>> Ryan Reft: I am
joined by my partner
in booktalk [Inaudible]
Connie Cartledge,
Senior Archive Specialist in
the Manuscript Division of the
Library of Congress.
She is a co-author,
with myself,
of Richard Nixons
Political Scandal:
Researching Watergate in the
Manuscript Division Collections
at the Library of Congress
and The Federal Paper Chase:
Judges' Papers in the
Manuscript Division
which I will say that Professor
Kastenberg has drawn upon,
not necessarily the
LibGuide itself, but the
collections described in the
LibGuide for the book that he is
discussing today. During her
illustrious career, Connie has
processed many legal journalism
and political collections,
including the papers of Harry A.
Blackmun, arguably the greatest
Scotus collection ever.
Gerhard Alden Gesell, arguably
the greatest district court
judge collection ever.
Frank M Johnson, Harold
Leventhal, Anthony Lewis.
Need I even say it?
Thurgood Marshall, Mary
McGrory, Daniel P. Moynihan,
Sandra Day O'Connor,
John J. Sirica,
John Paul Stevens,
and J. Skelly Wright.
I am Ryan Reft. As noted, I
focus on 20th century policy and
domestic politics,
which includes law,
which is why I'm here.
Professor Joshua Kastenberg,
a regular in our reading room
who has written many,
many books of legal history,
has a 20 year career as a
lawyer judge in the Air Force.
He served as an advisor
to the Department of Defense on
cybersecurity and cyber warfare
matters, twice deployed to Iraq,
and oversaw the military's
compliance with international
law. Professor Kastenberg
served as prosecutor and defense
counsel in more than 200
trials, and as a judge in
more than 200 other trials.
He has been cited by The
Washington Post and appeared on
the BBC, the CBC, NBC,
SCTV and Fox News.
Kastenberg's media experience
adds to his effectiveness in
drawing an audience and in
presenting remarks in an
engaging manner, and we are
about to engage everyone,
as Professor Kastenberg is going
to give us an overview of the
book, to be followed by a little
Q and A with Connie and I,
and then hopefully questions
from the audience.
So take it away, Professor
Kastenberg.
>> Joshua Kastenberg:
Thank you so much.
And first off, I want to say
thank you to the members of the
Manuscript Division of the
Library of Congress.
You perform what I think is
the platinum standard of public
service of preserving the
history of our nation in its
deepest forms, including the
motivations and other
matters that are so important
to preserving democracy.
I also want to thank the
University Press of Kansas, and
in particular, David Congdon,
who served as my editor for two
books and has displayed
a remarkable degree of
professionalism and
patience with me.
And with that, I'd like to
begin with taking us back to
1978, 1979 and the complexities
of the world we live through
at that time, which rival
today's complexities even in an
era of social media.
But before I do, I think it's
important at the outset to say
what this book and the case of
Goldwater versus Carter that
goes to the Supreme Court and
the Supreme Court does not issue
an opinion, but
rather issues an order.
And I'll get into that is all
about and it's about
constitutional silence.
And what the other two
branches of government, the
executive branch and the
legislative branch, may or may
not be able to do in an arena
of constitutional silence, the
United States Constitution
clearly states how
the United States
gets into a treaty.
There are two players
and two players only.
One is the president
and the other
is the United States Senate.
It doesn't even include
the House of Representatives.
The framers of the Constitution
believed this was sufficient for
the United States to go
into a binding treaty.
Requires two thirds of the
senators present, and once the
country is in a treaty,
treaties become the law of the
land, with the exception of
this doctrine that formed
significantly after the
Constitution about whether
treaties were self
implementing or not.
But the United States
Constitution says nothing about
removal from a treaty, and it
appears that the framers of the
Constitution believed that the
United States would be governed
by gentlemen of, you know,
ethical strains, and a treaty
would be like a handshake.
It would be the
George Washington View.
That would be something
that we would keep.
And in the early history of
the United States, when the
United States was removed
from a treaty, it's because the
country the United States,
signed into a treaty with no
longer existed or
governments changed.
And the classic example is the
United States had a treaty with
the Netherlands, and then along
comes Napoleon, and Napoleon
installs his younger brother as
sort of the monarch of the
or the Emperor
of the Netherlands
and the government of
the Netherlands collapses,
and the United States is thereby
removed from that treaty.
Because the government of the
Netherlands had collapsed,
it no longer existed.
And that's what this case
begins with in 1978.
In December of 1978, after the
Chinese premier Deng Xiaoping
came to the United States,
President Carter announced the
United States would remove
itself from the Mutual Defense
Treaty with the Republic of
China, a country today we refer
to as Taiwan.
That treaty came about in 1954,
and we would recognize the
People's Republic of
China as the one China.
Now, that wasn't unique in the
sense that the British, the
French, the West Germans, the
Canadians had already done that
and also was part of a process
that President Richard Nixon
began when he
visited China in 1972.
But there were old stalwarts in
the United States Congress who
argued that the president first
had to have approval of either
the Senate or the Congress
as a whole to remove
the United States from
such an important treaty.
They were led by Senator Barry
Goldwater, a Republican from
Arizona, who presciently
argued, although he was laughed
at for this argument,
if a president can remove
the United States from a treaty
with the Republic of China today
without the consent of Congress,
then nothing will stop a future
president from removing
the United States from NATO.
And that was the basis of his
argument going in.
Goldwater was not a lawyer.
