Today in Supreme Court History: August 5, 1974

8/5/1974: Shortly after the Supreme Court decided United States v. Nixon, President Nixon released the "smoking gun" tape recorded in the Oval office.

President Richard Nixon

Comments

[Dan Schiavetta]

Davis v. Adams, 400 U.S. 1203 (decided August 5, 1969): Black upholds stay of Florida statute requiring incumbents of state office to resign that office before running for federal office; Black notes that there is not enough time before election for full Court to rule but believes that it would hold that Florida cannot add qualifications to candidates for federal office (the Court never ruled on the question, but the “resign to run” statute is still in force, with an exception for federal office, see https://www.votepinellas.com/Candidates-Committees/Candidates/-Resign-to-Run)

Scaggs v. Larsen, 396 U.S. 1206 (decided August 5, 1969): Douglas holds that habeas corpus can be invoked by serviceman who claims that his term of duty was unfairly extended (he was penalized for not reporting for training but he was for some reason not permitted to attend); orders him released; 9th Circuit later affirmed conviction (without opinion) and cert denied, with Douglas dissenting

[Dilan Esper]

I assume the import of US Term Limits v. Thornton is that Black was right and a state can't add additional ballot qualifications for federal office.

[Dan Schiavetta]

I agree with your analysis.

I also think it's the correct view. How the States pick the representatives they send to Congress should be uniform; this gives each member, conceptually, equal weight as a representative of "the People". Further qualifications (e.g., aside from being 30 years old) should be done only via federal law applicable to all members.

[Martinned]

I agree with the principle, but not with how you apply it. Based on captcrisis's summary, it sounds like Florida imposed a requirement on *holding* a *state* office, not a requirement on *running* for *Federal* office. And imposing a requirement on holding state office, in this case: that you can't do it while running for Federal office, seems perfectly within the powers of the state.

(If you want to see an example of that happening, Frans Timmermans, the Executive Vice-President of the European Commission, is about to resign because he's running in the upcoming Dutch election. And members of the European Commission can't run for office without relinquishing their jobs, or at least taking a leave of absence. Dutch law doesn't care, under Dutch law you can hold any job you like except judge while you run for parliament. But Timmermans's current employer doesn't want him combining his current job with running for another one, and that seems fine.)

[David Nieporent]

I assume the import of US Term Limits v. Thornton is that Black was right and a state can’t add additional ballot qualifications for federal office.

But a state can impose criteria for being a state officeholder. A state can provide that qualifying for a ballot for another office constitutes automatic resignation from a state office.

[Neugierige]

Yes. And states have, in fact been imposing such qualifications for more than 200 years.

[Neugierige]

Thornton’s bound to fall. As it should.

We've never laid down a national rule to that effect.

[Syd Henderson]

"The “resign-to-run law” essentially prohibits an elected or appointed “officer” from qualifying as a candidate for another state, district, county or municipal public office if the terms or any part thereof run concurrently with each other, without resigning from the office the person presently holds."

So if this law were in force in Georgia, Kemp apparently still could have run for governor while being Secretary of State. I'm still a bit pissed at that since he it meant he was supervising an election he was running in. That said, he does seem to be a decent governor.

[Dan Schiavetta]

It doesn’t seem that unusual to me. I remember Lloyd Bentsen running for re-election to the Senate in 1988 at the same time he was running for Vice-President under Michael Dukakis on the Democratic ticket. Other examples, which I can’t pull up right now.

A modification to the resign-to-run law was signed into law by DeSantis a few weeks ago. It allows him to run for President without having to resign as Governor.

[Mr. Bumble]

Harris in 2020.

[Dan Schiavetta]

Harris was not running for reelection to the Senate. She simply resigned her Senate seat when she got in as Vice-President.

The other example I remembered was LBJ in 1960.

[Syd Henderson]

Kemp wasn't running for both offices at the same time, but those other cases are a bit odd.

[F.D. Wolf]

It is unusual to allow someone to run for two offices, as he, obviously, could not assume both. In 1959, the Texas legislature passed such a law so Lyndon Johnson could run for both the Vice Presidency and the Senate. As you note, this same law would later allow Lloyd Bensten to do the same. Such laws are sometimes referred to as "LBJ laws" or "Lyndon laws".

