tv The Presidency CSPAN December 14, 2014 8:50am-10:01am EST
conversation. same time, you can have someone who's trying to private conversation and they will go to great links to e somewhere that's completely secluded. we're not dealing with the individuals' xt, preferences and experiences around privacy and their needs that privacy. >> monday night, 8:00 eastern on the communicators on c-span 2. up next, a conversation about gerald ford's constitutional legacy. the u.s. ef judge for district court for massachusetts, mark wolf, and constitutional law professor gerhardt discuss the 8th president richard nixon as well as ford's relationship with edward lee. his event was hosted by the gerald r. ford presidential museum. it's just over an hour.
>> thank you, so much, hank. i'm privileged to be the resident and ceo of the national constitution center in philadelphia, which hank also mentioned as the only america chartered by congress to disseminate the u.s. n about constitution on a nonpartisan basis. what an inspiring charter that is. be here at the gerald r. ford presidential about the closing of the constitutional legacy of president ford. this is the first of what we will be a series of collaborations with presidential libraries and museums across the country where the national constitution center will join in the ership to explore not of the l legacy resident, but the constitutional legacy. every person who serves as the resident of the united states
makes a significant contribution to the understanding of the constitution and the limits it governmental power. not imagine a better panel than today. of panel is featuring two the pre-eminent constitutional scholars of the ford dministration as well as legal thinkers. ger heart is with chapel hill. calledll street journal" "the forgotten presidents" named best of the year. we had a riveting discussion presidentse thursday often forgotten by the general public at large made a ignificant contribution to our
constitutional understanding. my other friend, mark wolf is here. to join he's taken time us. he was appointed to the district court for the district of 1985 and servedn as chief judge from 2006 through 2012. now. a senior judge he previously served in the ford justice department as a special attorney to the deputy general of the united states and the attorney general of the united states. certificate ved a of appreciation from president ford for his work in the of indo-chinese refugees. going to jump right in. nd michael, you've written the great book about the forgotten presidents. one thing that emerges is that ou can be forgotten and still make a significant contribution to constitutional understanding, or you can be remembered and no contribution to constitutional understanding. but as i understand it, you is eve that president ford neither a forgotten president, a bad one because you think
a significant t, contribution to understand in the executive power. i'm honored t say to be here, appreciate the chance to be a part of this talk about a president whose legacy i respect a great deal. here's the good news -- the dent ford is not in book. and the question becomes why? ford had a president tremendous constitutional legacy and is particularly striking fact that nsider the he was president for less than 900 days. days, i thinke 900 what he did as far as the is concerned did have an impact. i'll mention how they did. we have people here today. for a forgotten president, you could throw in a bet that no one would come. chester arthur, six people might come. but the fact that you have the wonderful library at the museum. those help restore -- those keep his memory alive. we keep talking about the things that he did.
of course, first is the fact that he became president. really is the first and only president whose come by way to office through the 25th amendment. elected.t and even without that electoral mandate, he was able to do a lot which we'll y of talk about today. they include some of the following -- he took over at a time when the justice department and administration were reeling from charges of corruption. restored integrity in the epartment of justice through a series of appointments and the way he administered it. he most important is the appointment of edward levy, then president of chicago, he became attorney general. nd interestingly, i think there's a symmetry there between ford and coolidge. is e another president not -- along were not remembered in the white as house when there was a great deal of corruption. he needed something similar.
