“And I don’t ever want to call a court biased, so I won’t call it biased… But courts seem to be so political, and it would be so great if our justice system—if they would be able to read a statement and do what’s right.”
—Donald Trump, February 8, 2017
“There are many people that want to break up the Ninth Circuit….What’s going on in the Ninth Circuit is a shame.”
—Donald Trump, April 26, 2017
The least interesting news cycle of the Trump Era so far revolved around Neil Gorsuch’s admission that the president’s attacks on a federal judge were “demoralizing” and “disheartening.” Considering all the groups Trump has bullied, federal judges don’t seem worth my outrage. Their morale and their hearts will be just fine.
It is more concerning, but not much more, that Trump doesn’t seem to believe in, or possibly even understand, the separation of powers. The “if the courts don’t do what’s right they need to be broken up” doctrine smacks of fascism, but it’s standard fare for frustrated presidents.
FDR tried (and failed) to pack the Supreme Court—that is, appoint a bunch of extra justices to dilute the strength of the ones who kept blocking his New Deal programs, like a novice coffee drinker stirring in sugar until he can’t taste the bitterness. In 1969, newly elected President Nixon faced FDR’s problem in reverse: a Court with a liberal majority dead-set against pretty much everything he wanted to do. Since FDR’s convoluted attempt at subtraction by addition hadn’t worked, Nixon tried just plain subtraction—picking off justices he didn’t like one by one.
Abe Fortas resigned in the shadow of financial dealings that weren’t all that shady in the scheme of things, but shady enough. Then Nixon set his sights on William O. Douglas, the Court’s iconic liberal. He asked his attorney general (who went to jail) to start gathering dirt on Douglas and eventually ordered his top aide (who went to jail) to “talk to Jerry Ford now” and get him to “move to impeach” Douglas.
He built his career and life on avoiding offending anyone. Richard Reeves on Gerald Ford
And so it was that Congressman Gerald Ford of Michigan became Nixon’s hatchet man, and he seemed to relish the assignment. As president five years later, Ford epitomized decency and brought our politics back from the Watergate void. But he devoted the year 1970 to smearing a justice so a crook could subvert judicial independence.
On April 15, Ford took the floor of the House, leveled a flurry of accusations against Douglas, and called for impeachment. The charges ranged from weak to vanishing to ridiculous.
Weak: Douglas received $12,000 per year for serving on the board of the Parvin Foundation, funded by a Las Vegas businessman who, in Ford’s melodramatic telling, palled around with Bugsy Siegel and Meyer Lansky. In fact, his company provided the furnishings for the Flamingo Hotel. Douglas should have been more careful about whose payroll he got himself put on—and it’s probably not a great idea for a sitting judge to accept a sinecure in any case—but there is no evidence that Douglas lifted a finger to help “the international gambling fraternity.”
Vanishing: Douglas didn’t disqualify himself from an obscenity case against Ralph Ginzburg, the publisher of a magazine called Eros, even though another one of Ginzburg’s magazines had paid Douglas $350 for an article on…wait for it…folk singing. Other articles in the issue were given headlines “so vulgarly playing on double meaning that [Ford would] not repeat them aloud.” Ford was quick to point out that while the folk-singing article itself was not “pornographic,” it praised “the lusty, lurid, and risqué along with the social protest of leftwing folk singers.”
Ridiculous: Douglas’s book Points of Rebellion, published in 1969, advocated the overthrow of the government. First of all, there is a First Amendment. Second, Douglas responded that if the book actually argued in favor of treason, as Ford claimed, he’d “eat it without mayonnaise or anything.” Having read as much of Points of Rebellion as I can stand (Ford was right to call it “drivel” even if it wasn’t a “distorted diatribe”), I am comfortable making the same promise (though, as a Jew, I wouldn’t have put mayonnaise on it anyway).
Ford got particularly exercised because an excerpt from Points of Rebellion had appeared in a magazine that ran photographs “more shocking than the postcards that used to be sold in the back alleys of Paris and Panama City,” which kind of makes you wonder what Ford was doing in those back alleys. The “hardcore pornography” magazine that shocked him was actually a literary journal, Evergreen, specializing in Beat poetry.
