tv The Presidency CSPAN December 6, 2014 4:50pm-6:01pm EST
to allow the colonists to build their own army and develop a strategy. as a result texas became its own independent nation. let's watch all of our events from waco throughout the day. >> next, a conversation about gerald ford's constitutional legacy. and michael gearhart discussed the 38th president's decision to pardon former president richard nixon and his relationship with attorney general edward leaving -- edward levy. you.ank good morning.
as hank myers said, i am privileged to be the president and ceo of the national constitution center in is the only which institution in america chartered by congress to disseminate information about the u.s. constitution on a nonpartisan basis. what an inspiring charter that is. i am thrilled to be here at the for our ford symposium symposium on gerald ford. this is what we hope will be a series of collaborations with libraries across the country where we will join in theirrship to explore constitutional legacy. in partisan politics every person who serves as president makes a significant contribution to our understanding of the constitution, and the limits in
places on governmental powers. i could not imagine a better than the one that we are going to talk about today. this panel is devoted to president ford domestic posit -- policy. theael gearhart is distinguished professor of law of northiversity carolina chapel hill. he is author of a new book, the forgotten president. one of the 10 best books of the year. my came to the national constitution center last week. riveting discussion on how these presidents often forgotten made a significant contribution to our constitutional understanding. and martin wolf.
i am glad he is here to take the time to join us. he was appointed to the district court of massachusetts in 1985 to service chief judge from -- 2006-2012. he served in the for just -- ford justice department. he received a certificate of appreciation from the president from his work in the resettlement of indochinese recognition. you have written this great book about the forgotten presidents. one thing that emerges is that you can be forgotten and still make a significant contribution --consultation constitutional understanding. you believe that president ford is neither a forgotten president nor a bad one. you think you made a significant
contribution to our understanding of executive power. >> that is correct. i am honored to be here. i appreciate the chance to be a part of this program and to talk iout the president's legacy know a great deal of. i think president ford had a tremendous constitutional legacy and is particularly striking when you consider he was president for 900 days. ,ver those 900 days what he did it did have an impact. i will mention the ways in which it did. we have people here today. the fact you have this library, this museum, those help keep his memory alive. we keep talking about the things he did read first is the fact
that he became president, he is the first and only president who has come by way of the office for the 25th amendment. he was not elected. that in itself is remarkable. even without that electoral mandate he was able to do a lot of things, many of which we will talk about today. they include the following. he took over at a time when the justice department will reeling from charges of corruption. he restored integrity to the department of justice. one of the most important was leavy.ieve the -- edward i think there is a symmetry ford and coolidge. another president not long remembered. coolidge took over the white house when there was a deal of corruption. he removed the attorney general,
and they each tried to accomplish restoring integrity. also treating the department of justice as an arms length from the white house was unusual and distinc distinctive. we will talk about the pardon later. famousrobably the most pardon in history. you all know when he made it, his popularity dropped dramatically. we talk about it as if it were really important step towards healing the country. that in itself is an indication of how memorable it was. >> thank you for that framing of our topic. you were an assistant to attorney general edward leavy. leavy's as about
ford's crowning achievement. talk about his contribution. i would like to say how gratifying it is to be invited in be able to come. i am a united states district judge in my 30th year. workingust come from with journalists and lawyers in russia. i was talking to them about the roles of lawyers in the media play in the united states. the meaningful part of my remarks focus on watergate, my experience working with president ford's administration. this is inspiring example of our country at its best to embattled people throughout the world. had whentunity that i i was 30 years old had a
transforming effect on my interests, aspirations, standards. it is very gratifying to be able to express my gratitude to president ford and attorney general leavy for that. each of them i think has a vibrant living legacy. when attorney general leavy passed away in 2000, president ford came to the university of chicago and spoke at the memorial service. hesaid in part that when recruited edward leavy from the president of the university of chicago, because he wanted someone with impeccable integrity and intellect at a time of corrosive cynicism throughout the country. cover-up, the
severely damaged confidence in the justice department, as well as a presidency, all kinds of abuses by the fbi and cia, and the vietnam war has caused considerable controversy. the department of justice had been used for partisan purposes. , president nixon's campaign manager in 1972 went to prison for abusing his office as attorney general. said to therd gathering at the university of chicago when he recruited edward told him i want you to protect the rights of american citizens and not the president who appointed you. all i knew is that he shared my reference to the constitution. we were talking last night, wouldn't any president say that?