the dean of the high school, restoring integ rety there. in how to setetry out and each accomplish restoring integrity to the department of justice. of justice stevens done in an exemplary way. to the trending department of justice at arm's white house is unusual and distinctive and the things that we could point to. pardon talk about the later. all i'll say that in closing is the most probably famous course in american history and what is interesting about that as you all know is he his popularity drop dramatically. if it were a it as really important step to healing the country. itself is an indication of how memorable the presidency was. >> thank you for the wonderful our topic. mark, you were an assistant to the attorney general edward levy mike mentioned -- mike talked about levy as ford's crowning accomplishment because
the nonpartisan add tut towards executive power that he displayed. tell us about the levy decision what a contribution it was. >> happy to do that. i would like to say how invited g it is to be and be able to come. 'm a united states district judge in my 30th year. i've just come from prague where i was working with young journalists and lawyers from russia. i was talking to them among -- about the roles that play in nd the media the united states. and a meaningful part of my focused on watergate and my experience, working in ford's administration for attorney general levy. inspiring s is an example of our country at its best to embattle people from the world. the opportunity that i had when 30 years old had a
my sforming effect on interests, my aspirations, and my standards. gratifying to be able to express my gratitude to as well as rd attorney general levy for that. think, has a i vibrant, living legacy. when attorney general levy president in 2000, ford came to the university of at the and spoke memorial service. levy recruited edward from being the president of the united states of chicago because wanted somebody of impeccable a egrity and intellect at time of corrosive cynicism. cynicism throughout the country. atergate and the cover-up had
severely damaged confidence in the justice department as well presidency. all kinds of abuses by the fbi revealed.ad been and vietnam war caused considerable controversy. the department of justice particularly had been used for partisan purposes. mitchell, the attorney general was also president campaign manager in 1972 abusing to prison for his office as attorney general. to this dent ford said gathering at the university of he recruited hen edward levy, he told them, i protect the rights of american citizens and not the president who appointed you. edward levy's politics when i appointed them, ll i know is he shared my reverence for the constitution. we were talking last night and michael said, well, wouldn't any
president say that? success the remarkable of president ford and edward levy. ecause that certainly in that period was not the paradigm of the attorney general. kennedy had appointed brother robert kennedy who had many virtues. but also use the department of brother's protect his personal reputation and partisan interest. john mitchell had done as well. the d levy was quite opposite. he and president -- president delegated him substantial autonomy, but not complete independence. nor did the attorney general want independence. at that time, there were many of osed bills independent the president, for example, the way the fbi director is now to ave a ten-year term that will
survive the president to appoint im to take away from the justice department the authority investigate high level officials and prosecutors. edward levy's view was the president, the attorney general the president to for policies, what are the department of he justice going to be? drug enforcement, civil rights, antitrust, for example? and also when the law was guidance from the president was appropriate. and interestingly, edward levy had been ent ford graduate students at yale law school at the same time. self-de dent in a self-deprecating would joke he team and e football levy the reputation for tremendous intellect.
of the -- the department justice could never be an instrument for partisan purposes. the law had to be administered impartially and president ford wanted him to do that. years, the t cynicism, corrosive cynicism of justice partment and the executive branch essentially eliminated through the honest administration of levy but d by edward in very close collaboration with president ford. >> great. mark has described this incredible achievement. two years, the most polarized in history. president ford comes in. concern about xeng tif power and abuses of wiretapping and all sorts of instruments in and presidentower ford transforms that. how did he do it? what are other appointment ms he
executive hout the branch that helped him do this? and what was the result? -- what was the result of this executive ion of power? >> well, worked with most of the folks in the department of justice. a remarkable ther team of people. nd each of whom was exemplary, each of whom, i think, took that charge from the president quite we'resly, which was to -- going to follow the law, protect people, and we're not going to be partisan. was -- that was particularly difficult at the time because you need to there's a tremendous spotlight placed on department of justice at that point. because up until then, there been a spotlight placed in the department of justice. so everything happening was happening as if it was happening a microscope. among the people were carle hills, richard thornberg, rex lee, just somebody i got to know ery well, fabulous lawyer that kept on. robert bork.