Most historians who study Ford wonder why he went on this embarrassing wild goose chase so out of step with the rest of his career. But Ford’s obsession with “magazines not commonly found on the family coffee table” hints at why this normally civil, conciliatory man lost his bearings. Douglas, a libertine, offended Ford’s Michigander sensibilities. People in Grand Rapids didn’t write articles about folk songs. Or, if they did, they didn’t publish them in magazines called Avant Garde. They also didn’t have a fourth wife with a 46-year age difference. (The rule of thumb is half-your-age-plus-seven, but Douglas failed even by the more forgiving half-your-age-minus-seven standard.) Gerald Ford’s excuse for lapsing into indecency was what he perceived as Douglas’s indecency.
In fact, Douglas was an abominable human being, but not for the stupid reasons Ford catalogued. For starters, he was a mean son of a bitch who demeaned his underlings, especially women, for fun. He once gave one of his secretaries the silent treatment for two months, during which time he ordered her colleague to “tell the other one what she has to do.” More seriously, he committed sexual assault as a matter of course. There is a story in my family that Douglas tried to look up my mom’s miniskirt when she was observing oral arguments in 1968; it’s always been told for laughs, so I was surprised and upset this week when I read about all the women Douglas attacked: stewardesses he invited to see him in chambers, journalists interviewing him, his wives. “He may have been a great public servant,” said one employee, “but he wasn’t a great man.”
Ford knew his case wasn’t good enough, so—to use one of the football metaphors the former Michigan Wolverine letterman was so fond of—he tried to move the goalposts. Because the Constitution says that judges “shall hold their offices during periods of good behaviour,” he argued that bad behavior was reason enough to remove them from office. In fact, he defined “an impeachable offense” as “whatever offense or offenses two-thirds of [the Senate] considers to be sufficiently serious.” In other words, forget about high crimes and misdemeanors, or even low ones; you can impeach a judge on any pretext whatsoever as long as you’ve got the votes. Cue lecture about judicial independence and separation of powers.
Naturally, there must be orderly procedure for determining whether or not a federal judge’s behavior is good. The courts, arbiters in most such questions of judgment, cannot judge themselves. So the Founding Fathers vested this ultimate power where the ultimate sovereignty of our system is most directly reflected—in the Congress. Gerald Ford
By the summer of 1970, Douglas was subject to three different investigations: Nixon’s, via the Justice Department; Ford’s, via his Congressional staff; and Congress’s, via the House Judiciary Committee. None was going anywhere. Nixon’s people complained that Ford “blew it” by making accusations based on “raw information” with “nothing to back it up.” In his memoirs, Ford whined that the attorney general “promised cooperation and then went back on his word.” The chairman of the Judiciary Committee blamed the administration for “delays and obstructions” that “hampered” his progress. Basically, each player in the drama kept waiting for the others to produce the smoking gun, but there was no gun and no smoke (and no fire, to switch metaphors).
Finally, in December, the committee issued a 924-page report and determined that there was nothing in it to warrant impeachment proceedings. Gerald Ford called it a “whitewash,” then tried never to speak of the humiliation again.
In 1973, Nixon’s vice president resigned (he pled no contest to a bribery charge), and Ford replaced him just in time to replace Nixon when he resigned. Douglas finally retired during Ford’s two years in office, and Ford appointed the eminently fair and balanced John Paul Stevens to fill the post. Watergate shamed a president into acting momentarily as if the Court were not subordinate to politics. As the refusal to hold hearings on Merrick Garland proves, we’re long past that respite.
Attacking judges and the judiciary has been the national pastime for longer than baseball. It’s their very separation from the democratic process that makes them such appealing targets. If court bashing can turn a genial man like Gerald Ford into a rabid lunatic, it’s no surprise that Trump is foaming at the mouth about every judge who spikes one of his dumb executive orders. But only one justice has been impeached (in 1805), and none convicted. If Trump makes any headway on his threat to break up the Ninth Circuit, I’ll print this essay out and, to paraphrase that asshole William O. Douglas, eat it without Gulden’s mustard or anything.
Ford’s job in life was to escort the country away from Watergate. In history, he is lashed to it. The vast majority of the scholarship about him is Nixon/Watergate related. He comes off as an effective but ancillary figure. Douglas Brinkley did a nice job with the Ford entry in the American Presidents Series, but his full-length biography, An Honorable Life by James and Scott Cannon, is just OK. Biographies are always somewhat adoring, but this one verges on pathological homerism. Not so the Douglas biography, Wild Bill by Bruce Murphy, which is what you might call unstinting. Both Ford and Douglas wrote autobiographies that you really need to be dedicated to read. The best stuff I consulted were primary sources available through the Gerald Ford presidential library’s website. It’s awesome that they make that stuff available. It’s less awesome that the secondary sources aren’t more interesting.