The Campaign to Impeach Justice William O. Douglas by Joshua E. Kastenberg

9780700628483

One of the most powerful politicians in the United States. One with a sordid personal life replete with multiple marriages and affairs and questionable financial dealings. One who regularly violated the norms and mores of his office with his outspokenness. One abhorred by his critics, but loved by his followers. One brought before the House of Representatives in a strictly partisan manner on impeachment charges.

Donald Trump? No—in this case, it’s the late U.S. Supreme Court Justice William O. Douglas. And the impeachment attempt came in 1970 during the Vietnam War.

Joshua Kastenberg, a retired Air Force officer and professor of law at the University of New Mexico, explores the 1970 Justice Douglas impeachment attempt in The Campaign to Impeach Justice William O. Douglas: Nixon, Vietnam, and the Conservative Attack on Judicial Independence (University Press of Kansas, 336 pp., $42.50, hardcover and e book). This well-researched and accessible book is the first in-depth account of this episode. In it, Kastenberg proffers a timely reflection on the political and constitutional implications of impeachment.

In the spring of 1970, Michigan Republican Rep. Gerald Ford, at the behest of the Nixon White House, called an impeachment investigation into Justice Douglas based on allegations of financial impropriety, the undermining of national security, and violations of judicial ethics. The House embarked on a six-month investigation that ultimately cleared Douglas.

A vote was never taken, and the proceedings never captured the public’s imagination. Tepid news coverage faulted Douglas for undermining his credibility, but also criticized Ford and Nixon for an unnecessarily malicious attack on his the justice’s integrity.

Kastenberg expertly details the players, the alliances, and the political machinations that compromised these events. In 1969, at risk of impeachment due to his financial ties to a dubious foundation, Douglas protégé Justice Abe Fortas resigned from the Court. The Senate rejected two Nixon picks to fill the Fortas seat, Clement Haynsworth and G. Harold Carswell, both Southerners with troubling Civil Rights records. Conservatives in Congress turned their enmity to a Douglas, a liberal, unconventional, and outspoken critic of the Vietnam War whom they had previously threatened with impeachment three times.

Kastenberg’s thesis rests on the context of the impeachment allegation. Two weeks after Ford’s allegations, U.S. and South Vietnamese troops moved into neutral Cambodia, sparking outage and protests. Kastenberg posits that the Douglas impeachment was meant to be a public distraction from the invasion. If the incursion went poorly, Douglas would be an ideal scapegoat. Further, Kastenberg writes that Ford’s allegations were a “threat to the efficacy of the nation’s constitutional institutions,” mainly the sanctity of judicial independence.

But Kastenberg does not adequately proved a direct link existed between the impeachment and the Cambodian incursion. He also describes the other reasons for the impeachment as nefarious, but they may be best categorized as politically distasteful: conservatives’ abhorrence of Douglas, a desire to reverse the changes of the Warren Court, and a need to protect Nixon’s policies.

Kastenberg does show that Douglas was in many ways his own worst enemy, providing his opponents with multiple reasons to impugn him. The Constitution does not explicitly state that federal judges serve for life, but that “they shall hold their offices during good Behavior.” While Ford was incorrect when he stated that impeachment is solely a political—not constitutional—process, the two are not, as Alexander Hamilton pointed out, mutually exclusive.

Impeachment is the only mechanism in which the powerful can be held to account. Kastenberg misses the irony that Douglas, at times contemptuous of stare decisis, relied on the history and rarity of judicial impeachment as his primary defense.

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Prof. Kastenberg

In the end, Kastenberg’s charges of Ford and Nixon endangering constitutional institutions and American democracy itself are hyperbolic because the system worked, and the case was quietly dismissed.

Nevertheless, this is an important, provocative, and meticulous book, a welcome addition to the history of the Court—and of contemporary America.

Daniel R. Hart