He was not a constitutional
scholar, but he was a hard core
conservative who believed that
the People's Republic of China
could not be negotiated with,
and that it presented a danger
equal to or one day would be
equal to the Soviet Union.
So he dug his heels and
formed a unique alliance to
challenge Carter on
Carter's unilateral action.
If I could get the next slide...
Well, let's take a look at the
world of the 1970s.
When we talk about chaos,
and I mentioned this to my
students who are in their
mid 20s, they have a tendency
to look back and think things
existed in a simpler
time, but they didn't.
For those of us who were
alive and remember this
in the 1970s, the early 70s,
the entire Penn
Central Railroad,
which was really almost all of
the railroads of the northeast
that had been combined
into one, went bankrupt.
And that caused an economic
ripple effect through the entire
nation. It occurred at the same
time as the oil crisis of 1973,
and the steel meltdown of
1973 to 1975, when cities like
Youngstown, Ohio, had gone from
almost full employment to full
unemployment. At the same time,
Americans were doubling and
tripling their gas payments,
not only at the pumps, both in
1973 and again in 1979.
Because of wars in the Middle
East and the emergence of OPEC
as a global political power.
But home heating oil became too
expensive for Americans to
suffer to pay
through in the Midwest
and in the North in the
United States government, among
Americans coming out of the
Vietnam War and a number of
congressional
[Inaudible]
I would say the Church
Committee investigation into the
CIA and the FBI, beginning in
1974, and significant reforms
which were important for the
country, but which may have
weakened American intelligence
capabilities in the years after.
And finally, and this is one
thing I drive home to the
students. There were
significant economic
disagreements with the United
States as NATO partners in
Western Europe over trade and
finance, and we were practically
on the point of a fiscal war
with Britain, France
and West Germany over the
valuation of the Deutsche Mark,
the franc, the pound,
tariffs on steel importation,
the very thing the United
States was struggling with.
They were, too.
And it looked like NATO was
getting frayed over economic
disagreements as well.
And if I can get the next
slide, this will continue.
The 1970s were hardly
a time of peace.
Just because the United States
exits Vietnam in 1979
doesn't mean that
war's end in the world.
In fact, they get
bloodier and bloodier.
And governments in the
democratic countries are afraid
as well. We tend to look at the
government of Japan as being a
bulwark of democracy, and for
the most part, they are a model
of democracy and efficiency.
But in 1976, the Japanese
leadership took payoffs from
Lockheed as well as the West
German defense minister.
This resulted in indictments
being handed down in Japan
against their
president and others.
The Japanese democracy was sort
of teetering for a brief time
on this. India and Pakistan go
to war and deaths occur by the
tens of thousands. In Nigeria,
there's a breakaway republic in
Biafra, and there's a practical
genocide that's occurring there.
And Richard Nixon and the
United States government,
understanding the population
is sick of war, does very little
except appoints a professor of
law to be the ambassador to
Biafra. And it falls
to organizations like
the Beatles Rock band to bring a
public awareness on human
disaster that's going on there.
Similarly, the Ethiopian Civil
War, the Israeli Arab War of
1973 known as the Yom Kippur
War, and the Angolan Civil War,
in which the Congress steps in
and tells President Gerald Ford,
"You will not spend
a cent in Angola.
Unless we approve that
cent being spent in Angola."
There was a belief that
Angola could become a new
Vietnam, as the Soviet Union
and China became more involved
in that civil war.
So if I can get the
next slide to, please.
For the United States, by 1978,
the war in Vietnam still rippled
through the United
States political system.
There was a terrific loss or
an unfortunate loss of trust.
Very understandable.
And our government, our
government's ability to react to
foreign affairs, to domestic
crises, the US, USSR dynamic of
a bipolar world kind of
remained in the forefront of our
political leaders at that time.
But there were new fissures
that added to the world chaos.
Portugal almost fell to
communism in 1974, 1973 to 75,
our NATO ally, and Greece
was under a military
dictatorship. And then, crazily
enough, in 1974, two NATO allies
without the influence of the
Soviet Union, practically go to
war over Cyprus in a
very complex matter.
And Congress is split not by
party alignment, but by whose
district may have had a number
of Greek Americans in it, and
whose district didn't over what
the NATO response should be.
There were two congressional
vetoes over
President Ford's efforts to do
something militarily and
fiscally in regard to stopping
this war from breaking out and
causing a, you know, a breakup
of at least two NATO countries.
If I could get the next slide,
please.
There's another aspect of
Carter's actions towards
recognizing the People's
Republic of China that make it
important to note this was not
uniquely Jimmy Carter,
particularly in light of the
fact that President Jimmy
Carter's commitment to human
rights was more pronounced,
I would argue, than any other
president in United States
history, at least since the end
of World War II, if not for all
time. But the China Soviet ref
presented Richard Nixon,
Gerald Ford, Jimmy Carter with
a unique way of bringing
stability to U.S.
foreign policy.
Nixon and Kissinger
called it triangulation.
Carter called it stability.
In 1969, China and Russia,
their militaries, exchanged
gunfire over their border in
the midst of the Vietnam War,
where both countries were
supporting North Vietnam.
Although the Soviet support was
far more pronounced.
In 1971, Henry Kissinger
travels to the
People's Republic of
China rather quietly.
It sets up a meeting
the next year for
Richard Nixon to do the
same thing Nixon, an old
anti-Communist stalwart.
It's often been said
only Nixon could do it.