it shows the remarkable success of president ford and edward leavy. that certainly in that. not typical of the attorney general. they view the department of justice to protect his brothers personal reputation and partisan interest. that's what john mitchell had done as well. edward leavy was quite the opposite. president -- president ford delegated him substantial autonomy, but not complete independence, nor did the attorney general want independence. at that time, there were many toposed bills in washington make the attorney general independent of the president. for example, the way the dei director is now.
they have a 10-year term that would survive the president who , to take away from the justice department the authority to investigate high-level officials, special prosecutors. was theeavy's view attorney general is accountable to the president for policies, whether the priorities of the department of justice -- what are the priorities of the department of justice going to be, for example. example, where the law was uncertain, guidance from the president that was appropriate. interestingly, edward leavy and president ford had been graduate students at yale law school at the same time. the president, in a self-deprecating way, explained he spent most of his time coaching the yale football team, and the attorney general and his reputation for tremendous intellect. didrney general leavy strongly believe that the
department of justice should never be an instrument for policies -- for partisan purposes. the law had to be administered impartially, and president ford wanted him to do that. two short years, the cynicism about the department of justice and the executive branch generally was essentially eliminated through the honest, impartial administration of ,ustice, led by edward leavy but in very close collaboration with president ford. >> great. describe this incredible achievement -- two years, the most polarized time in history. president ford comes in. there's concern about executive power and nixon's abuses of wiretapping and also its of instruments of presidential power, and president ford transforms that -- all sorts of instruments of presidential power.
tell us what the result was of this transformation of executive how are. >> sure. as judge wolf well knows, because he worked with most of these folks in the department adjust us, he pulled together a remarkable team of people, each of whom was exemplary and took that charge from the president quite seriously, which was to and not belaw partisan. that was particularly difficult at the time because you need to remember, there is tremendous spotlight placed on the department of justice at that time because up until then, there had not been a spotlight placed on the department of justice. everything that was happening was happening under a microscope. among the people were carly hill, richard thornburgh, rex verysomeone i got to know well -- fabulous lawyer.
an incredible public servant as well. all of these appointments, both individually and together, i think restored faith in the department of justice. the fact that attorney general leavy was willing to sort of, again, follow the law were ever it took him, but at the same time trying to protect executive power in a nonpartisan way. if we think about it, we might say that sounds really difficult hardse in these days, it's to think of attorneys general or presidents we all would have faith of actually doing that. things have become so heavily partisan that a think the idea this could happen at all seems rather extraordinary, but it did . i just want to emphasize a couple of other things about it -- this was all being done by a president who was not elected. the challenge president ford had todoing all this was he had be able to maintain his political support and political viability in the course of doing all this.
he did not have elect oral mandate to do that, so somehow he had to maintain legitimacy for what he did, even though he was not technically elected. that in itself was a delicate act. it included doing things that were extraordinary. he came and again, testified before congress. imagine how unusual that was, that a president of the united states would appear before congress to talk about his actions. it is both appointments, how he modeled himself as someone who was there to be transparent and somebody there to be responsible, accountable for what he was doing -- those things make him quite remarkable. back one of the great public servants of the 20th century, who later became secretary of commerce. his nickname was mr. clean, i think, but if you do not know anything about elliott richardson, you should read up on him. he brought the administration a lot of people who had
reputations and records that really were quite distinctive. this gave it a character and cast that i think helped restore people's faith in government. 's tell us more about leavy specific reforms. he proposed guidelines for the fbi and talked about surveillance reforms. he had quite a record. tell us about it. >> attorney general leavy -- this was a time when executive power, the power of the president, was under great attack. general, edward leavy, believed that substantial but inve power exists, contrast, as michael said, to the current climate where each branch -- perhaps even including the court -- seems to be asserting its maximum authority in either let the courts decide what the limits are, let political process decide what the limits are, president ford
shared with edward leavy the idea of government by discussion . he did not believe that the executive branch should secretly, particularly, press its powers to the limits because this had led to abuses and secret abuses covered up under the rubric of national security. the first generation, for , of the current nsa controversy had occurred. the nsa had been intercepting the fbi and cia doing surveillance of americans. in a case coming out of the district court in michigan, the decidedcourt in 1971 you cannot do that with regard to american citizens. it left open whether there was inherent authority in the president to do eavesdropping
with regard to foreign powers and their agents for national security purposes. edward leavy believed that authority existed, and he set up with president ford a process where he would personally have surveillanceeach for national security purposes, but there was a question asked to whether that was legal. in this corrosive, cynical, post-watergate era, there were risks he was taking. even though he believed the president had the inherent withouty to do things approval from congress, edward leavy felt, and the president agreed with him on this, that things would be more clear, coherent, accountable, and legitimate to the american people if he went to congress, they talked about what the architecture of this national security surveillance should be,
