Sunday, December 07, 2008

Revisionist History Lesson: Mauro on the Nixon Library Releases Tape of Nixon-Burger Phone Call

When I was in College, I had a Professor named Parkman. He was a phenomenal teacher. Right out of central casting. He could just as well have been at the Louisiana Purchase as written about it. He had to be 115 years old (or so it seemed to me as an 18 year old Freshman).

Anyway Professor Parkman wasn't one to get excited about much. The one thing he was excited about however were the "Revisionists". A "Revisionist" was someone who looked at history but through the light of how he wanted it to be and not report it in the light it was created. (check out Wikipedia's links for a more complete look at "revisionism" both positive and negative)

I can hear Parkman "railing" as I read this post on the release of a taped conversation between President Richard Nixon and then SCOTUS Chief Justice Warren Burger (who Nixon appointed to the high court as CJ.) It seems that Tony Mauro could not help but to express that Nixon and Burger were engaged in a conversation that would be "frowned upon". They were discussing the Miller v. California 413 U.S. 15 (1973) case which set up the "community standards test" for obscenity.

In fact, not until after Watergate would it be frowned upon. At the time of the phone call, both men led separate branches of our government. It was not even "frowned" upon for POTUS prior to President Ford to speak to SCOTUS Justices, especially the Chief Judge, for opinions about how certain initiatives would fair if brought before the court.

Listen to the conversation, it doesn't seek to nail Burger down on the issue although Burger himself opines that he is "coming down hard on it". It is a general conversation about the work that the judicial branch is involved in. Nixon being a lawyer, and a bit of a gossip, wanted to talk shop with a colleague. He had worked with Burger during the campaign in 1952 and was there when he was appointed by President Eisenhower to the bench. Nixon elevated him to the Chief Judge's spot. Is it hard to believe that they had a professional friendship? Nixon had argued a first Amendment case in 1966 before the SCOTUS. It was an area of law both men felt was important from an academic as well as a political point.

After Watergate, the court took on a more important role in everyday politics, hitting what I hope was its zenith in Bush v. Gore. Until then the Court generally stayed above the political fray though individual justices were always political beings. I agree that for better or worse, this type of conversation would be frowned upon. I am of the opinion it is for the worse. Nevertheless, to place 21st century mores on a 20th century conversation and suggest something nefarious where such conversation was de rigeur strikes me as not only unfair, but dare I say..."Revisionist".

By the way I think it is interesting that Ron Howard's Frost Nixon(link is for the trailer) is coming out this month. I have no idea what to expect, but I cannot wait to see it.

Hattip: Law.Com

PS Thanks to the Nixon Library for a link to the tape and to Findlaw for the Miller case, and LII for the link to Bush v. Gore.
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