And he did it. In 1972,
in February, the Shanghai
communique was signed.
And basically, that's the road
to the United States recognizing
the People's Republic of China
and trying to engage in more
connected economics, more
connected understandings with
the People's Republic of China
to bring stability to a chaotic
world. I could get
the next slide, please.
Just really quickly
taking a look at Carter.
And I'm not a psychoanalyst and
I'm not particularly aficianado
of psychological histories,
but Carter was unique
as presidents go.
He wasn't a lawyer.
He wasn't immersed in the law.
He was a Naval Academy graduate
and a nuclear engineer who went
back to being a peanut farmer.
But he did go against the grain
of southern politics as a
governor of Georgia.
He he made it very clear that
he believed that the era of
segregation had to end, and
the era of civil rights and
racial equality had to occur
for the South, and it had to
occur from within the South.
So when he became the first
Southerner since Woodrow Wilson
to be a Democratic presidential
nominee or a presidential
nominee, he was a
unique candidate.
He didn't come from the
Democratic Party machine.
He was an outsider, and it
enabled him to adopt, I think,
human rights as a
foreign policy mantra.
So he becomes the Democratic
Party nominee in 1976, and then
he defeats Gerald Ford,
but not by a mandate.
But he does defeat him, as
what I would argue was the most
unique presidential candidate
in 20th century history.
If I could please
get the next slide.
Carter was hampered
by foreign policy.
Sometimes he had great
victories, sometimes he had
opposition, and he had to
navigate the chaotic world.
He was hampered by the War
Powers Resolution more than any
other president. He agreed that
it ought to be important to be
hemmed in by it.
He wanted to return the
Panama Canal to Panama.
He certainly had opposition
both with conservative Democrats
and very conservative
Republicans, who
challenged him in the courts.
But it didn't go to
the Supreme Court.
But he won.
He was he was confined
by the Helsinki Accords
with the Soviet Union.
But his successes
would include the
Camp David Accords,
peace between Egypt and Israel,
navigating the South, the
Republic of Korea,
the South Korean
when the president was
assassinated there, Nicaragua,
he tried to bring a sense of
human rights to Central America.
And then we get to Taiwan
and the subject we're here for.
As I go through the slides,
if I could get the next one.
I would argue, as I do in the
book, that Panama and the
Republic of China
are interconnected.
Carter believed that the
rest of the world saw the
Panama Canal as the last of a
line of imperialism, of European
imperialism. In this case, the
United States is imperialism.
And he continued on a process
that Lyndon Johnson began.
But he accelerated that and
entered into two treaties with
bipartisan support in the
Senate, but with a lot of legal
challenges to return the canal
to the Panamanians and end once
and for all what he believed
was a signature piece of
U.S. imperialism,
and for the U.S.
to regain its city on a hill,
as you were mantra that Reagan
talked about that was necessary,
that made him an enemy
out of Barry Goldwater.
And then there's the
Republic of China.
I mentioned in 1954,
Eisenhower convinced the Senate
to sign in this treaty, and the
United States threatened
the People's Republic
of China, with war.
Carter, when he was elected,
more or less made indirect
statements that he would
continue the relationship that
had been involved
with the Republic of China.
But that's going
to change in 78.
If I could get the
next slide, please.
So here's the Conservative
Lion, Barry Goldwater.
I would say that Barry
Goldwater would have been the
most likely member of the
United States Senate to go
to try to stop this from
happening, partly because
Goldwater was in the Senate,
along with one other member who
voted on the treaty in 1954,
as well as a renewal on it.
But it's important to also know
that Goldwater and his Senate
alliance may have been the
old Lions, but two very young
members in the House of
Representatives joined with him,
and they got sort of their
political start in this opposing
Carter and got quite
a bit of media time.
And that's Newt
Gingrich and Dan Quayle.
And this alliance decided to
fight Carter's actions in
the U.S. court.
You can see a letter that I've
gotten from the Library of
Congress, from Goldwater to a
member of Taiwan's delegation,
where Goldwater expressed
disgust that Nixon, Ford and now
Carter have lied to him
over the status of Taiwan.
If I could get the
next slide, please.
The first and important legal
issue in this is how do you get
a case to court.
And that's standing.
And Goldwater is going to win
on this in the court of
Oliver Gasch in the United
States District Court
for the District of Columbia.
But he's going to
win the second round,
not the first. And the issue on
standing is, is there a discrete
and concrete injury
that he has suffered?
And the reason I say that is he
doesn't represent Congress
in this matter.
He represents one.
Well, he represents six
United States Senator.
Does he have a direct
interest in the outcome?
And is there a prohibition from
the courts taking up the matter
by law?
And and this is an important
issue for constitutional law
that we teach our first year
law students on.
Goldwater doesn't have a very
good argument when this first
comes up, but the Senate gives
does him a favor,
or does him a solid. They pass
a resolution that they believe.
That that Carter had to go to
the Senate first before
rescinding the treaty.
And that resolution gets
Goldwater standing to raise his
claim in the U.S.
District Court.
And if I could
have the next slide.
There's one case that will help
him out, but the weight of the
law is against
him at this point.
Nonetheless, Judge Oliver
Gasch, who was appointed by
Lyndon Johnson, determines in
September of 1979 that Goldwater
possesses standing and Carter
would have to go to the Senate
to seek approval for the
removal of the United States
from the Mutual Defense Treaty
with Taiwan, and that sends a
second bombshell
through the legal world
and the political world,
for the first time in history,
a U.S. district court judge
informs a president, you have to
go to the United States
Congress first, or in this case,
the Senate first.