to give a role, but a defined and limited role, to the courts. essentially, edward leavy began the discussion that led to the foreign intelligence surveillance court two years after president ford left office in a statute enacted during the carter administration. it works very well, at least until 9/11. this was a manifestation of the view that although we have a ,eparation of power's -- powers these are three powers that form one government. in a constant colloquy with each duty -- theshare a president, the congress, and the leavy's viewward shared a duty to faithfully execute the constitution to the best of their ability and to try
to reach a consensus and a accommodation. as i said, for about a generation, it led to what reasonably was regarded as a satisfactory resolution of the national security wiretapping issue. edward leavy wanted a role for the congress and the court, but he also wanted it limited. i don't want this to sound too tohnical, but essentially, get a national security wiretap, you need a warrant. it is not a typical wanted based on probable cause that you will get evidence of a crime, but -- it is not a typical warrant based on probable cause that you will get evidence of a crime, on it was a warrant based the assumption that this was a foreign power or agent of a and important
national security information would be obtained if this intrusion on privacy was permitted. thee were efforts to get courts and congress involved in deciding whether this was really a foreign power or foreign agent , and edward leavy strongly and successfully argued that the other branches of government did not have the responsibility to make that decision, nor would they have the information necessary to make the decision. while he was advocating the voluntary diminution of executive power, he was not allowing it to be hijacked. >> this is just fascinating. tremendousscribed a vision of balance where all three branches are supposed to cooperate. how did that happen? did the fact that president ford came from congress influences effort to involve congress in checking the executive?
>> i think the answer is yes. sometimes people refer to as adent ford's presidency congressional presidency, and i think that is partly because he was the only person that could get confirmed to be able to occupy the position of vice president, and the reason he's the only person they thought they could get confirmed is because he was basically so popular in congress. he came into the position of vice president and later became president with people in congress at least respecting him as an individual -- not always agreeing with him, but thinking he was a very decent man, a very thoughtful person. he is basically being a good steward. i say that knowing that we should not overstate the good relations he had with congress. he actually had a remarkable number of his vetoes overridden by congress. more vetoes overridden by congress in his short presidency than were even overridden by nixon in the last couple years of his administration.
that goodwill did not always extend to doing everything he wanted, but i think his willingness to share, to be open , was something everybody appreciated, even more in retrospect and perhaps they did at the time. another thing we cannot overestimate is the extent to which as an individual people really like him. that can go a long way. contrast that with richard nixon, whom i would go so far as to say not many people like him as an individual, even though he was elected president twice -- i think with president ford, one reason why we are here today is because he really exuded and ofodied a tremendous sense decency, which i think everybody in government understood and appreciated. that helped the relationship with the other branches. the conception of executive power he had, which he shared with attorney general leavy, was a remarkable one because it's not one that would be shared by subsequent presidents and attorneys general.
that in itself tells you something. maybe it was driven to some extent by expediency, but i think it was driven to some extent by principal. the president was willing to do something on a principle-basis, which people see even to this act and principled achievement. that is a remarkable part of a legacy, and not many presidents can look back and have the department of justice at least at the top and the relationship with the president always thought of as being perfectly principled, perfectly balanced. >> we have two visions of the attorney general -- what is the traditional one, which has included people like robbie kennedy, as you both describe, a friend of the president, and the other is this nonpartisan model that seems to include edward general stonerney under president coolidge. why is it we have not seen a nonpartisan attorney general
since this administration? >> i thought about that question a lot. office with edward leavy, i wrote him a letter. het,a judge now, not a prop and i am frequently wrong, but this one i think i was right on. i wrote him that the extent to which his successors fall short of his model, his example, will his success in restoring faith in this administration of justice. riska president takes a when he has an honest, independent, impartial attorney general because if he is going to do anything wrong, or if there will be reasonable questions raised regarding his behavior, this person could be his adversary, not his hour i -- not his ally, while they have to
cooperate on other things. the dean of columbia law school was appointed after the infamous teapot dome scandal where the attorney general of the united wass -- united states taking bribes. now, it's a time of crisis, and a person of impeccable intelligence and integrity is brought in. it is really only when things get terrible that we seem to have presidents who realize that they are -- and i think president ford was totally sincere on his part, but that their partisan interests coincide -- good government is good politics, but to the extent confidence in the justice department is restored, as it was by president ford and edward leavy, then presidents feel more to theable going back previous model. >> that's a very good explanation. ? ke, what are others