one needs to remember was a remarkable lawyer and incredible public servant as well. the appointments individually and together i think restored faith in the department of justice. general that attorney levy was willing to, again, follow the law wherever it took him. but at the same time trying to executive power in a nonpartisan way. if we think about it, we might really , that sounds difficult. because in these days, it's hard to even think of attorneys or presidents we all have faith or doing that. heavily ve become so partisan that i think the idea that this could happen at all seems rather extraordinary. did.t and i want to emphasize a couple of things about it. done er this is all being by a president who wasn't elected. so the challenge that president this, d in doing all of in handle off of the ball, for example, to attorney general levy, he had to maintain his political support, some political viability in the this.e of doing all of
he didn't have a mandate to do that. he had to maintain the everything he was doing even though he wasn't technically elected. delicate tself, was a act. and it included doing things that were extraordinary. to takeple, again, just something from the pardon, he came and testified before congress. those thingsnusual are remarkable. it back to the administration. -- f the great publ lick public servants of the 21st century. if you don'twas -- know anything about elliott richardson, one of the great century. in the 20th so you brought to the administration a lot of people who had reputations and records
really quite distinctive. and it gave it a character and a think helped restore people's faith in government. >> mark, tell us more of some of levy's specific reforms. he proposed guidelines for the fbi. about intelligence and surveillance reforms. he had an ambitious record. tell us about it. attorney general levy, this is a ime that the power of the president was under great attack. and the attorney general, edward believed that substantial executive power existed. michael said t as climate where each branch perhaps including be asserting s to the maximum authority and you know let the courts decide what limits are or the political process decide what the limits
ford and edward idea of dward's government by discussion, he that the ieve executive branch should secretly toticularly press its powers the limits because this had led o abuses and secret abuses covered up under the rueb ri -- ruberick of national security. current nsa controversy had occurred. nsa had been interrupted by the surveillance of american citizens. the case coming out of the district court here in michigan, keith reme court in the case 1971 before gerald ford's president decided you can't do with regard to american citizens. was ft open, whether there inherent authority in the eavesdropping
with regard to foreign powers agents for national security purposes. dward levy believed that authority existed and he set up with president ford a process would personally have to authorize each surveillance security purposes, but there was a question as to whether that was legal and in corrosive, cynical postwatergate era, there were taking.at he was even though he believed that the president had the inherent uthority to do this, without anything from congress or the court. felt in president ford fully supported him in this that be more clear, more coherent, more accountable and to the american people if he went to congress. they talked about what the rchitecture of this national
security surveillance should be. and to give a role but a defined limited role to the courts. essentially, edward levy began that led to the foreign intelligence two years e court after president ford left office statute enacted in the carter administration. well at least until 9/11. but this was a manifestation of we had a hat although separation of powers, these were three powers that formed one government. in a constant colloquy with each other that should be struck -- a duty -- the and edward levy's to , shared a duty faithfully interpret the constitution to the best of their ability. consensus to reach a
and an accommodation. nd as i said, for about a generation, it led to what the nably was regarded as satisfactory resolution of the international national security wiretapping issue. wanted say, edward levy a role for the congress and the courts. limited.lso wanted it in the way -- i don't want this to sound too technical. essentially, you don't -- security tional wiretap, you need a warrant. basedot a typical warrant on probable cause that you'll crime, but it f a was a warrant that relied on a certification of a high level that usually the attorney general that this was a of a n power or an agent and important in
information.ty this intrusion on privacy was permitted. get were efforts to through legislation the courts and the congress involved in whether this was really a foreign power. foreign agent. edward levy strongly and successfully argued that the ther branches of government didn't have the responsibility to make that decision or the information necessary to make the decision. so while he was advocating the dimunution of xecutive power, he was not allowing it to be hijacked. >> this is fascinating. described the balance of three members are observe.to did president ford involve the congress in checking the executive? >> i think the answer is yes.
people refer mes ford's presidency as a konthsal presidency. he was the only person that they could get confirmed to be able occupy the position of vice president and the reason he was only person that could get confirmed is basically he was so fop ullr in congress. he came to 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 that he was a very decent man, a thoughtful person, that he basically would be a good steward in this time period. he had the t is confidence of congress. now i say that knowing that we the good overstate relations he had with congress. he had a remarkable number of vetoes overwritten by congress. more vetoes overwritten by his short presidency than even overwritten by nixon n the last few years of his
administration. that goodwill didn't extend always to doing everything he wanted. ut i think the willingness to share, to be open, was something that everybody appreciated, even retrospect than perhaps they did at the time. the other thing i think we can't extent to te is the which he's an individual. long an -- that can go a way. and so if you contrast that, for example, with richard nixon who as saying not many people really liked him as an individual, even though he elected president twice, but i think with president ford one reason why we're here today and reason we have a wonderful place like this is because he embodied a tremendous sense of decency which i think everybody in government understood and appreciated. helped, i think, the relationship with the other branches. he concession of the executive power he had which he shared with attorney general levy was a remarkable one. pointed out as he would be shared by subsequent presidents in attorneys general.
tells you elf something. maybe it was driven to some extent by expediency. but it was driven ultimately by principle. that, again, says a great deal. he president was willing to do basis ng on a principle which people see to this day as a principle act and achievement. of a a remarkable part legacy. and not many presidents i think the ook back and have departments of justice to the top or the relationship to the president. always thought of being perfectly principled and balanced. >> we have two visions of the attorney general. one is the traditional part, which is partisan. including one like bobby kennedy described.h friends of the president who devoted this interest and the nonpartisan model with levy under ford and attorney general stone under president coolidge. why isn't we haven't seen since the ford administration a nonpartisan attorney general?
