AND THE WINNER IS . . . . .

Read to The Chicago Literary Club

By Stephen P. Thomas

Monday, November 5, 2012

Good evening. Here we are again on the eve of an American Presidential election. I started this paper some weeks ago thinking I would share with you some of the political wisdom I have gained from long exposure to Presidential politics. I can now remember 16 campaigns starting with Truman vs. Dewey in 1948. I spoke here about that election four years ago. As to accumulated wisdom, I soon found my ponderous thoughts to be of little interest even to me, so I will keep them to a minimum. Instead, I would like to share some random Presidential trivia with you and a few anecdotes and items of personal interest which have come my way, especially as to the tumultuous 1968 and 1972 campaigns and their aftermath.

How about this for trivia? At his first inauguration, George Washington had only one of his natural teeth. Not only did he have poor teeth to start with, but Martha may have been a bad cook or perhaps she also had a mean streak. He was the first President to wear dentures. They were not made of wood as is commonly stated, but of actual teeth placed on a base of hippopotamus ivory. Of course as the first President he was the first President to do whatever he did. Had Washington’s first inaugural (at age 57) on April 30, 1789 been one week ago, he would have been standing in water up to his knee breeches, as water from hurricane Sandy was lapping on the steps of Federal Hall on Wall Street in lower Manhattan.

Before moving on to the Nixon era elections I would like to note in passing that our Constitutional system for Presidential elections presents real problems in contests which are very close because of the rather cumbersome electoral college procedures now embedded in the Twelfth Amendment, added in 1804, and the curious mixture of state and Federal law bearing on the selection of electors and their conduct once selected. For starters, there is no assurance that the candidate receiving the most popular votes will have a majority of the 538 electoral votes because of the winner take all system in which the winner (by however narrow a margin) in each state (except Maine and Nebraska) gets all of that state’s electors representing the combined number of House of Representative members plus two for the Senators. In the 2000 election Gore received more popular votes than Bush, but fell short in the ultimate electoral vote thanks to a ruling by the U S Supreme Court concerning balloting in Florida. In 2012 there is talk of the real possibility of a tie in the electoral vote at 269 each. This would send the Presidential decision to the U S House of Representatives where (under the 12^th Amendment) if no candidate has a majority of the electoral vote, each state gets one vote for the Presidency to be determined by its House delegation (not the pre-election House, but that resulting from the same electorally deadlocked Presidential election).

The new House does not even meet for these purposes until after December 17, 2012, the date established for the electors to meet in the several states to cast their electoral vote. These results are then transmitted under seal to the President of the U S Senate and opened for tabulation and review on the next January 6. It gets worse – because under the 12^th Amendment, while the House of Representatives selects the President if no candidate receives an electoral vote majority, the new Senate gets to select the new Vice President. So imagine President Romney delivering the next State of the Union message to Congress with Joe Biden sitting behind him as both new and former Vice President and presiding officer - assuming that Romney would be willing to turn his back on his potential successor.

Imagine the potential for litigation and conflict over close House contests in swing states where Republican and Democrat Representatives are nearly equal in number, and the uncertain waters where (as has happened before) Presidential electors (so called faithless electors) do not follow their presumed or prescribed mandates, a function of the election law (such as it may be) in each of the 50 states. How much stress can our Constitutional system withstand? It has a pretty good track record, but these are perilous times. Thus the title of my remarks. I just hope the winner is one or the other of the two candidates and not a stalemate with no one left clearly in charge. We can still take comfort in what Winston Churchill famously said in the House of Commons in 1947 - that democracy is the worst possible form of government except for all of the others which have been tried.

I want to talk for a few minutes about two really strange Presidential campaign years. You all remember 1968. After the meltdowns (police, Mayor, protestors) at the August Democratic national convention at the Amphitheatre in Chicago, Richard Nixon (1913 – 1994) as the Republican candidate fairly narrowly defeated Hubert Humphrey (1911 – 1978). Nixon took 43.4% of the popular vote to Humphrey’s 42.7%. George Wallace (1919 – 1998) received almost ten million votes for a total of 13.5%. Because he had a majority of the electoral college votes (301), Nixon’s constitutional victory was not in dispute. I was caught up in some of the street demonstrations that summer just walking to and from work as a young lawyer. Crossing Michigan Avenue from the IC Metra Van Buren Street Station, I recall gingerly stepping by armed and obviously nervous young National Guard soldiers. On another occasion I jumped out of the way of thundering crowd of oncoming protestors fleeing west from Michigan Avenue with Chicago police in close pursuit. What I remember are the crazed fearful eyes of both the protestors and the police. 1968 had already been a year of continuing tumult following the 1967 urban riots in Detroit, Chicago, Newark and Los Angeles, with the assassinations of Martin Luther King in April and Robert Kennedy in June. I felt I was back in the midst of revolutions in Africa where I had recently completed service in the U S Peace Corps and was still readjusting to life in the United States, a very different country from the one we had left a year before the Kennedy assassination. In 1968 the issues of contention were not the economy and terrorists (as today) but the Vietnam War, the draft and the civil rights movement.

Nixon was just such an enigmatic man. He tried to address the issue of the draft and so-called draft dodgers by establishing the draft lottery in 1969. But the War and draft resistance continued. America had been strong adversaries of Communist China since 1945, a process which Nixon and Kissinger abruptly altered in the wake of their visit to China early in 1972. Although nominally a free enterprise Republican, Nixon in 1971 imposed the first wage and price controls since World War II. Then came the 1972 Presidential campaign and CREEP. Do you remember the Committee to Re-elect the President? Democrats for Nixon? The Watergate break-in? A song titled - We’re Haldeman, Erlichman, Mitchell and Dean --- Why are you people being so mean?