did the post-watergate reforms, most of which took place under carter, make it harder to reinstate this notion of executive power? >> i don't think they made it harder. one of the interesting phenomena is that they did try to formalize a lot of things through law. they try to formalize some of the important relationships in some of the important institutions that i think congress felt at the time would insure more oversight over the executive and preserve its integrity. one of the key elements of all of that was an act with -- which attorney general leavy himself oversaw. was more conservative -- i don't think politically, but more conservative and thought about ensuring some kind of mightndent prosecutor who end up investigating and overseeing the actions even of a
president, and he had a particular scheme for that in mind, which congress never did enact. it may be worthwhile remembering -- it's often said a government of laws, not of men, it's actually -- to say it's a government of laws still requires people to enforce them. it still requires people to implement them. sometimes we end up with if we have good people in place, people who can be held accountable, people with good judgment, that goes a very long way. that is also president ford's legacy, but with president ander, he, too, meant well trying to ensure greater protection for government ethics. some of those things, we still have in our legal system, but i think, really, the framework for all that was set by president ford. even president carter acknowledged it later, that essentially he could not have been able to do things he did
without having had president and heal a wounded country restore integrity in very important parts of the administration. >> can you talk about the dependent counsel? -- the independent council? >> picking up on something michael said, this is how i got my job as assistant to attorney general of the united states. i was working for the deputy attorney general, and president ford decided to swear edward leavy in at the department of justice, not in the oval office or rose garden as was customary. the only way president and and would have come to the department of justice was in handcuffs -- the only way president nixon would have come to the department of justice was in handcuffs. [laughter] this was an important symbolic event. i got to meet the attorney general, and for me, the rest is literally history. in attorney general said
brief but really memorable remarks on that occasion that we the law is notr an instrument to be used for partisan purposes, and if we are going to have a government of its and not men and women, takes particularly dedicated women and men, like those professionals in the department who have, among other things, a zeal for fairness -- that is almost an exact quote. there was, as i said -- and i worked on this -- proposals for an independent special prosecutor. there were questions about its constitutionality. mehibald cox taught constitutional law. he testified it was probably constitutional. and really be testified right after him that it was probably unconstitutional -- edward leavy
testified right after him. government by a discussion. he brought in -- i staffed this -- three law school deans, several people from the watergate special prosecution force. there were papers. we had an academic discussion, like you would have in either of your law schools about what is the right policy. notrd thought there should be an independent special prosecutor. one, it would diminish the authority and accountability of the attorney general. we got lessreason independent and formidable attorneys general after is that at least until the bill expired, they did not have to be somebody who needed to be trusted to investigate the president. i think edward recognized that in washington, nothing is really independent. if you are not in the
gravitational field of the president, you may be of congress. but again, edward had this concept of the executive branch acting judicially. he realized there was this corrosive cynicism, and there had been actual abuses, so he proposed a special office in the department of justice of a permanent special prosecutor who would be in the criminal division, but he would have a years, term, maybe six and would have the powers of attorney general to authorize wiretaps and do other things. so to create some independence but within the department. i don't think anybody here, including, i hope -- i think the story i'm going to tell you is real evidence of president ford's greatness. i told you the sincere and genuinely gracious things that
gerald ward said when edward leavy passed away -- that gerald ford said when edward leavy passed away. in early 1976, probably january, the attorney general authorized me to speak to a "new york times" reporter who asked if the attorney general knows that the u.s. attorney in new jersey is investigating whether president ford received illegal campaign contributions from the national maritime union. i did not tell him that the attorney general did not know that, but the attorney general did not know what the u.s. attorney was doing. the attorney general had a dilemma. one of his arguments against the special prosecutor bill was that when there was a need, the attorney general could, as a discretionary matter, a point the special prosecutor -- a point -- appoint the special
prosecutor. he understood the really ,orrosive, cynical environment and that would be looked at as another generation of the culture of cover-up, so he decided to do what he said would be done in a time of crisis. he appointed a special prosecutor who had been on the watergate special prosecution force. he was doing internal anticorruption work within the department, and he went on to be president clinton's counsel at the time of monica lewinsky. he probably started his investigation in february, and he closed it in september, saying that there was no that would justify any
further investigation of prosecution. but this was it, public matter matter,was a big public and it revived instance of five memories of watergate and of the controversial -- i would say -- not what irdon -- would have said in 1975, but selfless pardon given to president nixon by president ford, andy president there were many people who think edward leavy's decision was cowardly and cost gerald ford the 1976 election. i'm confident from having heard him speak about edward leavy and from my sense of the man that that was not president ford's view. he knew that appointment was necessary, even though he was utterly innocent, and it did not damage his relationship with edward leavy at all.