>> i think i thought about that question a lot. when i left office with levy, i wrote him a letter. not a udge now, i'm prophet. i'm frequently wrong. and this one i think i was right on. your question. i wrote him that the extent to falls our successors your of your model, example will be evident of your uccess in restoring faith in this administration of justice. takes a nt, you know, risk when he has an honest impartial t and attorney general. if he's going to do anything this person could be his adversary, not his ally. hile they have to cooperate on
other things. the dean of public lobbyists appointed after the scandal where the general of the united dougherty was taking bribes. crisis.it's a time of t's only when things get terrible that 245i have them brought in that -- on his part interest partisan coincides -- good government is politics. but to the extent that restored, then presidents feel more comfortable in going back to the previous model. very good a
explanation. id the post watergate reforms under carter make it harder to reinstate this notion of power?isan executive >> i don't know that they made it harder. i think one of the interesting that they did try to formalize a lot of the things through law malize some of the important relationships, some of the mportant institutions that i think congress felt at the time ure more oversight on executive and preserve the integrity. one was what general levy imself had seen as being a defective institution. and so he was more conservator, don't think politically, but more conservative in the thought about, okay, how do we ensure kind of independent prosecutor who might end up overseeing theand
actions of the president. he had a particular scheme for that in mind which congress act. did in the it's maybe worthwhile remembering that while we have the it's often said government of laws, not of men, not a stigma of what i thought beautifully worded. it's actually -- to say it's a government of law still requires enforce them. i78 ill requires people to mrement them. if it's not directed by law, if people in place, people held accountable, people with good judgment, that goes a long way. so i think it's president ford's legacy. president carder, he, too, meant well in trying to ensure greater protection for government ethics. some of those things we still have in our legal system. framework that the of all that set by president
president e acknowledging that he couldn't do the things he did without ford heal a ent wounded country and restore integrity. can you talk about the independent council and the contrast between the carter and the ford vision? me pick up in getting to that on something that michael said. i don't know if you read it -- well, this is how i got my job is assistant to attorney general of the united states. i was working for the deputy attorney general. decided to t ford swear edward levy in at the department of justice, not in garden office or rose as was customary. the only way president nixon would have come to the department of justice was in handcuffs. so an important symbolic act. i got to meet the attorney general. for me, the rest is literally history. the attorney general said in
really memorable remarks on that occasion that, you know, the law is not an be used for partisan purposes. a if we're going have government of laws and not men women, it takes particularly like ted women and men those professionals in the department who have among other things a zeal for fairness. those are -- that's almost an exact quote. i re was as i said -- and worked on this -- proposals for special ndent prosecutor. there were questions about its constitutionality, archibald cox constitutional law and was the fired special prosecutor thought a proposal on at that time, he testified was probably constitutional. testified right after him it was probably unconstitutional. had principle he
believed his views. hi staffed this. three law school deans. several people from the atergate special prosecutors, papers, we had academic discussion that you would have in your law schools about what's the right policy? nd edward thought that there shouldn't be an independent special prosecutor, one, it diminish the authority and accountability of the attorney general and i think one reason we got less independent in attorneys general afterwards that at least until they didn't red, have to be somebody who needed to be trusted to investigate the president. but i think edward recognized that in washington, nothing is independent. if you're not in the gravitational field of the
president, you may be of congress. but again, edward had this executive branch act being judicially. and he realized that there was cynicism.osive and there had been actual abuses founded concern for citizens. of e proposed a department justice affirm a permanent special prosecutor in the criminal division but he would defined term, maybe six years, would have the powers of general to authorize wiretaps and do other things. so to create that some but within the department. think -- i don't think anybody here including i hope this. will misunderstand but i think the story i'm going tell you is real evidence of greatness.ord's and d you the sincere
genuinely gracious things that general ford said when edward levy passed away. 1976, probably january, the attorney general authorized speak to "the new york times" reporter named myron farber. and he said did the attorney general know that the u.s. new jersey is investigating whether president ord received illegal campaign contributions from the national maritime union? i didn't tell them the attorney that.l didn't know but the attorney general didn't know what the u.s. attorney is going to do. him in.d and the attorney general had a dilemma. his arguments against the special prosecutor bill was that when there was a need, the attorney general could as a matter, appoint the special prosecutor.
