What The Media Have Not Said Upon Ford's Passing

January 3, 2007

By Lawrence R. Velvel
Lawrence R. Velvel is the Dean of the Massachusetts School of Law


The death of Richard Nixon led to an outpouring of praise for him. You would have thought a saint had died. It was not until awhile later that people began to publicly remember that Nixon had been an evil man, had been, in his own famous description of what he claimed he was not, "a crook."

The death of Ronald Reagan was met by a more balanced assessment than Nixon's. This was surprising because, though people of my own views disliked most of what he was and did -- except, of course, for what is generally though not universally thought to be his role in causing the collapse of the Soviet Union -- the fact is that a large portion of the country regards him as Saint Ron. For a balanced assessment upon death to be made of Saint Ron, when only huzzahs for his accomplishments greeted the passing of the aptly nicknamed Dick Nixon, struck one as unusual.

The passing of Gerald Ford has generally been met, one thinks, with the same kind of balanced assessment as was Reagan's. At least this seems true as I write, on Friday, December 29th. Yet there are two points which give pause, one of which was passed over very lightly in the media, the other of which has been the subject of extensive discussion.

The matter given hardly a lick and a promise is Ford's effort to impeach Justice William Douglas.

In recent years, conservatives in departments of history or political science, and in the judiciary, have done their best to savage Douglas. They accuse him of being a liar, of being a philanderer, of not caring about judicial craft, and of almost any other sin or alleged sin you can think of. Maybe there is something to what they say, maybe not. Maybe there is something, but less than they claim (or pretend). I personally met Douglas twice, once at a dinner honoring him, attended by about two dozen people, in my home in Lawrence, Kansas, before he made a speech at the University of Kansas, and once afterwards in his chambers (i.e., his office) for lunch when I was visiting Washington. Both times he was a very charming, very nice fellow, and on the first occasion he showed himself especially percipient about the future course of Harry Blackmun. So I can't really comment on the conservative claims of turpitude. I can say, however, that back in the '50s, '60s and early '70s, the attempts to "get" Douglas were basically motivated by a conservative-to-reactionary attempt to hold back the tide that swept over mid-late and late 20th century America. Nor would I be surprised if at least some -- who knows what percentage? -- of the recent efforts to savage him have been motivated by, or at least reflect, pique, or anger, that things Douglas stood for have prevailed.

Jerry Ford was prominent -- was a ringleader -- among those who tried to "get" Douglas because the Justice was in the forefront of the liberal wing of the Supreme Court, both before and after Earl Warren, as well as during the Warren Court. In attempting this the reactionaries and the conservatives wanted to reverse or nullify, if they could, the Court's rulings on reapportionment, on voting rights, on free speech, on religion, on rights of privacy (which culminated in that famous case about alternative choices of waterborne movement, Roe v. Wade), on criminal rights, and who knows what else. Ford was one of the reactionaries who desired some or all of these reversals, and was in the van of the movement to try to impeach and get rid of Douglas because of the Court's decisions. Yet many of the decisions or perhaps even most of them -- one would guess there are people who think all of them -- became part and parcel of the America of today. Douglas was a man who was on the right side (meaning the correct side) of everything. Ford was a man who was on the politically right (and therefore the wrong) side of lots of things, most things in fact. What Ford attempted to do to Douglas was unforgivable, and should not be forgiven. But we have heard very little of it upon his passing. Perhaps this is precisely because what Ford did was unforgivable.

The matter which has received extensive treatment is, of course, Ford's pardon of Nixon. I am willing to take at face value Ford's denials that there was a deal in advance for a pardon, and am willing to do so despite Alexander Haig's discussion with Ford, and the two relevant pieces of paper he gave Ford a week or so before Nixon resigned (one of the papers was a blank pardon.) In this connection I'll accept either or both of two non-mutually exclusive propositions: that Ford was honest and that he was unintelligent enough to fail to comprehend the possible implications of Haig's comments. But even accepting the denial of a deal, the pardon was inexcusable and is to this day unforgivable.

One is aware, of course, that after being greeted with a huge outcry -- even Ford's Press Secretary resigned rather than defend it -- the pardon came to be seen as a good and courageous thing, and is thusly lauded today. (Even Ted Kennedy, who at first opposed it, ultimately changed his mind about it.) One is likewise aware that Ford, and people who now approve it, think the pardon helped to supposedly "heal" this country, as it is said, and to further put an end to what Ford had called our "long national nightmare." None of this moves me one bit. I think that in the long run, and considered in the light of what has happened and what America has become, the pardon was a disaster -- or, perhaps more accurately, was another in a train of disasters.

The pardon showed, once again, -- in fact I think it publicly showed for the first time, really -- that in America we do not punish criminals in high office or, for that matter, people at somewhat lower levels if they are acting in accordance with the wishes of those in high office. There have been some exceptions to this, of course -- Iran Contra being a major one, although even there no punishment was imposed on the people at the very top, including Reagan. But by large, if you are high enough, and if what you've done is bad enough, you can expect to get off scot-free in this country. So Johnson, McNamara, Bush, Nixon, Kissinger, Bush II, Cheney, Rumsfeld, et al -- unlike the soon to be hung (or, by the time this appears, perhaps the recently hung) Saddam -- will never see the inside of a dock or a prison let alone stand on a gallows. That the truly big time miscreants inevitably get off scot-free here is one of the reasons many Americans (justifiably) have little or no faith in our government. It is also one of the main reasons our leaders all-too-blithely take us into wars, uselessly bomb large sections of other countries to smithereens, order up torture, mess over and suppress civil rights, and so forth. There is nothing holding them back, you see. There will be no trial, no punishment, and, for that matter, not even an impeachment. Neither will their own children or relatives get caught up in a war. So this cautionary possibility does not hold them back either. And the lesson that our home grown warmongers will never suffer trial and punishment for their illegal deeds was driven home -- maybe, as I say, for the very first time -- by Gerald Ford's (precedent setting?) pardon of Nixon.

