Commentary: Gerald Ford’s impact on the Court
on Dec 27, 2006 at 4:05 pm
Gerald R. Ford’s legacy, now being reassessed in the wake of his death Tuesday night, will be measured many ways. Of course, much is being made of his decision as President to pardon former President Richard M. Nixon for the crimes of the Watergate scandal; historians may well mark that as his most consequential act. But the time has not yet arrived for historians to make their judgment about another impact of his public service — his influence on the Supreme Court. That is history that is still being made.
His one appointee to the Supreme Court, Justice John Paul Stevens, this month completed his 31st year on the Court and remains a dominant figure — perhaps the most important voice there on the grave constitutional issues still unfolding on presidential powers in wartime. At age 86, Stevens shows no signs of tiring of the Court’s work, or of thinking seriously about retirement. (Stevens did not mention Ford’s role in his appointment in a statement on Wednesday honoring Ford; that statement can be found here.) To Ford’s credit, the selection of Stevens for the Court was widely regarded at the time as a choice made primarily upon merit, rather than political advantage — an example that subsequent presidents have not routinely followed.
Ford’s reputation for kindly, gracious gestures — a model that all presidents should want to emulate — can be seen in his warm letter to Justice William O Douglas when Douglas retired from the Court in 1975 — creating the vacancy that Stevens would fill. Ford’s letter to Douglas can be found here. The letter is all the more remarkable in that it was written just five years after Ford, as the House Republican leader, had led an unsuccessful and arguably misguided effort in Congress to impeach Douglas for ties to a foundation that was funded in part by money from gambling casinos.
Ford’s effort to remove Douglas from the Court was widely interpreted as a blatant political maneuver to retaliate for the Senate’s rejection of two Richard Nixon nominees to the Supreme Court. As a result, that episode is not considered one of Ford’s high moments of public service; it has added a modest measure of instability to the concept of life tenure on the Court, when a Justice becomes a political target.
But Ford also made lasting history in that campaign: he gave the nation, and history, an open-ended definition of what constitutes misbehavior in federal office that could justify impeachment. In a speech on the House floor on April 15, 1970, Ford asked the question: “What, then, is an impeachable offense?” His response: “The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office.” (The text of that speech can be found at the website of the Ford Presidential Library, here, under Selected Documents/Pre-Presidential Speeches.)
Depending upon how a particular majority in a particular House of Representatives would use that definition, it may well be an invitation to mischief. With no objective standards to guide political judgment, the impeachment power could, in a given circumstance, turn out to be reckless. It has become, perhaps as a direct result of Ford’s formulation, an inexpensive political gesture for members of Congress to call for the impeachment of Supreme Court Justices whose decisions do not meet with political favor. That, too, is part of the Ford legacy.
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Joseph Thai, an associate professor at the University of Oklahoma College of Law, writes the following:
I thought you (and perhaps your readers) might be interested in a letter President Ford wrote last year to Dean Treanor of Fordham law school, which was presented to Justice Stevens by the Dean and former law clerks at the conference on Stevens’ jurisprudence celebrating his 30th year on the Court. Notably, in the letter, President Ford writes: “I am prepared to allow history’s judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court.â€
The letter can be found at http://law.fordham.edu/newsfiles/news-ford.pdf
And more background on the letter can be found at http://law.fordham.edu/ihtml/news-2details.ihtml?id=612&nid=199
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Further regarding the Ford letter, see this story by Jess Bravin of The Wall Street Journal:
http://blogs.wsj.com/washwire/2006/12/27/ford-and-the-court/