If I could get the
next slide, please.
In between Garcia's two
decisions, I argue there's
political events that drive
that decision along, not that
Gash was a politician, but that
showed the chaos of the world.
One is we wanted to have
the country weaned off of oil.
Nuclear energy
was a huge promise.
You have the Three
Mile Island meltdown.
The other is the Shah of Iran,
is toppled, flees to the
United States. There's the first
attack on the U.S. embassy in
Tehran, anti-Soviet militants
in Afghanistan, for whatever
reason, and it's still
shrouded in mystery
attack the U.S. embassy in Kabul
and either they or the Soviets,
in attempting to stop this
murder or kill our United States
ambassador there.
And the Chinese army invades
Vietnam. At the very time, too,
there's a mass resignation of
cabinet secretaries from
Carter's administration.
This is chaotic, and Gash
acknowledges this in his second
order, telling Carter, you've
got to go to the Congress.
If I could get the next slide.
Well, then it goes to the Court
of Appeals for the District of
Columbia, and we get up to this
concept called Justiciability.
And the way Justiciability
worked in 1979 is that
in order for a person or an
entity to bring a court, it has
to be justiciable, meaning it
has to have a subject matter
that the courts can rule on.
And the Court of Appeals for
the District of Columbia made a
decision in a per curiam
decision, meaning not all of
them were aligned, that only
because of the unique wording of
the treaty, there's an exit
clause could Carter do what he
did and then decided, well,
that unique wording on article
ten of the treaty, the exit
clause enabling a president to
remove, which had never said
that in direct language, but you
could infer it would
they reverse Gash's decision?
They did hint that
couldn't be the case with NATO,
because NATO doesn't
have an exit clause in it.
So they found a case,
they said there's no case or
controversy in this particular
matter, but there would be in
regard to other treaties that
didn't have an exit
clause in there.
If I could
get the next slide.
But then it goes to the Supreme
Court and it runs right into the
political question doctrine.
And what I tell my students is
the political question doctrine
boils down to this.
It's the courts deciding
there's a significant
constitutional issue at play.
They made it very complex
in Baker versus Carr in '62,
significant constitutional
issue at play.
But we're not
going to rule on it.
And the reason we're not going
to rule on it, it's too complex.
It's too political.
Let the other two branches
of government rule on it.
And that's what happens in
Goldwater versus Carter.
The Supreme Court dismisses
the suit and basically tells
the elective branches of
government, this is your
problem. Work it out and do
what you're going to do with it.
You have other avenues.
Just as an aside, so I have
enough time for questions.
There's an important case in
1974 called Schlesinger versus
Reservist Committee to stop the
war, a group of anti-Vietnam War
citizens who were in certain
congressional districts sued,
saying that members of Congress
could not hold military
commissions because that made
them amenable to the commander
in chief authority of the
president, and therefore they're
not independent members of
Congress, the lower court said.
You're right.
That weakens Congress.
And there's a specific clause
in the Constitution prohibiting
that. But the Supreme Court,
in reversing on the political
question doctrine, said,
be that as it may.
This is a problem for the
Congress of the United States
and the president to work out
themselves, and we cannot take
cognizance or
justiciability of the issue.
So that's the political
question doctrine in a nutshell.
Five justices on the Supreme
Court decided the political
question doctrine
or four justices.
The political question doctrine
prohibited the court from
taking up the issue.
One plurality, one concurrence.
Justice Lewis Powell argued in
another time and another matter
we could do it if enough
members of Congress, like a
simple majority opposed it.
But there's not
enough there there.
So I'm going to join
with the majority.
And then you have three
justices, Blackmun, white and
Brennan, arguing that the court
could take up the issue, that it
was of a sufficient
constitutional magnitude, that
the court had a duty
to take up the issue.
And if I could please
get the next slide.
By the time the court issued
this decision, the Soviet Union
was on the cusp of formally
invading Afghanistan.
Hostages were taken in Tehran.
The U.S. embassy had been
attacked in Pakistan.
Moammar Gaddafi and Libya
threaten the United States.
The Europeans and the Japanese
refused to make a statement on
how to address Khomeini and the
seizure of hostages in Iran.
There were rogue CIA and
other intelligence agents
suing the United States.
And this is why I would argue
that it only took the
U.S. Supreme Court
without oral argument,
less than 15 days
to get the issue,
and then make a decision
to punt the issue back to the
Congress and say, you decide,
you're the ones who are supposed
to do foreign policy and
domestic policy and give us
stability. It's not our job to
do that, because if we do that,
we'll be entering into the
political thicket which our
Constitution specifically
prohibits us from doing.
If I could please get
the next slide. Thank you.
Did the court issue a decision?
Not really.
If we examine the issue today,
what I would say is the courts
have left the decision to
remove the United States from a
treaty, including NATO,
to the political branches of
government, to the House and
to the Senate to determine
and the court will stay out of
that, even if it included NATO.
Here's where the justices fell.
Burger argued the Senate and
the House had never resisted or
opposed Carter as a body.
Rehnquist drove home the
political question doctrine that
four justices
followed suit with.
Powell I already explained,
Blackmun wanted a decision based
on constitutional importance,
and Brennan wanted to argue that
Goldwater was trying to realign
the powers of the various
branches, the three branches of
government, to a degree that the
Constitution wouldn't tolerate,
and therefore decision published
opinion was important.