he had complete confidence in the ability of the department of himself to conduct any investigation, which should remained confidential. but he also understood the corrosive sin kl environment that would be looked t as, you know, a renewed -- another generation of this culture of cover-up. so he decided to do what he said be done in a time of crisis. he appointed a special man named chuck ruff who had been on the special prosecution force, doing internal anti-corruption work within the went on to be president clinton's council at the time of monica lewinsky. his ruff probably started investigation in february and he it in september saying that there is no evidence that
any further investigation of prosecution. but this was a big public matter and it revived and intensified and of the watergate controversial, i would say selfless pardon. i would have said back in 1975. selfless pardon given to president nixon by president ford. were many people in the republican party, i know, levy''s that edward cowardly and cost ford the '76 election. from having heard him speak about edward levy and man that nse of the that was ford's view. that appointment was necessary even though he was and it didn't t damage his relationship with edward levy at all.
story publiclyat before. but it says something about president ford as well as edward levy. >> there's another extremely significant nonpartisan decision that president ford made that contributed to his constitutional legacy and that's he appointment of justice stevens. we are privileged to be able to have a conversation with justice later today. michael, how unusual was it for a justice to choose based simply on the fact that he as considered the most professionally accomplished and able judge in the country, not because of his partisan politics nd what does that say about president ford? >> it says a great deal about president ford. a lot of presidents say that about their nominees. is the best professional i could find and the best in the country. to i leave it to you determine whether or not that has credibility when uttered by other presidents.
think precisely given the way president ford went about it and given the outcome, you can of confidence that it's valid when we talk about president ford's appointment of justice stevens. begin with, asking department of justice is sort of undertake at least h was itself compared to more modern times, rather unusual thing. days, at least in the last white of decades, the houses tended to be very covet goingof determining who's to be the nominee. they asserted power over that. in the white house, not so much of justice.nt so that emphasizes that a little bit more the extent to which it political than it wouldn't be. but, again, president ford i think understood that in order to be credible, in order for this to be a legitimacy, and, in fact, in for them to ensure that they found such a person, they gave it to the people who knew it.t how to do and that was edward levy and the department of justice.
then he basically went with what they said. all of that and they went -- what is really a commonly described as a exemplary process. independent from the president, scoured the country, went hrough sort of detailed analysis of all those people that you could find. i'm sure it was a coincidence they found was basically a fellow chicago wan. because that's where edward levy is from. but i actually think history's proven that it's just are a coincidence. so to go through that process the final up with list itself is pretty impressive. to come up with somebody who i both before helf was appointed and really sensed justices nonpartisan of as anybody could be. so justice stevens, of course, fulfill all of this incredible idealism that we had about the nomination. credit, he to his did that. o maybe it has something to do
with great midwestern values? time, i think e the search itself, if you think unusual to as quite be able to trust your justice department to do this and come person. right if you think of any kind of when , it might have been president coolidge had to, premise gure out the and he tapped his attorney general, the man he brought in the department of justice, harlan fitzstone. he was all people agreed imminently qualified and ubstantively, always experienced on the supreme court of the united states. back to stevens, he used this process which we all from.d a process we vetted thoroughly and produced someone who was individualistic. always very much sort of his own person. not somebody to put his finger
and figure out which way things were blowing, but substantive and thoughtful. he became this sort of senior judge on some part of wing of the court, he was very substantive, very thoughtful. and anybody who worked with the he was a delightful person to work with. i think if i may say so as a law a grip -- a very important part to be a judge. having the right temperament, collegial, thoughtful, substantive, not true for everybody that wears a robe. true for justice stevens. >> mark, tell us about the stevens nomination. levy's view, and why was it that ford was able to pull it off? fter all, the court was polarized, nixon would try to appoint people who would turn peace rt to favor the forces rather than the criminal forces and ford came up with this nonpartisan approach? well, i think we shouldn't idealize history too much.
first of all, at that time, i think it was not remarkable for the president to rely on the general, not the white house council. it's not a robust white house council's office. there was an excellent white house council, somebody who was president's, e of michigan. but the president looked attorney to the general and he had appointed him who had very al high standards for judges and assistants, i may say. that's one. environment,resent paulsteins v -- paul glowingly.n't he was appointed a conservative at the time.
