The Nixon Effect. Douglas E. Schoen

of Minority Business Enterprise) . . . ;

       * raised the share of Southern schools that were desegregated from 10 percent to 70 percent.²⁹

      “The charge that we built our Republican coalition on race is a lie,” Buchanan wrote. “Nixon routed the Left because it had shown itself incompetent to win or end a war [Vietnam] into which it had plunged the United States and too befuddled or cowardly to denounce the rioters burning our cities or the brats rampaging on our campuses.”³⁰ Indeed, Nixon showed that civil rights could be advanced in a rational, reasonable way that emphasized cooperation while deemphasizing areas of conflict. His achievements in this area exemplify his nonideological political approach.

      Nixon’s social liberalism also extended to the other key group then making demands for inclusion, economic opportunity, and political influence—women. Moynihan played a role here, too, in urging Nixon to get out in front of the issue. “Male dominance is so deeply a part of American life that males don’t even notice it,” Moynihan wrote to the president. “I would suggest you could take advantage of this. In your appointments (as you have begun to do), but perhaps especially in your pronouncements. This is a subject ripe for creative political leadership and initiative.”³¹

      In today’s politics, women’s rights have often been seen as synonymous with abortion—an issue on which Nixon vacillated. He believed that the issue should be resolved by the states, though he called New York’s Cardinal Cooke in 1971 to express support for repealing the state’s liberal abortion law. After the Supreme Court ruled on Roe v. Wade, Nixon worried that the decision might encourage promiscuity. (Infamously, he was caught on tape saying that abortions were justified in cases of rape or “when you have a black and a white.”)³² Vocal feminists, like Betty Friedan, certainly did not see Nixon as an ally—yet they overlooked the rest of his record.

      Nixon also extended affirmative action to women at educational institutions. Perhaps his foundational achievement here was in signing Title IX, prohibiting sex discrimination in federally funded education programs, in 1972. “It’s hard to exaggerate the far-reaching effect of Title IX on American society,” wrote longtime sports columnist Allen Barra in 2012. “The number of female athletes at the high school level has increased more than tenfold and at the college level, more than twelvefold. . . . The year before Title IX was enacted, there were about 310,000 girls and women in America playing high school and college sports; today, there are more than 3,373,000.”³³

      Barra concedes that Title IX wasn’t Nixon’s brainchild; it was pushed primarily by Democratic representative Patsy Mink of Hawaii. “It’s almost certain that Nixon signed it into law without considering the potential impact on women’s athletics,”³⁴ Barra wrote, and that’s probably true. But it was part of Nixon’s broader civil rights efforts on behalf of women—including his support for the Equal Rights Amendment (though Nixon did not push seriously to get the ERA passed).³⁵

      From 1971 to 1973, Nixon’s administration tripled the number of women working in high-level positions.³⁶ “There is no denying,” wrote Joan Hoff, “as with desegregation of southern schools and public institutions, that Nixon’s advances in civil and political rights for women and minorities far outweighed those of his predecessors, belying the ‘divisive public rhetoric’ his administration employed in the process.”³⁷

      Pioneering “Strict Constructionism”

      Another reason that Nixon’s civil rights achievements aren’t better recognized is because, in his efforts to appoint “strict constructionist” Supreme Court justices—meaning that they would interpret the Constitution narrowly—civil rights issues were often the backdrop. That was certainly the case with his first two appointments, Clement Haynsworth and G. Harrold Carswell, neither of whom made it to the court. Both judges were Southerners, and their nominations have been widely seen as a perpetuation of Nixon’s Southern strategy. Haynsworth would have been the first Southerner named to the court since the civil rights movement, but civil rights and labor leaders helped sink his nomination. Carswell’s nomination imploded on questions of his competence, but also on civil rights grounds: he had given a prosegregation speech in 1948.

      The failed nominations were seen as politically damaging, but Nixon was able to rally political support with an angry denunciation of what he saw as bias against Southern judicial candidates. “I have reluctantly concluded,” Nixon told reporters, “that it is not possible to get confirmation for a judge on the Supreme Court of any man who believes in the strict construction of the Constitution, as I do, if he happens to come from the South.”³⁸ He said that the only choice left for him was to nominate judicial conservatives from outside the South, since his opponents were biased against that region of the country.

      As divisive 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