But as we stand here
today, there is no
U.S. Supreme Court ruling
and no court ruling on how the
United States exits a treaty.
If I could continue.
And this is my final point.
Goldwater argued.
The president could remove the
United States versus from NATO.
He was laughed at. The
irony to that is twofold.
One is that at least
there was an implied with
the prior administration
that it could happen,
that the U.S. would exit NATO.
Whether we would do so or
not is an open question.
The other irony is a little bit
less than that is it was
Goldwater that pushed
Rehnquist to go on the court.
He was the personal lobbyist,
the two Arizonans to
Richard Nixon to get Rehnquist
on the court in the first place.
And they were very good
friends. But in this case,
it was a case of two
conservatives looking at the
Constitution
significantly differently
without losing their friendship
in the process.
And with that, I'll conclude my
presentation because I think
I've gone a little bit over
and open it up to questions.
>> Ryan Reft: No problem. Josh.
Connie is going to kick us off.
>> Connie Cartledge: Thank you,
Josh, for that great overview.
My first question is, why was
Senator Goldwater not able to
marshal more support
from his lawsuit among his
fellow senators? And how
did the issue of standing
impact the case in all levels
of the federal courts?
>> Joshua Kastenberg:
So so that's a great question.
The first one on Goldwater, and
I've gone through his papers at
Arizona State University, where
the historic society transferred
them there. And I've gone
through Senator Bob Dole's
papers and also the House,
Senate Minority Leader, Baker
and Tennessee. And the best
answer I can give through that
is Dole had already lost
lawsuits against Carter
involving the return of
Cultural Properties to Hungary,
which was a country at that
time behind the Iron Curtain,
and he didn't.
Dole also feared that the court
might rule with Carter, and so
he wanted out of it.
Baker wanted that just simple
House resolutions.
Baker was a moderate
Republican, and he viewed
Goldwater's actions
as a bit extreme.
And then there are others who
one might have thought would
have aligned with Goldwater.
And they were afraid that
a court ruling in favor of
Goldwater would hamper
the Congress in the future.
And they had no idea that
Carter wouldn't win reelection.
Actually, there's some good
letter writing that they
believe Carter would likely win
re-election and serve a second
term, and so they
feared that possibility.
As for standing, the Court of
Appeals for the District of
Columbia, and I'll put a plug
in for the Manuscript Division
on this, because with the
exception of one judge that I
looked at, MacKinnon who's
dissented in this and
MacKinnon's papers are at the
Minnesota Historical Society,
and I've gone through them.
But I think the Court of
Appeals papers of McGowan,
Leventhal write, Fahy and the
others are some of the most
magnificent collections
that the LOC or that exist
in the United States.
And they
grappled with standing.
They didn't want
to expand standing.
They wanted to keep
standing narrow.
But they recognized they had
ruled in a case called Kennedy
versus Sampson that they had
given standing to Senator
Ted Kennedy. And
one very narrow case.
They wanted to keep
that avenue alive.
So they did this really close
navigation through the issue.
And what they arrived at is the
plain language of the treaty
denied Goldwater standing and
that Oliver Gasch, whose papers
are at Georgetown, but many of
them are in Gerhard Gazelle
collections at the Library of
Congress as well, because they
wrote quite a lot to each other
that they believed Gasch had
given too broad of a ruling.
But it wasn't
necessarily incorrect.
It was incorrect
to the actual issue.
And by the way, on the Supreme
Court issue, the Burger Court
believed that they needed to
narrow standing down from the
Warren Court. They were
still grappling with
William O. Douglas's attempts to
expand standing
to include not trees.
He's been maligned for that
comment, but the Sierra Club to
represent the environment in
stopping government encroachment
into environmental lands.
So I hope that
answers your question.
>> Ryan Reft: Yeah. Just to
follow up on Connie's question.
Some conservatives appear to be
wary of the case as a sort of
double edged sword.
How so? And why?
>> Joshua Kastenberg: Well,
the double edged sword is this.
The conservatives believe,
like Baker, for example.
And even I would say Robert
Dole, that although they often
aligned with Strom Thurmond and
Goldwater and looked at them as
leaders, they looked at
Goldwater and Thurmond also as
reactionaries. And this was a
case to them of be careful what
you ask for. You might get it,
because if a president is
hampered today, then a
president is hampered by the
same law tomorrow.
And with the big bad Soviet
Union in the Eastern Bloc there,
they worried about
if the court would prevent a
president from acting
unilaterally in other areas.
And I would say the big winner
in this case was Robert Dole and
that bloc of conservatives,
because they got what they
wanted with the Reagan
presidency, where Reagan was
you know, and after--
I would make this argument that
after Franklin Roosevelt, Reagan
was probably the most forceful
president in terms of executive
action in the
foreign policy realm
without going to Congress first.
And so they won.
They got what they wanted.
But but that's why I think the
conservatives were over the map
on this particular issue.
I didn't want to
call names, but I would say
my own estimation is this was a
case of conservative
reactionaries
versus old line
conservatives.
>> Ryan Reft: Well, we
don't see that anymore.
So this is a timely
presentation one because
of events in the
last week or so.
First off, but also because in
American life Scotus has really
over the last 30, 40 years,
I assumed a much larger role in
not supposed to be legislation,
but you could argue
legislation and law.
