A Long, Strange Trip: The Nomination and Confirmation of Justice Harry A. Blackmun - 4
The Context of Appointment: Nixon’s Goals and Problems
Richard Nixon grounded his run for the presidency in 1968 on an appeal to what he thought to be
disaffected elements of the old Democratic/FDR coalition. Usually dubbed “The Southern Strategy,”
Nixon’s goal was to peel off southern white democrats and restructure the national electoral landscape. In
that election, he had to compete with the overtly racial messages coming out of the Wallace camp, but he
was able to eat into the once solid south stressing themes of “law and order,” the “silent majority,” and
caution on civil rights. (White, 1969)
One effective tool in leveraging these themes was attacking the Warren Court. On the campaign
trail, Nixon often did this by speaking to the qualifications he would seek in his potential nominees to the
Court.
Among their qualifications I would consider would be experience or great knowledge in the field
of criminal justice, and an understanding of the role some of the decisions of the high court have
played in weakening the peace forces in our society in recent years.… They would be strict
constructionists who saw their duty as interpreting law and not making law. They would see
themselves as caretakers of the Constitution and servants of the people, not super-legislators with
a free hand to impose their social and political viewpoints upon the American people. (New York
Times, 3 November 1968)
This theme played well with exactly the constituencies Nixon sought to capture electorally, and he
returned to it frequently. In fact, he came close to laying the break-down of “law and order” directly at
the door of the Supreme Court.
From the point of view of the criminal forces, the cumulative impact of these decisions has been
to set free patently guilty individuals on the basis of legal technicalities. The tragic lesson of
guilty men walking free from hundreds of courtrooms across the country has not been lost on the
criminal community. (quoted in Simon, 1973:7)
Once in office, and presented with the opportunity to nominate candidates for confirmation, he
continued playing the political/legal angle. At a press conference announcing the nomination of Warren
Burger to be the new Chief Justice, he said
That [Felix Frankfurter] is the kind of judge I was looking for…. I am not concerned about
whether the man is a liberal or conservative in his economic or social philosophy. My interest is
how does he regard his role with regard to the Constitution. I happen to believe that the
Constitution should be strictly interpreted. (quoted in Levy, 1974:14)
This notion of “strict scrutiny” had political potency: “The phrase appealed to the conservatives and the
Convention