In this greater scheme of things, it is mere irony that Ford also committed the basest hypocrisy by saying, earlier in his speech announcing the pardon, that he believes people must be treated equally before the law.

One knows, of course, that Ford and persons who approve of the pardon have said it saved us the divisiveness that would have been caused by the sight of a President defending himself against criminal charges for a year or three. This could be true, but in a larger sense is just a bunch of humbuggery. The pardon may have spared us that particular divisive sight, but it certainly did not spare us the most bitter division over the years. The conservatives on the right have never gotten over the '60s and for years tried, and may still be trying, to roll us back to the '50s or even the 1890s. There is still a tremendous and bitter division in this country over such things as the Viet Nam war, the place of religion, sexual matters, abortion, permissible infringements on civil liberties, economic regulation versus almost wholly unregulated capitalism, and, most importantly of all because it has the most profound impact of all, militarism and world wide interventionism. The pardon stopped none of this bitterly fought division and may even have implicitly encouraged the crucially important warmongering and imperialistically interventionist segment of it by making clear that Presidents and their top men would never pay any criminal penalty for any of it. And, as a fillip, it is no little irony that Ford, who claimed he pardoned Nixon to heal divisions, raised to their first stint in truly high places a number of people who have been instrumental in kindling or throwing gas on profound divisions or who gave us a child who did so (and who, but for the father, couldn't have been elected dogcatcher). I speak of course, of Cheney, Rumsfeld, and the first George Bush.

Ford's horrid act of making plain that evil men would not be punished has repercussions even as I sit writing this. Knowing there will be no punishment, not only have our top officials committed indubitable crimes in Iraq and throughout the world in connection with their so-called war on terror, but one is hard pressed to doubt that, notwithstanding the electoral verdict of November 7th, George Bush will soon be sending more troops to Iraq, probably tens of thousands more. This will not be a crime because Congress passed on authorization of war which allows it, but it will nonetheless be a truly terrible thing to do. But what will stop the true believer, the pretender-in-chief, the man who gets his orders from a higher father than his earth bound father? He knows that, as the Nixon pardon shows, and as also shown by the failure to prosecute Johnson or Nixon or Rusk or McNamara or Kissinger or Bush himself or Cheney, etc, there is no true price, and certainly no criminal price, to be paid for anything he does. If you ask me, the price that we as a people have been and will continue to pay, at least in part because of the pardon, far exceeds any supposed, and heavily nonexistent, benefit from it.

* * * *

The week that I write this, C-Span is carrying tapes of a conference on Viet Nam held at the John F. Kennedy Memorial Library last March. There were academics speaking at the conference who as much as said, based in part on documents that only recently have seen the light of day one gathers, that Nixon and Kissinger prolonged the Viet Nam war for years, and caused the deaths of perhaps another 25,000 or 30,000 Americans plus uncountable number of Vietnamese, so that the ultimately pardoned-by- Ford Richard Nixon would be reelected in 1972. If you ask me, this is, in effect, and even if not intended as such, an accusation of mass murder for political purposes, and it probably is not incorrect. But on one panel, consisting of Theodore Sorenson, Jack Valente, Kissinger, and Alexander Haig, Kissinger (and Haig too, but especially Kissinger) showed no remorse whatever, apologized for nothing at all, used his large, McNamarish -- type, if evil, brain to bring up, one after another, purported facts and claims supposedly supporting everything he did, and leveled defacto accusations of bad faith and ignorance at members of the immediate audience who thought him wrong, evil, or just plain a schmuck (all of which could include me in my living room watching him on tape many months after the conference). The only man of the four who seemed to have truly learned from the horrid experience of Viet Nam was Jack Valente. Yet Valente, admirable as he otherwise seemed, made one want to puke at the end by sympathizing with Kissinger, who many of us think the epitome of an evil genius, and by calling him a great man. So, as the conference at the Kennedy Library showed, today we have a guy like Kissinger (and to a lesser intent Haig) who, because we follow Ford's pardoning precedent and do not prosecute the evil doers at the top, gets to write books, speak at prestigious venues and make a bundle of money -- in the millions no doubt -- instead of preceding or following Saddam to the gallows or at least spending decades in the slammer. The latter fates are the types which, at least morally if not legally, and, for all I know, legally -- speaking too (and sometimes I am sure legally speaking too) would have been appropriate for Kissinger, his Democrat and Republican colleagues at the top with regard to Viet Nam over the course of ten years, and for the top officials of today's American government who have given us torture, kidnapping, crime, and massive deaths in Iraq and throughout the world during the last six years. Yet somehow (he says tongue in cheek) none of this seems to have made it into the mainstream media in connection with Ford's passing and the consequent discussion of the pardon. What a surprise, eh?


Lawrence R. Velvel is the Dean of the Massachusetts School of Law and editor of the blog Velvel on National Affairs. He can be reached at velvel@mslaw.edu.