has said, aithful he to his concept of the law, which was regarded as conservative. moved way tog else the right. arguably, he and edward levy were cronies. ohn paul stevens, while practicing lawyer while a judge on the seventh circuit taught at the university of chicago law school, taught antitrust law. he appointed one of his cronies. so of course that's not how it worked. appointed.stevens was in one of these intriguing o. douglas liam taught edward levy, at least, perhaps gerald ford at yale law school. william o. douglas was the strongly recommended edward levy for appointment to university of the chicago when there are few ositions for jewish law
professors. when edward levy came in to office, he knew that william o'douglas was very frail. there were four and five of us were special assistants, all under 30. first in m had been their class in harvard law justice d clerked for lewis powell and he gave each of a sitting judge to read their them on, nd to advise you know, whether they would make good justices. wester who later ecame the director of the fbi and the cia. he was always too busy, which is fortunate because i was not qualified.
narrowed to two court of appeals justices. and the president took all of research, their opinions, the memos, attorney general levy went to camp david for the weekend. back, the e came president decided, john paul stevens, which i don't know if levy made a specific ecommendation from among the final two. if he did.
event, they agreed hat the president took this seriously. he read the opinions, he read the research. appoint somebody who was regarded as conservative at the time but a real craftsman as a judge and while the prediction future conservatism definition change, the projection of john paul tevens as a consummate craftsman as a person dedicated intelligent, al, interpretation and application of the law was validated by history, i would say. >> i want you to find more about of ens and add to the mix the fact that before he died, president ford said that justice stevens was the proudest legacy. completely embraced justice stevens. had the privilege of interviewing justice stevens for "the new york times" before he
i didn't d he said change, the court changed. every single justice appointed after i with the of justice eption ginsberg. what can explain the transformation of the that tutional debates so justice stevens conceived as a nonpartisan conservative when he retired as d and being viewed as the most liberal justice. >> a good question. to add one thing to the mix. appointment ng the itself and then try to address the request. think one thing we all know and sometimes it's worth stating you talk about a president, the president is always aware that history is watching. so when you do something, you know that people 50, 100 years from now are going to be it very carefully. so making the right decision and aving the right process for making the decision is very important. you also have to recall that when president ford was in
congress. the things that he anempted to do was introduce impeachment resolution against douglas. and i expect president ford remembered that. replacing william is the way you can keep doing that and everybody has complete integrity is legitimate, dependable process. that's what he did. he's not the first president to that situation. but how you handle that conflict is a measure of the presidency. justice ngs us to stevens and what's happened to well, i think that there are a couple of things. justice at i think stevens is very much conservative. but he's also very much a prague -- pragmatist. i think pragmatism used to be
conservatism. part of the ideology for back of term.tter he was pragmatic in the way he executed his job. as agmatist might think would a lot of people, let's case-by-case.hings decide things incrementally. that's a conservative approach. a very pragmatic approach. that was the hallmark of justice stevens. what's perhaps disappeared to nature of from the conservatism is it's less about ideology and principle than pragmatism. so, for example, one might be disposed if you had a similar ideology to strike down a lot of or gs and whatever chaos havoc it might produce is just sort of incidental damage. hat may be a way to describe justice thomas' approach which is i want to overrule all of the precedents, change the law, the shift, get it rightly on course. but that's not a pragmatic
approach. could say it's principle but not pragmatic. it may not be conservative it's going to produce a lot of ram my fashions. or when chief justice roberts in the confirmation hearings, i have to be careful in overruling because if you do it's a jolt to the system. electric shock though the system. justice roberts much more pragmatic in approaching precedent. can, but not overruling it as much. justice stice scalia, thomas, might be less pragmatic in approaching precedent and okay, lets's overrule things because we have to extend damage done. the get the constitutional doctrine more straightened out. happened, thing that's frankly, is it has to do with the difference of opinion about executive power. to ink some justices come the court from the executive branch thinking differently about the scope of executive being unlimited which i would argue of course the framers would never have
endorsed. so i think having a conception almost tive power being unlimited. not so much about the political amifications about the decisions, also it becoming a factor. i think to some extent -- having a more well developed ideology as opposed to pragmatism is another element of the conservatism that we're seeing today. appointed by president reagan in 1985 and you worked with many of president associates, including the future vice president cheney, ustice scalia, all of these people were in the justice department, what up change in he nature of the conservative constitutional debate? we're told that vice president of his nd some associates were very influenced response to watergate, what they perceived as the weakening of executive ford after the administration. what shift in the debate?