[Dan Schiavetta]

Thanks

[F.D. Wolf]

Joe Lieberman (2000), Joe Biden (2008), and Paul Ryan (2012) also ran simultaneously for Congress and Vice President.

[Dr. Ed 2]

What would have happened if Nixon had simply burnt the tapes for “National Security” reasons?

Particularly before it came out that they existed, maybe getting Kissinger to support it.

[Mr. Bumble]

He didn't and we'll never know.

[Frank Drackman]

Nobody would have believed that weasel John Weasely Dean

[Magister]

He might have served out his second term, or other evidence might have been sufficient to force his resignation. In the first case, he was term limited, and 1976 would have seen Reagan versus Vice President Ford for the Republican nomination; Ford wouldn't have the advantage of being an incumbent president or the disadvantage of having pardoned Nixon, which might be a wash. And Carter might still have prevailed in 1976 even without Nixon resigning in disgrace, and then everything else would have been the same -- all Republicans learned from Watergate was to maintain plausible deniability.

[Frank Drackman]

There's a tape from April 1973 where Milhouse ordered Haldeman to do exactly that, unfortunately for Milhouse, the usually efficient Haldeman dropped the ball. (Great Comedic moment in the tapes, later after he was fired, H.R. (Harry Robbins) Haldeman returned for a secret meeting with Milhouse, who greeted him with
"Hello Robert" (Haldeman went by "Bob" I guess because of his middle name, but nobody but the Wingtips-on-the-Beach Tricky Dick ever called him "Robert"

Frank

[Dan Schiavetta]

today's movie review: Coming to America, 1988

Eddie Murphy as an African prince visiting America to find a suitable princess. James Earl Jones and Madge Sinclair as his parents, Arsenio Hall as his aide who accompanies him, Shari Headley as the girl and John Amos as her father.

So many great bits in this movie -- Rev. Brown (Hall again) as a loud preacher in front of bikinied beauties, Murphy (under heavy makeup) as a Jewish tailor in that barbershop scene, Amos as the owner of "McDowell's" (a thinly-disguised McDonald's) on Queens Boulevard, with his new-money household (e.g., the black version of the famous "A Bar at the Folies-Bergere" painting), the movie being proudly set in Queens, its sendup of Jheri curls (I remember those -- ewww!!!) . . .

I saw this with my (black) girlfriend at Whitestone Cinemas in the Bronx with (except for me, as far as I could tell) an all-black audience, and they guffawed like no audience I ever heard, particularly at the end when Jones shows up at their apartment and Hall has to give up his pretensions. Afterwards I realized was this was not an Eddie Murphy movie (in fact the story was stolen from Art Buchwald, who then sued). How did I know that? Because it was good-hearted, it had strong, sympathetic female characters, gave time to an ensemble cast, and Murphy's character was complicated, vulnerable. There were no "bitches" or "ho's", no profanity, no drugs being dealt, nobody getting shot at.

As someone put it early on, "Eddie Murphy has no soul." Profanity was his punchline. There was no self-doubt in his material, no depths like what we saw with Richard Pryor or Dick Gregory. The subtext of his humor was that black people really are thugs and thieves, and the joke was on white people for daring (or pretending) to think otherwise. (You might remember his recent "comeback" skit on SNL.) How black audiences reacted to that, I don't know. It was certainly a hit with white folks, who probably thought they were getting a taste of "real" blackness.

All I know is this non-Eddie Murphy movie was a big hit with the Whitestone Cinemas crowd.

[SRG]

IIRC Art Buchwald won, was awarded 5% of the net, and then went back to the judge to vary the award because at the time of the decision, the film had grossed $300mm and still hadn’t turned a net profit according to the accounting. The judge remarked, when awarding Buchwald a percentage of the gross, “no-one had explained film financing to me before”.