So it seems important in your
book to kind of discuss a point
you raise and the
imperial judiciary.
What is the imperial judiciary
and how does it factor into
American history and
perhaps this case?
>> Joshua Kastenberg:
That's a wonderful question.
I mean, it really is a
wonderful question.
So Arthur Schlesinger Jr may
have been the one to coin the
imperial presidency, but he
sure popular popularized it even
if he didn't coin it. And what
he argued was from the time of
the Gilded Age with
Grover Cleveland and the
Pullman Strike, the U.S. sort of
went through a period including,
I mean, going back even earlier
with Abraham Lincoln and the
Civil War peaks and valleys of
a presidency that had grew
beyond what the Constitution
intended into a dangerous
moment. And beginning with the
New Deal, which he supported,
it became more
and more dangerous.
You know, Harry Truman not
going to Congress for a
declaration of war in Korea,
Lyndon Johnson and the Vietnam
War, getting the Gulf of Tonkin
Resolution, but using that
resolution to go
to war into Vietnam.
Richard Nixon was the greatest
sign of a system run amok to
Schlesinger. And beginning with
the end of the Vietnam War,
there was an attempt for
Congress to reassert itself and
the people to hold the
presidency in check.
And you see this with committee
hearings into the CIA, the FBI,
the War Powers Act of 73, and
the courts largely stay out of
that. But this decision to
order a dismissal, it's not an
opinion, but the decision to
order a dismissal in Goldwater
versus Carter, I argue rebuilt
help rebuild with along with a
couple of other decisions
afterwards help rebuild the
imperial presidency.
The decisions I argue, that are
related to it include Dames and
Moore versus Reagan, in which
the president can stop a civil
suit from happening in the
courts under certain
conditions, if it will affect
foreign policy.
And that decision arises
from the Shah of Iran and
Khamenei's take over.
And corporations suing to get
payment from the Iranian
government for building
construction projects
they're not getting paid.
The other one is Nixon
versus Fitzgerald, which you
cannot sue a president for
misconduct in tort law that
occurs during the presidency
for official presidential acts,
which can mean anything.
And these are the same
justices. And I think within a
three year period, beginning
with Goldwater and ending with
Fitzgerald, the Supreme Court,
whether by intention or by
a mistake, rebuilt the imperial
presidency that Congress worked
really hard to bring into check.
And we've never
recovered from that.
And part of-- mainly
it's the fault of Congress, but
I would say the
court enabled it.
>> Connie Cartledge:
Thank you there for that answer.
I have a question.
You've already mentioned the
two central courts, other than
the Supreme Court, who played a
major role in this case, the
United States District Court
and the United States Court of
Appeals, both located in the
District of Columbia.
Could you explain the
difference between the two, and
how does a case come before the
district court, and how does it
make its trajectory to
the Court of Appeals?
And also, I'll throw in there,
which is one of our favorite
quotes we hear.
Why is the Court of Appeals for
the District of Columbia's
circuit, often described as the
second most important court in
the land to the Supreme Court?
>> Joshua Kastenberg:
Those are great questions.
So a case goes to the U.S.
District Court for the District
of Columbia, often much in the
same manner that it would to any
U.S. district court. There's a
case or controversy that arises
under federal law,
or there's a constitutional
implication to it that arises
out of a state judicial hearing.
And that's a Byzantine,
difficult navigation.
That would take too long.
But it's the starting point of
most suits, unless it's a state
suing another state, which may
happen now in New Mexico versus
Texas on a different issue,
that would go straight to the
U.S. Supreme Court.
Parties can always appeal
rulings from U.S.
district courts.
And if the Court of Appeals
and this includes the Court of
Appeals from the District of
Columbia by a simple majority
vote or by a three judge panel,
believes that an appeal is
meritorious from that ruling,
they'll take it up and decide
whether to publish an opinion
or an unpublished opinion.
In this particular case, it was
so deemed so important that they
held the hearing
what's known as en banc.
So instead of a three judge
panel, all of the judges other
than two who felt like they
needed to recuse themselves, met
and decided the Goldwater
versus Carter appeal, and that
was very rapid from September
to November when they did that.
Why is this court the second
most important court?
Here's why.
The other courts, the
numbered courts of appeals will
hear cases against the U.S.
government, but the majority of
their cases they hear are
actually civil disputes that may
be entitled Firestone Tires
versus Ford Motor Company
or criminal cases.
You know, Jones versus
United States.
They'll be environmental and
they'll be environmental and
government access kind
of arguments there.
But the Court of Appeals
for the District of Columbia
receives a much higher,
considerably higher proportion
of cases that are not statutory
alone, but are both statutory
and constitutional and involve
the United States government
as a defendant.
And so the decisions they issue
often have a greater
constitutional impact than the
decisions which the numbered
courts of appeal do.
And it's been that way since
the realignment of the courts,
clearly to me since 1911.
But it's been that way since
the beginning of time.
I think, with our country, that
the courts in Washington, D.C.
are going to have the
majority of cases
that issue the
greatest number of
constitutionally based decisions
that will change the way we
interpret the Constitution.
And then finally, to the
Supreme Court to get a writ of
certiorari, you have to have
four of the justices agreeing
that the issue is important
enough to bring up for the court
to actually hear which
did happen in this case.
But then the court did
what one professor is called
the first down, one yard punt.
I don't use that on a
significant constitutional issue
and said, this is of such a
political nature that we're
going to use the political
question doctrine that I sort of
described quickly already and
throw it back to the
Congress to decide.