The Democrat team selected to oppose Nixon and Agnew in 1972 was Senator George McGovern (1922 – 2012) of South Dakota and R. Sargent Shriver (1915 – 2011) of Maryland. Ed Muskie (1914 – 1996) of Maine was the leading candidate before an emotional episode ruined his chances; Tom Eagleton of Missouri was the convention choice for Vice President, but he stepped down after disclosure of a history of psychiatric treatment. I was enthusiastic about the McGovern/Shriver ticket for three reasons: 1. they were Democrats; 2. they wanted to end the War in Vietnam sooner, not later; and 3. Sarge Shriver had been my first post law school boss as head of the Peace Corps. McGovern was castigated as a throw in the towel peacenik, but his credentials as a warrior (35 combat missions as a B-24 pilot over Europe in World War II) and a Distinguished Flying Cross were pretty good. Beyond that he had a PhD in history from Northwestern University and had turned away from the Methodist ministry for a life in politics.

I now turn to mid-October 1972, just before the Presidential election. I had become a partner in the Chicago law firm of Leibman, Williams, Bennett, Baird and Minow in 1970, after joining the firm in 1965 fresh out of Africa and the Peace Corps. On October 15 the partners and associates of the 45 lawyer Leibman firm (as it was called) were advised that we were consolidating with the venerable and significantly larger 75 lawyer Chicago firm of Sidley and Austin. This was the rough equivalent of merging the Council of Elders of the Presbyterian Church with the Blues Brothers Band. Some in both firms and others felt it was a bad idea at the time. It has proved to be probably the most successful merger ever of two substantial groups of professionals thanks to the vision of superb leaders then and now. Our leader, Morris (Morry) I. Leibman (1911 – 1992) told us the name of the continuing firm would be Sidley and Austin and (with a smile) that he had filed papers necessary to change his name to Morris I. Sidley.

Morry Leibman was practically the poster child for Democrats for Nixon and the CREEP organization in Illinois. All of this was tied to his long association with the American Bar Association Standing Committee on Education Against Communism or the ABA Committee on Law and National Security as it was later and is now titled. This led to and his close association with like-minded people in Washington and the Pentagon, notably including General Alexander Haig (1924 – 2010) who served as Nixon’s Chief of Staff after H. R. Haldeman left in 1973. Several years later in 1981 Morry Leibman received the Presidential Medal of Freedom from President Reagan in recognition of his long service and dedication to the security of the country he dearly loved.

So here we are – two weeks before the 1972 election with this momentous law firm merger, and I am virtually the only kid on the block wearing a McGovern/Shriver campaign button. I was such a curiosity that some of the older Sidley partners actually sought me out by coming to my office to peer at me and ask how I had come to such a strange political stance. It was as if they had an alien in their midst, which in many ways I was. I had some Democrat friends at the firm but they were not much in evidence, and while I did not think a simple lapel button was such a big deal, others did. I may also have had a McGovern/Shriver bumper sticker on my office door, which was very bad form in my new cloister. The election came soon, and as you know it was a wipe out. Nixon took more than 60% of the popular vote and 520 electoral votes. McGovern carried only Massachusetts and the District of Columbia. But the story was not over. As a later bumper sticker stated: Don’t Blame Me – I’m From Massachusetts.

Watergate. It just wouldn’t go away. Newspaper reports. Congressional hearings. Subpoenas. Rumors. Special prosecutor Archibald Cox (my first year law school professor). Court proceedings. Judge John J. Sirica. Resignations. Firings. The Saturday Night Massacre. The start of impeachment talk and proceedings. 1973 and 1974 turned out to be years of never ending political turmoil. Morry Leibman was now making even more frequent trips to Washington. One morning he telephoned our law firm partner, Newton Minow, and said: “General Haig wants me to take over as the President’s chief counsel and manage his legal team.” To which Newt responded: “I don’t think you should do that. You can offer counsel and advice without having an official position.” And then Morry said: “There’s another problem they don’t know what to do about. Apparently they have some kind of taping system here in the White House and news about it is likely to get out soon. That will just lead to more subpoenas and legal proceedings.” Newt said: “Let me think about that and call you back.” A few minutes later he called Morrie back and said in substance --- “A lawyer, priest or doctor is permitted to have confidential and protected communications with clients, parishioners or patients; and a President can similarly take confidential advice and counsel from and consult with whomever he chooses. But the law does not require that taped records of Presidential conversations be made or retained. Why not just get rid of the tapes?” Morry relayed this to General Haig who said something like: “Makes sense. I’ll check with the President.” A few minutes later General Haig came back: “The President says ‘Absolutely not! Those tapes will be my ultimate vindication!”

One morning in the summer of 1974 I met a tired-looking Morry Leibman outside our offices and we rode up together in the elevator. “Tough times,” I said. “Chapter 18,” he replied. I looked puzzled. Morry said Chapter 18 is when a Chapter 11 reorganization and a Chapter 7 liquidation proceeding are not enough; you add them together and you are still hopelessly bankrupt. News of the tapes became public in July, 1973. After much legal wrangling in the following months the U S Supreme Court ruled 8 – 0 in late in July, 1974 that the tapes were not protected by claims of executive privilege and must be made available to the special prosecutor and to Congress. Within a few days, on August 8, 1974, Nixon resigned the Presidency. It was time for Gerald Ford (1913 – 2006) and WIN (Whip Inflation Now) buttons, but that’s another story . . . ..