i have never told that story publicly before, but i think it really says something about president ford as well as edward leavy. >> there's another extremely significant nonpartisan decision that president ward made that contributed to his constitutional legacy, and that is the appointment of justice significant nonpartisan decision that president ford made. how unusual was it for a president to choose a justice based simply on the fact that he was considered the most professionally accomplished and able judge in the country, not because of his partisan politics, and what does that say ? out president ford >> it says a great deal about president ford. a lot of presidents may say that about their nominee, that this is the best recessional they could find in the best in the professionale best they could find and the best in the country. i think precisely given the way
president ford went about it and given the outcome, you can have great confidence that it is actually quite valid when we talk about the appointment of justice stevens. asking theth, department of justice to undertake that search was itself, at least compared to more modern times, a rather unusual thing. these days, at least in the last couple decades, the white house has tended to be very covetous of determining who will be the nominees, so they tend to consolidate power over that within the white house, not so much the department of justice, so that emphasizes a little bit more the extent to which it may be political. again, president ford understood that in order for this to be credible, in order for this to have legitimacy, and in order for him to ensure they found such a person, he gave it to the people who knew best how to do it, and that was edward leavy and the department of justice, and he basically went with what
they said. all of that is pretty remarkable. they went through what is commonly described as an exemplary process. independent from the president, they scoured the country, went through detailed analysis of all the people they could find. i'm sure it was a coincidence that the person they found was basically a fellow chicago in -- whereoan, because that is edward leavy was from, but i think history has proven it was just a coincidence. to go through that process and come up with the final list itself is pretty impressive. to come up with somebody who i think was himself, both before he was appointed and really since, about as nonpartisan a justice as anyone could be. justice stevens had to fulfill all of this incredible idealism we had about the nomination, and i think to his credit, he did that. maybe it has something to do
with great midwestern values, but at the same time, i think the search itself, if you think about it, was quite unusual. to be able to trust your justice department to do this and come up with the right person. if you think of any kind of analog, it might have been when president coolidge had to figure out a person to put on the supreme court, and he ended up tapping his attorney general, the very man he brought in to clean up the department of justice. i think people all agree he was eminently qualified, and veryantively was always good on the supreme court of the united states. to come back to justice stevens, it's quite a testimony to president ford to use this process, which i think we could all learn from, a process which vetted people very thoroughly and produced a buddy who was always very individualistic -- produced somebody who was always very individualistic, not
somebody who would put his finger in the wind and figure out which way things were blowing. but someone who was always very thoughtful, and later, he would become the senior judge on some part of the wing of the court. he was again very substantive, very thoughtful. i think, if i may say so as a law professor, it is a really important part of being a judge, having the right temperament, being collegial, thoughtful, substantive. not true for everybody. absolutely true for justice stevens. >> tell us about the stevens nomination. what was leavy's view, and why was ford able to pull it off? toon tried to appoint people combine forces. >> we probably should not idealize history too much.
first of all, at that time, i think it was not remarkable for onlyresident to rely attorney general, not the white house counsel. there was not a robust white house counsel's office. there was an excellent white house counsel, somebody who was , butend of the president the president looked primarily to the attorney general, and he appointed a very intelligent attorney general who had very high standards for judges and his assistants, i may say. [laughter] is one. two, in the present environment, john paul stevens would not have been described as glowingly. he was regarded as conservative at the time. of course, what a conservative is has changed. he essentially stayed faithful to his concept of the law, which
was regarded as conservative, and everything else moved way to the right. arguably, he and edward leavy .ere cronies john paul stevens, while a practicing lawyer, i think while a judge on the seventh circuit, taught at the university of chicago our school, but taught prelaw, perhaps with edward leavy. john paul stevens was appointed william douglas. in one of these intriguing ironies, william douglass taught edward leavy, at least, perhaps gerald ford at yale law school. william douglas is the person who strongly recommended edward they for appointment to faculty at the university of chicago when there were very few positions for jewish law professors.