>> Connie Cartledge:
Okay. Thank you for that.
I just want to follow up with--
You mentioned some of the
collections that you use from
our local federal court judges.
You mentioned Carl McGowan,
Harold Leventhal,
and J. Skelly Wright. What did
you find that surprised you
in those collections? And
how did these lower court
judges collections differ
from the Supreme Court?
>> Joshua Kastenberg: Yeah,
that's a wonderful question.
And I want to throw in there
that I also use Charles Fahey's
collections, although he was
out by the time, but some of the
earlier cases that were
important, he had played a role
in and I've used other
collections as well, like
Stevens and Prettyman's
collections, too, because I go
back in time, and I think the
personal correspondences of the
judges are really important.
Well, there are two things that
I think our listeners ought to
know for legal historians, too.
One is those collections are
really robust in their historic
background, and they give a
wonderful picture of life in the
United States generally.
In a way, the Supreme Court
decisions don't, because
they have cases like Church of
Scientology versus IRS and,
Delta Airlines flight attendants
versus Delta Airlines.
Those cases never make
it to the Supreme Court.
But if you want to know about
gender disparities or religious
rights or the limits on the IRS
or air pollution or police
overreach or under reach,
those are the collections
you really need to go to,
or just American life.
Like whether or not Coca Cola,
you know, and soft drinks
shouldn't be served
at school lunches.
Those are cases like that in
the 70s that never make it to
the Supreme Court, but we still
grapple with those today.
The other thing that I
found surprising is how
absolutely thoughtful and how
absolutely bright the judges are
on those lower courts.
They're not second rankers.
None of them are, even though
some of them have been portrayed
that way, their first rank,
first rate legal minds, and
they're often equal to or, I
would argue, more thoughtful
than their and less political
than some of their Supreme Court
brethren. And on top of that,
the relationship they have with
each other doesn't mean that
they're going to be on the same
side. And that's
Leventhal, right,
and McGowan, all of whom were
deemed as being traditional
New Deal kind of liberals, they
broke apart on the Goldwater
issue, and they broke apart on
many other issues as well.
But they still maintain their
collegiality with each other.
And so I would encourage
legal historians, and I would
encourage those who are
crafting appellate briefs and
citing to those earlier cases,
if they can, to go to those
collections, because, as I say
to my students, context is
everything. And if you don't
have context, you're lacking
everything in that point.
And it gives a really good
sight picture to make those
arguments from.
>> Ryan Reft:
Thank you for that, Josh.
I would just reiterate
Professor Kastenberg's points.
You know, it's also
many cases, not many.
But there are several examples
where cases just end in the
Court of appeals, and that ends
up being law, NEPA, the
Environmental Act is one
example where a decision by
J. Skelly Wright ended up
determining making that law more
effective. So there's other
ways to use those collections as
well. And we're very thankful
that Professor Casper has found
a way to utilize
them so efficiently.
One of the striking differences
of this era, at least
when Connie and I read the
book, when we discussed it with
each other, was the tendency of
members of Congress from both
parties to kind of zealously
guard congressional power from
the other branches,
particularly, as you noted
in the, you know, as they clawed
back power from the executive
branch. How much of this
dynamic shaped the case, and how
would you compare the
relationship between Congress
and the other two
branches then and today?
>> Joshua Kastenberg: Well,
you know, I would say this.
After Goldwater versus
Carter was issued,
Barry Goldwater gave a really
laudatory statement to,
you know, to the press about
all he wanted was the court to
make a ruling on it, and he
trusted the majority of the
court to get it right.
That doesn't happen
to that degree anymore.
There's quite a lot of
criticism of the court.
And without getting into
whether it's merited or not,
we know a lot more about the
justices personal lives today
through social media and news
organizations like Politico,
than was commonly
known back then.
And I touched that
on the book I write on
William O. Douglas
that came out earlier.
We know quite a bit
more about it.
The other thing is
this about Congress.
Congress used to be a lot more
unified in their approach
in terms of alliance building.
And conservative and moderate
Democrats agreed with
Howard Baker and other moderate
to some conservative Republicans
on the issue of Goldwater versus
Carter and other significant
cases of that era in what the
right result would be.
And you don't see
it anymore like that.
What you see now is one side
rips apart the court for issuing
a decision they don't agree
with, or an opinion they don't
agree with, and the other side
sings the court's praises.
And meanwhile, the Congress
itself becomes somewhat
dysfunctional and
fighting with each other.
And we haven't had a
supermajority in Congress.
So I don't know
how that would work.
But the distrust between the
branches of government now,
today, I would say, is higher
than it was at the time of
Goldwater. And some of it is
political opportunism,
and some of it is because of
what we know, and some of it is
actually because
our beliefs today,
I would say in key areas, like
with the overturning of Roe
versus Wade, our beliefs,
wherever one may fall on that
or the Second Amendment are far
more embedded, far more
entrenched, and far more
reactionary at times
than they were in 1979.
>> Connie Cartledge:
Thank you for that.
In your book, you
mentioned a number
of collections, and I think I
counted. It's almost two dozen
collections and a lot more
than just our judicial
collections. You use
journalists such as
Anthony Lewis, Mary McGrory,
George Lardner, Edward Brooke,
senator from Massachusetts,
Patsy mink from Hawaii,
Herbert Philbrick,
William Rusher
and this range of
different collections.