The general rule for producers is if a film has made a large net profit, you’ve screwed up. The whole idea is to retain as much of the gross profits as possible to producers and other “insiders”, leaving just enough profit to return to outside investors to keep them happy but not ecstatic. Years ago an actress friend of mine proudly said that she’d been cast in some horror film and had a share of the profit. “Gross or net?” “What’s the difference?” “Then you’ve been given a share of the net. You will not receive any money from this film aside from the weekly minimum.” And lo! it came to pass…

[Dan Schiavetta]

To return to Churchill (briefly): After he got really old his aide Anthony Montsgue Browne managed his affairs. As Browne pointed out in his own memoirs, in negotiating film and (speech) recording rights, he quickly learned to talk gross earnings and not net earnings, “which have a way of melting into nothing”.

[Magister]

I think Murphy had moved on from "profanity was his punchline" for movies by the time this one came out. He'd already done Trading Places, Beverly Hills Cop (and its sequel) and The Golden Child before Coming to America, and established a movie persona who trash talked and bent all the rules but had his heart in the right place (which may be exactly what white audiences wanted for black characters).

[Dan Schiavetta]

I hope you're right.

I was so turned off by his early work that I shut him off, only going to see Coming to America because we wanted to go out that night and the other choices (I forget what they were) seemed worse.

[Magister]

Trading Places was quite good; Randolph and Mortimer appeared briefly in Coming to America.

I particularly liked Boomerang; a setting of successful black-run businesses was seen by some critics as science fiction, and maybe that was part of the appeal for me.

He had good performances in a number of quite mainstream later movies (he played Dr. Dolittle!), and you shouldn't let his early work put you off all his movies.

[SRG]

Trading Places is excellent, with a ton of great lines.

Aside: the producers approached the CME and asked them whether they could film there. The CME said NFW. They then approached the NY Coffee, Sugar and Cocoa Exchange who not only welcomed them but happily supplied them with extras.

[Frank Drackman]

"(Black) Girlfriend"??
not sure why that was reverent.
Hey, some like the dark meat, some like the white meat, it's all chicken in the end!

Frank

[bernard11]

It's always seemed a little strange to me that you can run for one office while holding another. (Though, IIRC, Huey Long was both Governor of LA and a Senator from the state at the same time.)

Doesn't that sort of detract from your ability to actually do your job in the office you hold, the one you are drawing a salary for?

I guess at some point it becomes a practical impossibility to require candidates to resign their current office, but that doesn't change the facts.

[Mr. Bumble]

Politicians are notable for being able to defy time and space and hold multiple "full time" jobs at once especially at the local levels of government.

[Magister]

The offices discussed are hardly full time. And as with electing someone with various felony convictions, electing someone with a record of not working hard at their previous job is up to the voters.

[bernard11]

The offices discussed are hardly full time.

Do they pay part-time salaries?

[Mr. Bumble]

...and not provide health insurance or pension contributions?

[Magister]

The ones I like are underpaid, and the ones I don't like are overpaid.

[Dan Schiavetta]

If I was JFK in 1960, or Dukakis in 1988, I would have made my running-mate withdraw from his re-election campaign for the Senate.

[Magister]

If anyone had taken Bush and Cheney both being from Texas seriously and we'd ended up with Bush as president and Lieberman as Vice President, it would have cost Democrats the initial 50-50 split in the Senate (with a Republican governor in Connecticut to appoint his replacement in the Senate), albeit with the Vice President's tie breaking vote.

[Dan Schiavetta]

I think the entire Bush-Cheney ticket would have been invalidated, not just the dropping of Cheney.

(As Jay Leno pointed out, it didn't matter if they were from the same state, because they were from different oil companies!)

[Syd Henderson]

It would have affected only the electoral votes from Texas. Which would have cost either Cheney or Bush the election. It's legal for an elector to vote for two candidates from the same state if it isn't his state too..

[Magister]

The rule is that Texas electors could not vote for a presidential candidate from Texas and a vice-presidential candidate from Texas, because of Article II "The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves" which was preserved in the 12th amendment "The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves". So Lieberman's 267 electoral votes would win the vice presidential vote if Cheney could not get electoral votes from Texas. (More likely Republican electors would have uniformly voted for a different vice presidential candidate if Cheney had been declared to be an inhabitant of Texas.)