> perhaps the role of dick cheney in his stature and administration change. administration, first donald rumsfeld from chicago was president ford's staff and he knew edward levy. general levytorney ford's attention. the deputy was dick cheney. dick cheney's at position on executive power was ny different in the ford administration than approved to be in the george w. bush administration. area, the ce in this exert authority in that environment where there you know, critical
cynicism to be addressed was different. so my guess is, although i don't all find anyat you viewsion in dick cheney's which you will find is that there was a later opportunity to assert them. and in a more absolute way. and different in the attitude levy had and where president ford had in this idea the federal government having three branches engaged in the cooperative, not a competitive or adversarial endeavor. i think, president ford would have said, as edward levy members of congress, the members of the u.s. courts, take the esident all same oath, to see that the constitution's faithfully
executed. share a responsibility one try to interpret the even tution honestly, hough they may have different p perspectives and different institutional interests and work the each other to make institution viable in their ase, the constitution itself you professors can tell me better than i can tell you is a compromise. i know edward levy understood compromisessaw that are going to be required in the future. wasn't like a sporting contest most points for the side view, it served the public. how's the constitution to serve the public. was is an attitude that perhaps rare, although not
and much less rare recently as you say. >> so this is an inspiring we're hearing, ladies and gentlemen, of president ford's nonpartisan the constitution and and nk it's our job, mike mark and the time you have to figure out what changed to make longer at the center of national life and what could be done to resurrect it. 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 judge wolf identified one of them. is a reactionf it to the post-watergate world. series of say that laws as well as traditional opinions as well as arguably the tapes case which a they of people have said think weakened the presidency.
judge kavanaugh said this. how the water -- and the watergate case. extent, to some xtent, i think some people believe he had the developments the people to defend it more vigorously than they ight have felt the need to do so. i think the second thing is always keeping an eye on the relationship between congress and the president. so it is a collegial relationship, rarely? oftentimes the more threatening congress will be there for president. the president will make it harder to find common ground to work with congress. friction there is between the branches, the more each branch, i think, is driven to protect its prerogatives and what we're seeing a lot of in the last couple of days is a lot of
friction. talking about the impeach 789 of president clinton. more impeachments with president obama. we know with george w. bush of love loss a lot between him and the democrats. would let you know how -- to suggest that this friction is alive and alive driving a lot of the relationships between congress and the president when they're it hard to work together. this is a difficulty we've seen itself out with respect to particular laws, for example, the elimination of the is not to some extent overreactions to bstructing judges and protecting prerogatives. you can see, there's a give and take here.
is not and take altogether healthy. that drives a lot of the and driving we see people in the positions that they've got to protect prerogatives. is where are the courts in here. the courts used to be bystanders. he courts used to be on the sidelines for the most part. little these branches either it out, or just fight each other for the draw. i think interestingly enough, let's go back to the famous case. the watergate tapes it's a unanimous decision and one that we take today almost on faith. but it's worth remembering that the imminent constitutional of the time. charles black, yale, gerald uenther, stanford, thought the courts made the mistake getting it involved. counsel for the court to stay out of it and basically believed that it would have been better for out.branches to step
which branch ends up getting ower and which branch ends up losing power? the branch that got power was the supreme court, the the h that lost power are other courts. now we have to take into account where these struggles took place well. and if the court ends up being an arbitor, the other two likely to lose power as a result. > the problem is the legalization of politics. laws require the branches to respond. do you agree? how would you extend the the decline of nonpartisan constitutionalism? >> i guess i would say president watergateleast in the context, is really primarily responsible for this. courts -- the courts decision.about a legal
some people, they were young, the nixon chase case came in in the watergate hearings the congress that president nixon tape recorded the office.ions of the oval there were two subpoenas issued. ne by the congress, one by the watergate special prosecutor. it was thought, president nixon participated in the litigation, it was thought that the district judge, somebody held my current position, john zarinka, would find for the president. claimed executive privilege, the attorney-client privilege, doctor-patient privilege. he never thought he could lose. this is an egregious circumstance. did what archibald cox characterized as unimaginable. he ordered the president to turn
