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Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences.

Nixon's Court: His Challenge to Judicial Liberalism and Its Political Consequences. By Kevin J. McMahon. Chicago: University of Chicago Press, 2011. 343 pp.

Nixon's Court challenges the widely repeated assertion that through his judicial appointments, Richard Nixon waged an all-out, ideological attack on the Warren Court but ultimately failed to move the Court as far to the right as he had hoped. Kevin McMahon argues instead that Nixon never intended to undo most of the liberal jurisprudence of the Warren Court and only hoped to exploit strains in the Democratic coalition for his own electoral gain. Nixon's primary goal, McMahon argues, was not to shape judicial doctrine but to build an electoral coalition capable of sending him to, and keeping him in, the White House. According to McMahon, then, Nixon was not an ideologue, but rather, a pragmatist, viewing his judicial nominees primarily as signals to his voters and potential voters, rather than as chess pieces in a game of Supreme Court decision making. The implication of McMahon's account is that the success of Nixon's judicial appointments is best measured in Nixon's own terms, based on Nixon's ability to reshape the American electorate, rather than to reverse the rulings of the Warren Court, and that Nixon succeeded in using his Supreme Court appointments to craft a new and winning Republican coalition.

Nixon's Court challenges the conventional wisdom in part by directing our focus away from Nixon's rhetoric to archival sources such as administration memos and recorded conversations. These less visible presidential records make it clear that Nixon's personal views on Supreme Court policy or even on the competence and ability of his potential nominees were remarkably insignificant in his nomination choices. While Nixon believed that his nominees had to be acceptably conservative, McMahon demonstrates that Nixon's definition of "conservative" was both very broad and quite shallow, leaving as much room as possible for Nixon to identify nominees who could be electorally useful to him.

Thus, McMahon argues, Nixon's "Southern strategy" has been vastly oversimplified as exclusively Southern and segregationist. Nixon was not merely interested in picking up votes in the South, but in forging a broad-based national electoral coalition. Nixon carefully attempted to "peel off' racial conservatives in both the North and South from the Democratic coalition without alienating his moderate supporters. Thus, his electoral coalition depended on his being seen neither to support desegregation nor to oppose it. As a result, Nixon did not wage a full-scale campaign to roll back the existing advances in civil rights. Instead, he made it as clear as possible that the entire matter was in the hands of the Supreme Court, at the same time that he appointed relatively conservative justices and that he enforced the Warren Court's rulings.

Through this account of Nixon, McMahon illustrates that it is possible to make political gains by publicizing judicial losses. It is clear that social movements and interest groups can use high-profile defeats in court to dramatize their positions, generating outrage and building support for their own causes (Nejaime, "Winning Through Losing," Iowa Law Review [2011, pp. 941-1011]). McMahon shows us that presidents can employ a similar strategy. Nixon, McMahon explains, staked out a rhetorical position in opposition to the Warren Court's progressive rulings, while being "forced" to do what it told him, maintaining his electoral coalition by saying what the more conservative wing wanted to hear, while doing what the more progressive wing wanted to happen. This account of Nixon's relationship to the Court offers an interesting variant on what Mark Graber has called the nonmajoritarian difficulty ("The Non-Majoritarian Problem: Legislative Deference to the Judiciary," Studies in American Political Development [Spring 1993, pp. 35-73]), and George Lovell has termed legislative deferral (Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American Democracy [Cambridge University Press, 2003]). Graber and Lovell have established that when a political party or electoral coalition faces an internally divisive policy question, it is more than happy to leave that issue to the courts, to avoid the need to take a position, and to deny responsibility for the outcome. Nixon's Court advances this literature by demonstrating that regimes can use the Supreme Court not only to avoid the issues that threaten to divide their own coalitions, but also to leverage the issues that threaten their opponents' alliance to destroy an existing electoral coalition and to forge a new one.

One of the greatest strengths of Nixon's Court is that it blends an institutional account of the presidency with a careful look at the particular strategies and innovations of a single president. McMahon shows that Nixon's most proximate (and therefore most prominent) goal was to get elected and then reelected, and that we need to interpret his actions primarily in light of his electoral environment, the incentives it supplied, and the constraints it imposed. At the same time, Nixon's own particular assessment of the constraints and opportunities he faced were, of course, central in determining his responses. Nixon's Court does a remarkable job of blending both levels of analysis, describing the origins of Nixon's own convictions and innovations, while offering generalizable and valuable insights about the relationship between the judiciary and the presidency.

--Emily Zackin

Hunter College, CUNY
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Author:Zackin, Emily
Publication:Presidential Studies Quarterly
Article Type:Book review
Date:Dec 1, 2012
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