[F.D. Wolf]

267 votes would not have won Lieberman the Vice Presidency, because that would fall short of the majority of appointed electors. So, per the Constitution, the Senate would select the Vice President form the top two vote getters (Lieberman and Cheney). (That would have been the incoming 50-50 Senate, which included Lieberman).

[Magister]

OK, but wouldn't Al Gore as Vice President have been able to cast the tie breaking vote?

[F.D. Wolf]

That is a good question. The Twelfth Amendment says:

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

"A majority of the whole number shall be necessary" seems to suggest that the VP would not have a tiebreak vote. I.e., with the current 100 senators (assuming no vacancies), the vote of 51 senators would be necessary.

[David Nieporent]

I think the entire Bush-Cheney ticket would have been invalidated, not just the dropping of Cheney.

Nope. It's a common mistake to think that the Constitution bans a pres/veep combo from the same state. It does not. Both Bush and Cheney could've won; the ticket would never be "invalidated."

What the constitution says is that an elector from state X cannot vote for both a president and veep from state X. Therefore, if Cheney were from Texas, they could not both have received all of Texas's electoral votes. If the election isn't close, it doesn't matter. But here, because the margin was (far far far) closer than Texas's sum, if one of them had not done so he would not have been elected. Presumably all the Texas electors would've voted for Bush, and therefore they'd have had to vote for someone other than Cheney for veep.

Note that this does not mean that Lieberman would've been elected! One needs an absolute majority, not plurality, in order to be elected. Thus, if the above scenario had come to pass, it would've been thrown into the Senate (the presidential race goes to the House; the vice presidential to the senate), where the senate would've had to choose between the top two vote getters.

Now, here's where it gets even sillier: the senate was tied after the 2000 elections! So in theory they could've deadlocked, leaving the vice presidency vacant, and then Bush would have to nominate someone pursuant to the 25th amendment. (But all it would've taken to avoid that is for one of the 50 Democratic senators to say, "This is dumb; Bush is president and I'm not going to try to force a Democratic vice president on him.")

[David Nieporent]

Or I could've scrolled down before posting and seen that Wolf covered this.

[Dan Schiavetta]

Strange.

In an ordinary democracy, Gore (with the most popular votes) would have won the Presidency by over half a million votes, and the Senate (apportioned by population) would have been solidly Democratic. People around the world were shaking their heads at what happened with our silly system in 2000 and as an American I was embarrassed.

[SRG]

That kind of anomaly can happen in parliamentary systems with individual constituencies, as well. It's happened in Britain more than once.

[Mr. Hook]

In the last two Canadian federal elections, the Conservatives won a plurality of votes, but the Liberals had a drastically superior vote efficiency, especially in seat-rich Ontario, and won strong minorities each time. So, yeah, even parliamentary systems.

[Mr. Bumble]

capt. Not strange. It’s the system we’ve chosen and for the most part has worked well. When there’s been a problem, well, shit happens but to date we’ve survived.

[Frank Drackman]

Lieberman would have been a decent POTUS, at least compared to the usual DemoKKKrat gang of idiots, and he was born the same year as Parkinsonian Joe.

[Frank Drackman]

If I was JFK I'd have made sure a certain ex Marine Roosh-un Defector (Jeez, sometimes it would have been better to keep actual Amurican Citizens from coming here) was locked up at Alcatraz.

Frank

[Jerry B.]

A little deflection from the Washington Post.

https://www.washingtonpost.com/opinions/2023/08/04/ivanka-trump-jared-kushner-corruption-return/

[hoppy025]

https://www.cnn.com/2023/08/04/politics/trump-truth-social-smith-evidence-2020/index.html

This angry black shows her bias against Trump and every J6 defednant.

https://www.cnn.com/2023/08/05/politics/giuliani-lawsuit-2020-election/index.html

This judge is a moonbat Jewish liberal who was married to a black.

Why either of these two savage degenerates are allowed to hear any cases involving conservative white men is a mystery to me.

[Dissojudge]

What happened to the pictures that accompanied your Today in Supreme Court History posts, at least on The Volokh Conspiracy emails? They certainly add to your posts. Please bring them back.

Thank you.