, however, detachment prevailed as Kissinger clearly stated the ironic, tragic nature of the conflict between the President and Congress over foreign policy. The Vietnam debate, Kissinger later wrote, “represented a flight into nostalgia,” a notion that America had somehow lost its way and desperately needed to recover its moral purity. Kissinger dismissed the confusion and debate over the war as an expression of self-indulgence that “opened the floodgates of chaos and exacerbated … internal divisions.” Kissinger admitted that Nixon compounded the bitterness with an ample dose of his own. Convinced that he confronted a hostile conspiracy, Nixon responded with anger toward critics of his withdrawal plans, and toward what he saw as a lack of concern with the fate of innocent populations of Indochina. He also deplored the radical opposition to his foreign policy, marked by firebombings, thefts of classified information, incitements to draft resistance, and leaks of sensitive documents. Typically, the President charged that “intellectuals” and opponents of the war such as the
New York Times
thought they were “doing God’s work.” Nixon criticized in general terms the media, the “eastern establishment,” and “Congress v. us,” particularly singling out Senators Fulbright and Mansfield, respectively the Chairman of the Senate Foreign Relations Committee and the Senate’s Majority Leader.
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Congress signalled its shifting mood toward control of foreign policy only months after Nixon assumed power. The Senate overwhelmingly approved the “National Commitments Resolution” on June 25, 1969, a statement designed to reassert Congress’s role in committing American armed forces to the defense of other nations. Such action, the Senate said, “results only from affirmative action taken by the legislative and executive branches.” Nixon criticized the proposal as unduly tying the President’s hands. That was precisely the intent of the Senate: 45 senators who had voted for the Gulf of Tonkin Resolution in 1964 supported the 1969 action.

Nixon sensed the new mood. Just a few weeks earlier, he attacked critics of American foreign policy as “neo-isolationists.” Yet several months later he effectively neutralized his critics with his response to the massive protests in October 1969. In a national television address, he appealed to the “Silent Majority,” confidently asserting that they outnumbered the protesters and supported his goal of “peace with honor.” North Vietnam, he insisted, could not defeat or humiliate the United States; “only Americans can do that.” Three hundred representatives and fifty-eight senators signed a resolution supporting the President’s Vietnam policies. The favorable response to the speech—his public-approval rating jumped to 68 percent—convinced Nixon that he now would have two years to complete a plan for a phased withdrawal of American troops, with the resulting “Vietnamization” of the war.
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The President had hoped to stave off public and congressional critics as the nation realized the wisdom of his plan. But six months later, his action ordering American forces into Cambodia to attack North Vietnamese and Viet Cong sanctuaries rekindled the opposition. Public protests cascaded throughout campuses and cities. Nixon responded on May 1, 1970, with a Pentagon speech attacking campus demonstrators as “bums” living a protected, sheltered life while “the kids” in Vietnam “stand tall.” The remarks prefaced more violence, including the fatal shooting of students at Kent State University in Ohio. A week later, the President visited protesters at the Lincoln Memorial in the middle of the night, hoping to explain his policies in a direct, unprovocative manner. Public protests thereafter subsided somewhat, but more in fear of further violence than because of agreement with the President.
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The real change in attitude toward Vietnam was in Congress. On June 24, 1970, the Senate repealed the Gulf of Tonkin Resolution, 81–10. Nixon had not relied on that measure as overtly as Johnson; nevertheless, the vote was powerfully symbolic and a portent of congressional resistance. Nixon understood this. He wanted “our friends” to “fight [the repeal] vigorously,” although he thought it “completely irrelevant as far as this Administration is concerned.” Still, he was concerned that repeal of the historic resolution “might be detrimental to American foreign policy abroad since it could well be misunderstood.” Republican Senator Jacob Javits of New York said that Congress must find the means to establish its authority at the outset of military hostilities—a cue for what was to become the War Powers Act of 1973. Representative John B. Anderson (R-IL), one of the Republican leaders, complained that the President had too much “initiative and responsibility” for deployment of American troops abroad; this was not, he said, the intent of the Constitution.
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The President counterattacked, instructing Cabinet members to defend the Cambodian action with direct attacks on Congress. Presidential surrogates emphasized the President’s need to protect American troops and called upon Congress not to “stab our men in the back.” Congressional resistance, it was suggested, gave the enemy “aid and comfort,” encouraging them “to kill more Americans.” If Congress voted against the war, the directive continued, then it “must assume responsibility” for the lives of American troops, “rather than leaving such responsibility, and the decisions connected with it,” to the President. Finally, Congress must be held accountable “for an ignominious American defeat if it succeeds in tying the President’s hands through a Congressional appropriation route.”
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By June 1971, with the war and diplomatic negotiations both dragging on wearily, congressional restlessness gave rise to a gesture of rebellion. As part of a defense-authorization bill, Congress called on the President to terminate military operations in Indochina and provide for withdrawal
within nine months, subject to the release of prisoners of war. In a bold fashion of his own, Nixon said he would ignore the proviso, since it did “not reflect my judgment about the way in which the war should be brought to a conclusion,” adding that he considered the statement “without binding force or effect.” The next year a federal court repudiated the President: “No executive statement denying efficacy to the legislation could have either validity or effect,” the court’s decision said, and the court characterized Nixon’s statement as “very unfortunate.”
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But the war continued, and the President planned to end American participation on his own terms. He also turned his attention to the war critics. Noting the correlation of their criticism and North Vietnamese resistance to his peace proposals, the President proposed an all-out attack on the critics, reminiscent in style and tone of his earlier political campaigns. He wanted his opponents accused of “playing politics with peace.” He claimed that he had “done everything but offer surrender to the enemy.” The critics, he charged, “want the United States to surrender to the Communists. They want to turn South Vietnam over to the Communists.… They want the enemy to win and the United States to lose.” In a more positive vein, Nixon emphasized the necessity for negotiation and, correspondingly, the need for closing ranks. But he preferred “the attack line” to the positive one. Attack, he said, was more effective because it tended “to keep the critics from getting out too far and also because it simply makes more news. We have often failed in the past in these PR efforts because we simply have not had colorful enough attack lines and have not followed up on them. I do not want us to make that mistake this time,” Nixon said. He told his aides to press leading Republicans to use these themes, and to find “a good, hardhitting newspaper editorial” for broad circulation to friendly editors. Finally, he directed the staff to emphasize that Senators Muskie, Humphrey, and Kennedy “got us into the war [and] are now trying to sabotage Nixon’s efforts to get us out.” The President also had difficulties on the Right and in his own house. Vice President Agnew urged that there be no deal with North Vietnam unless it cleared all of its troops out of the South. “Unreasonable,” the President told Ehrlichman.
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