Were there any items
that surprised you?
I'm always, as an archivist,
curious to see if there was
something that, you know,
surprised you and picture
your curiosity further?
>> Joshua Kastenberg:
Absolutely. With the journalists
their notes give you the
state of mind of the people
they're interviewing that don't
appear in their articles often,
as well as people
they interviewed that
don't appear in their
published articles.
And those handwritten notes are
a gold mine, and I didn't
realize that before I
started looking in on those.
In regard to the members of the
Congress, this goes back to
when I wrote the book on the
attempted impeachment of
William O. Douglas, I don't
think you can write about
political and social
issues in politics
without going to
Patsy Mink's papers.
I think Patsy mink is
someone who deserves not one
biography about
her, but a dozen.
I think she was an amazing
human being who needs to see
the light of day.
Brooke was the last, I would
say, of moderate
Republicans who really
was a Republican.
He was not a rhino as a
derisive term today, but he is--
His papers are often
great go betweens
as to why Hill explained to
Richard Nixon, Gerald Ford, or
even Ronald Reagan why he's not
and others can't support him on
certain things and would
support presidents
on other things. So for me,
Brooke is the perfect example of
a very thoughtful, very bright
politician who stays true to his
constituents, his beliefs,
as I would say to mink
about Mink's papers.
But but Brooke helps you get
into the mind of Richard Nixon
and Gerald Ford and the far
right, too, because he's often
an ambassador between the
various factions then getting
into Rusher and Philbrook.
Well, those are conservative,
far right wing political
activists. And, you know, there
are members of Congress
that sign up to Goldwater's
brief who don't have good
connections to them,
like John Ashbrook.
And I think Jim Jordan sits on
John Ashbrook seats and sort of
has continued. Ashbrook was
sort of the beginning of or
at least the pinnacle of
that sort of strain of politics.
He doesn't have a
great collection.
I've been through them in Ohio,
but his best papers
are in Rusher's papers.
And I don't think you can talk
about the rise of the far right
as it exists today without
going to Philbrook and more
importantly, Rusher.
And the big surprise to me
isn't these aren't just
pamphlets. And the surprise
to me is the amount of
correspondence and the
reasoning that's presented by
those correspondents, like
Ashbrook and others in those
correspondence, gives you
everything you'd ever want to
know about that.
And it's at the home of
where it should be, where you
work at the Library of
Congress, because it shapes
politics, it shapes our
society, it shapes our culture.
And it's there.
>> Ryan Reft: Obviously,
I second that answer.
Thank you. We have a question
from the audience from
Jonah Chadwick Griego. I hope I
pronounced that correctly,
Mr. Griego. If I did
not, I apologize.
After Scotus's West Virginia
versus EPA decision, could major
question doctrine now encompass
this subject matter with a
conservative supermajority?
>> Joshua Kastenberg:
You know, I don't--
The major questions
doctrine I don't think can be
a substitute for the
political question doctrine.
I don't think it can overcome
it, because the major question
doctrine really relates to
administrative law, where the
super majority has said there's
no way that Congress would have
delegated to unelected agency
chiefs and agencies the ability
to issue decisions that affect
issues of major importance or of
major economic significance
and import in the country.
The political question
doctrine, like in Baker versus
Carr, which the court did make
a ruling on Powell versus
McCormack, where the court made
a ruling on and then Goldwater
versus Carter, where it
didn't make a ruling on.
I think that sits in its own
milieu and has now been
protected against a new, say,
a liberal majority came in and
tried to use the political
question doctrine to overcome
the major question doctrine.
I just don't see it happening.
Those are two independent
doctrines that are basically two
fortresses that can't encroach
into each other now.
>> Ryan Reft: You know,
we got time for one more.
And Connie and I were just
curious just to take this up to
the current day without getting
too political or anything.
If Goldwater versus Carter
happened today, do you think
federal appellate courts
would still view presidential
authority in foreign affairs
as a political question
and not for judicial review?
It's a subject that has come up
in the last 6 or 7 years,
at least, for discussion.
>> Joshua Kastenberg:
Well, I think there would be
a lot of consideration,
but I think
the same decision would be over.
It would result.
But I do think that you would
see a much larger
and independent reasonings
published in the Supreme Court
reporter than you saw then,
you know, it goes back to this
current court either
they have a supermajority
of conservatives,
I would say they still probably
on this issue would insulate
themselves from the
political question.
If a president were to come in
and say, you know what, I'm done
with this Ukraine war support,
I'm removing us from NATO,
you're up. You're on your own.
I don't think the courts would
take the issue up today on that.
I think there would be a
minority that wanted them to and
would issue a real
robust dissent on that.
But I think we'd be
back in the same place.
And then Chief Justice Roberts
might say, you know, in the
words of my predecessor, Warren
Burger, which he would jump back
to over Rehnquist and
Nixon versus Fitzgerald,
you always have the
impeachment option
and that's what Burger said.
But that does turn impeachment
into a political matter, too.
But it puts it into a
political matter back in the
Congress as well.
>> Ryan Reft:
Well, thank you for your time,
Professor Kastenberg
for a concise
but very dense and
informative talk,
one that, again, very timely
for a number of reasons.
Thank you to Connie Cartledge.
And thank you to Elizabeth
Schreiber Byers for producing,
as always, and thank you to the
audience for attending the talk.
We look forward to
hearing from you.
And please tune in to the next
Made by the Library.