the tapes. and the president forced cox to be fired. he would no longer participate in the litigation. a firestorm. so much public opposition to the president defying the law that appointed a new special prosecutor. he went to the supreme court hoping and probably perhaps win.ting to and the supreme court actually came out with a very limited decision. it enforced the grand jury's subpoena to get evidence of a crime. t didn't enforce the congressional subpoena. in a conventional careful as i very for l to say that if
national security. the presidents not being candid with the american people the cases and the was cautious in but we were hem facing rebellion, if not revolution. people on the streets from vietnam getting murdered in kent state, things that had happened before. frenzy.e was a the power of the executive branch was weakened, although, the two of you could tell better than me at the time of he constitution, it wasn't anticipated that the president or the executive would be the branch.werful the congress was to be expected to be the most powerful branch. history, hout there's -- you know, there's a -- there's an attempt equilibrium
between the executive of usually and the courts are very reluctant to decide a dispute between congress and the president. and i think that's still very much the case. it's unfortunate that this has been generated and lot when changed a robert bourque was not confirmed for the supreme court. began to be ts viewed much more as partisan themselves. is institutions hat might allocate power to themselves and intensified the gets us to this president atmosphere. fascinating.een we need to go to closing statements so we can have mrs. ford's excellent chocolate chip cookies. o i'm going to ask you to take
about a minute each to tell me is the one thing that you think structurally should be one of nonpartisan constitutionalism. >> well, far be it for me to chip the chocolate cookies. i better not take my full some of it. take i think that following the path chose to follow with regards to the department of justice is an obvious thing to consider. i think having somebody's attorney general who is not just omebody you know, but somebody who has sort of a universally ct nothinged sort of integrity and level of commitment to certain principle would be a great thing. not overly ng to politicize from justice is not doable either. seeing every administration, democrat and republican, absorbing power to
house.ite we have so many czars in the white house right now who essentially oversee what the departments do. and therefore duplicate to some extent or overrule as another. may not be a good development. because what it means is that white house is absorbed and share it which is something that he did. a -- it's a good recipe for a healthier system. >> thank you so much. mark, what's your one-minute resurrecting for nonpartisanship for president ford? >> not a recommendation. i would hate to live through the crisis of vietnam and watergate again. i think in the present climate we need another elected president. the kind of things that we're tremendous s a tribute to president gerald ford. he came in to office without a olitical mandate, without the
vote of the american people. i would challenge anybody to field a team of cabinet members the vice president nelson rockefeller like the all stars he brought in. he brings in governor leadingler who had been contender from the liberal republican wing to be president as vice ited states, president. many presidents would feel threatened by somebody of that stature. the secretary of state was henry kissinger. the secretary of transportation brilliant lawyer, william coleman, the first african-american clerk on the supreme court. dunlop from m.i.t., the ecretary of harvard, the secretary of labor, elliott richardson came back to the commerce department. h.u.d.ills at nd this was, i think, a testament to a quality that i have not seen in presidents
since and known a couple of them. going back many years. which is humility. i think our government was formidable men at the time who had a great sense of humility. the first amendment, which promises religious freedom, recognize the diversity of opinion. any of the founders were men.utly religious but they also understood and respected people with different with if they held them integrity. president ford shared those qualities. there were good people in congress and the executive branch didn't have a monopoly on country would be better served if there was a collaborative process. founded attorney general who had a sophisticated
powertanding of executive and would not let it be hijacked time, it wanted t disciplined and the parameters of that power he recognized could be affected by and maybe favorably so. i think gerald ford really a great president. he had a short tenure. he deserves to be remembered. implicitly, you remembered him, of ael, by leaving him out the book. and i met -- although, i'm not a prophet. the time will come when his studied ation will be as a model to which we'd like to try to return. beautifully said, we've learned in this discussion that president ford had a distinctive
vision, it was based on nonpartisanship. in that sense, i cannot managen conference for the national constitution center with our nonpartisan mandate han to celebrate and mark the constitutional legacy of president ford, let us have our chocolate chip cookies, minutes. in 15 please join me in thanking our panel. [ applause ] >> you are watching "american history tv". forty-eight hours of american every y programming weekend on c-span3. make sure to visit our website to keep up with the latest history news. us tonight, as john lewis received an award. during the 1960's civil rights movement, he served as the the nonviolent
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