when edward leavy came into office, he knew that william o douglas was very frail. there were four and then five of us who were his special assistance. we are all under 30. two had been first in their class at harvard law school. powell, and heis gave each of us a sitting judge to read their opinions and to advise them on, you know, whether they would make good justices. i got william webster, who later became director of fbi and cia, and was always too busy to get started on the project, which is fortunate because i was not give meaningful advice on that question at that time. was on theuglas verge of going, and edward leavy
received some advance notice of that, he put ron carr, who i would say was one of the two most brilliant lawyers in my generation, on this, and they came up with a list of five or six people. >> who else was on the list? -- must be in the library. i remember william webster, , the president out of brigham young university but had taught at the university of chicago, arlin adams from and gerald ford wrote about this process in a tribute to edward leavy when edward became a professor emeritus in chicago. i just looked at it this morning. the attorney general did this -- he had a very defined conception of what a justice should be, and i actually thought the president was going to appoint edward
leavy. he at that time was 64. but when you looked at the criteria, the others were good, but this was their boss. i thought the president was these werey none of great and appoint edward leavy. but president toward -- president ford wrote about this. he said that he went over the list of attorney general leavy. it was narrowed to two court of appeal justices, and the president took all of this research, their opinions, the that attorney general leavy had generated, and he went to cap david for the weekend. the presidentack, had decided john paul stevens, which i do not know if edward leavy made a specific recommendation from among the , whether he made an explicit recommendation, but in
any event, they agreed that the president took this seriously. he read the opinions, he read the research, and he did appoint somebody who was regarded as conservative at the time, but a real craftsman as a judge, and --le the prediction of what change,e conservatism john paul stevens is a consummate craftsman and a person dedicated to the intelligent interpretation and application of the law was validated by history, i would say. >> i want you to talk more about stevens. died, president ford said that justice stevens was his proudest legacy, completely embraced justice stevens. i had the privilege of interviewing justice stevens for
"the new york times" right before he retired, and he said that he did not change but the court changed. he said every single justice that was appointed after he was appointed was more conservative than him with the possible exception of justice ginsburg. what exactly can explain the transformation of the ? nstitutional debates >> a great question. i just wanted to add one thing considering the appointment itself and then try to address your question. i think one thing we probably all know but sometimes is worth saying is when you are talking about a president, the president is almost always aware that history is watching. when you do something, you know that people 50, 100 years from now are going to be watching very carefully. making the right decision, having the right process is very important. you have to also recall that when president ford was in
congress, one of the things he attempted to do was to introduce an impeachment resolution against william o douglas. i expect president ford remembered that. if you are replacing douglas, one of the things you have to think about is the way to go about doing that and the way that everybody will understand, have complete integrity, in a very legit amick, dependable process, and that is exactly what he did. he's not the first president to be in that situation, but how you handle that arguable conflict is a measure of the presidency. which brings us to justice stevens and what has happened to conservatives. think that there are a couple of things -- one is i think justice stevens is very much conservative, but he is also very much a private citizen. test.adma pragmatism used to be a big part of conservatism, i think. part of that ideology, for lack
of a better term. a judge could be conservative and at the same time be pragmatic in the way he went about executing his job. mightample, a pragmatist think, as what a lot of people, let's decide things case-by-case, decide incrementally. that is a conservative approach. it is also a very pragmatic approach, and i think that was the hallmark of justice stevens. i think what has perhaps disappeared to some extent from the nature of conservatism -- and this is a theory -- is it is less pragmatic. much more about the ideology and principles than it is about pragmatism. if you hade disposed a certain ideology simply to strike down a lot of things, and whatever chaos or havoc it might produce is just sort of incidental damage. describebe a way to justice thomas' approach, which is overruling all residents, change the law, correct the ship, get it rightly on course, but that is not a pragmatic approach. you could say it is principled,
but it's not very pragmatic, and it may not necessarily be very conservative because it's going to produce a lot of ramifications. or when chief justice roberts says in his conservation hearing -- confirmation hearing that he has to be careful about overruling precedent because if you do it too often, it's like a jolt to the system. is much morets pragmatic in approaching president, maybe weakening precedent, but not overruling his farmers as much. might might say -- others be less pragmatic in approaching president and overrule things to stem the damage, the damage done, and get doctrine more straightened out. i think the other thing that has happened, frankly, has to do with a difference of opinion by executive power. i think some justices come to the court from the executive branch thinking different about the scope of executive power perhaps being unlimited, which i would argue, of course, the framers would never have endorsed.
a conception of executive power being almost unlimited, not caring as much about the political also become ahas factor, and i think to some , having a more well-developed ideology as opposed to pragmatism is another element of the conservatism we are seeing today. >> if you were appointed by president reagan in 1985, and yet, you have worked with many of president toward -- president , includingciates future vice president cheney, justice scalia. what changed in the nature of the constitutional debate? we're told vice president cheney and some of his associates were very influenced by congress' response to watergate and what they perceived as a weakening of executive our after the ford administration. tell us what you think shifted in the debate. >> perhaps the role of dick
his stature in the administration changed. in the ford administration, first donald rumsfeld from 'sicago was president ford chief of staff, and he knew edward leavy. attorney general leavy was brought to his attention for this position. his deputy and successor, i believe, was dick cheney. -- not sure that it cheney that dick cheney's position on executive power was any different in the ford administration than it proved to be in the george w. bush administration. his influence in this area and the opportunities to exert environment that where there were critical corrosive cynicism to be
addressed was different. my guess is, although i do not know him, that you will not find any evolution in dick cheney's views. what you will find is that there was a later opportunity to , and in a more absolute way, but it is very different from the attitude that edward leavy had and that president ford had of this idea of the federal government having engaged in as cooperative, not a competitive or adversarial endeavor. all i think president ford would have said -- the members of congress, the members of the u.s. court, and the president to seee the same oath that the constitution is
faithfully executed, and all to, one,esponsibility try to interpret the constitution honestly, even though they may have different perspectives and different institutional interests, and work with each other to make that constitution viable in their time. the constitution itself, as you professors can tell me better than i can tell you, is a result of a compromise. i know edward leavy understood and foresaw that compromises would be required in the future, not, like, a sporting contest where you are trying to get the most points for your side. you are trying to serve the public and cause the constitution to serve the public. that is an attitude that rare, although not unprecedented, and has become much less rare recently, as you
say. inspiring vision that we are hearing, ladies and 'sntlemen, of president ford nonpartisan approach to the constitution, and i think it is our job in the time we have to changed to make it no longer the center of national life and what can be done to resurrect it. your hardheaded analysis of some of the structural, legal, and political changes since the ford administration that made this nonpartisan view of the constitution so hard to resurrect. >> i think he identified one of them. some of it is a reaction to the post-watergate world. that is to say a series of laws, including arguably the watergate tape case, which a number of people have said they think weekend the presidency. i have, for example, heard judge
kavanagh say this. talk about how if you look at not just clinton versus jones, but the watergate case, look at it in a series of laws, they have actually made it harder for presidents to function, not easier. to some extent, i think some these believe that doctrinal and other developments have perhaps pushed some people to defend executive prerogatives more vigorously than they might otherwise have felt the need to do. i think the second thing is always keeping an eye on the relationship between congress and the president. is it a collegial relationship? rarely. oftentimes, the more threatening congress will be to a president, the more a president sometimes may find it harder to work with common ground or work with congress, so the more friction there is between the branches, the more each branch, i think, is motivated and driven to protect its privacy. what we have seen a lot in the last couple of decades is
friction. after all, we have the impeachment of president clinton, numerous threats of impeachment and other things against president obama. obviously know with president george w. bush, there was not a lot lost between him and democrats. will let you know how people feel about vice president cheney. i say all that to suggest that this friction is alive and driving a lot of the relationships between the congress and the president when they find it harder to work together, and i think that is see workculty we itself out with respect to particular laws. for example, the elimination of the filibuster is to some extent toeaction to overreactions obstructing judges and protecting certain prerogatives. there is a give-and-take here, and that is not altogether
healthy sometimes. that drives a lot of the drivingty we see in people to positions where they have got to protect prerogative. the courts used to be bystanders . the courts used to be on the sidelines for the most part, letting these branches either work it out or just fight each other to a drop. interestingly enough, let's go back even to that famous case, the watergate tapes case. it is a unanimous decision, and one that we take today as almost on faith, but it is worth remembering that some of the most eminent constitutional scholars at the time -- for example, charles black at yale and gerald hunter as stand for -- thought the court made a mistake getting involved. it was their counsel for the court to stay out of it. these were teed eminent people who basically believed that it would have been better for the branches to work it out than for the court to step in. because if the court stepped in, which branch inns up getting
power, and which branch ends up losing power? the branch that got more power as a result of that is the supreme court. the branch that lost power would be perhaps the other. i just mention that to say that now we've got to take into fitsnt where the court into the struggles as well. if the court ends up being an arbiter, the other branches are likely to lose power as a result. the problemsis is is the legalization of politics. once you pass laws that require the branches to press against each other, they respond by taking more extreme positions. two you agree? how would you extend his analysis of the decline of nonpartisan constitutionalism? >> i would say that president , at least in the watergate context, is primarily responsible for this. the court can complain about decisions.
the nixon tapes case came out .uring the watergate hearings there were two subpoenas issued, one by congress, one by the watergate special prosecutor. , and president nixon participated in the litigation, and it was thought that the district judge, somebody who held my current position, would find for the president. he claimed executive privilege. he never thought he could lose. but this was an egregious circumstance. the judge did what our double coxs -- what archibald characterized the special prosecutor as unimaginable -- he ordered them to turn over the
tapes. the president forced cox to be fired. he said he would no longer participate in the litigation. it was such a firestorm, so much public opposition to the president defying the law, that he appointed a new special prosecutor, went to the supreme , probably perhaps expecting, to win, and the supreme court came out with a very limited decision. the grand jury subpoena to get evidence of a crime. it did not enforce the .ongressional subpoena this was in a conventional sense. it was very careful, as i it was notsay that necessarily saying there was not a complete privilege in the area theational security, so misconduct by presidents not
being candid with the american ,eople generated these cases and the court, i think, was .autious and approaching them if not facing rebellion, revolution. there were people on the streets from the annan getting murdered, things that had never happened before. there was a frenzy. the power of the executive branch was weekend, although, again, the two of you could tell them better than me, at the time of the constitution, it was not anticipated that the president or the executive would be the most powerful branch. the congress was to be expected .o be the most powerful branch throughout history, there is a creative tension, trying to change the equilibrium between the executive, congress, and the
reluctant toy are decide a dispute between congress and the president, and it think that is still very much the case. it is unfortunate that this has been generated, and i think it changed a lot when robert bork was not confirmed for the supreme court, that the courts began to be viewed much more as partisan institutions themselves and as institutions that might arrogate power to themselves, and it intensified this cycle that gets us to this present atmosphere. >> gentlemen, this has been absolutely fascinating. we need to go to closing statements so that we can have 's excellent chocolate
chip cookies. i'm going to ask you to take about a minute each to tell me what is the one thing that you think structurally should be done to resurrect president ford 's visions of nonpartisan constitutionalism. >> far be it for me to delay those chocolate chip cookies. -- take my full minute. i think that following the path he chose to follow with regard to the department of justice is an obvious thing to consider. somebody asng attorney general who is not just somebody you know but summit he who has sort of a universally and leveled integrity of commitment to certain principles would be a great thing. i think trying to work not to overly politicize the department of justice would not be a bad thing, either. whether it is due will bowl or not i could not tell you. right now, we are seeing every administration absorbing power into the white house. ars in the many cz
white house right now, who essentially oversee what the departments do and therefore duplicate to some extent or overrule. it may not be a good development because it means the white house is absorbing power. if you diffuse it and share it, which is something he did, it's a good recipe for a healthier system. >> thank you so much. one-minuter recommendation for resurrecting the nonpartisanship up president ford? >> it's not a recommendation because i would hate to live through the crisis of vietnam and watergate again, but i think in the present climate, to restore it, we would probably need another crisis and an unelected president. i think that the positive things we are describing are a tremendous tribute to president gerald ford. he came into office without a
political mandate, without the vote of the american people. toould challenge anybody field a team of cabinet members nelsone president rockefeller like the all-stars he brought in. he brings in governor rockefeller, who had been a leading contender from the liberal republican wing to be president of the united states. many presidents would feel threatened by somebody of that stature. the secretary of state was henry kissinger. transportation, a brilliant lawyer, william coleman, the first african-american clerk on the , john dunlop from m.i.t., the secretary of harvard , elliot richardson came back to the congress department. this was, i think, a testament a quality that i have not goingn presidents since
back many years, which is humility. i think our government was founded by formidable men at the a great sense of humility. the first amendment, which promises religious freedom, did not just recognize the diversity of opinion. many of the founders were devoutly religious men. but they also understood the unknowable nature of the divine and respected people with different views if they held them with integrity. shared president ford those qualities. he knew there were good people in congress and that the executive branch did not have a monopoly on wisdom and that the country would be better served if there was a collaborative process. he found an- attorney general who had a
sophisticated understanding of executive power and would not let it be hijacked, but at the same time, wanted it this a of that the parameters power, he recognized, could be affected by legislation and maybe favorably so. think that gerald ford really was a great president. he had a short tenure. .e deserved to be remembered ,t implicitly, you remember him by leaving him out of your book. i predict that the time will come when his administration as abe studied and held up model to which we would like to try to return. >> beautifully said. we have learned in this fascinating discussion that distinctiverd had a
constitutional vision based on nonpartisanship, and in essence, i cannot imagine a better first conference for the national constitution center with our nonpartisan mandate than to celebrate and mark the constitutional legacy of president ford. let us have our chocolate chip cookies, reconvene in 15 minutes. please join me in thanking our panelists. [applause] [captions copyright national cable satellite corp. 2014] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] >> live coverage of the u.s. house on c-span and the senate on c-span2. we complement that coverage by showing you the most relevant congressional hearings and public affairs events. where home to american history to be with programs that tell our nations wars, including the civil 150th anniversary. american artifacts, touring museums and historic sites to discover what artifacts reveal about america's path. history bookshelf with the
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