Decision (14 page)

Chapter 7

The next few days went fast for the Court and its member-designate. In the marble edifice where it could be said, as the late Associate Justice Van Devanter once did say, “We look like nine black beetles in the Temple of Karnak,” the term began to move into high gear as it neared its finish. Of the approximately 5,000 cases that had come up to them since last October, more than 4,300 had already been disposed of. By diligent overtime and ruthless selection, they had managed to winnow the number granted certiorari to 203, some few major, most relatively minor, but all bearing on some point of clarification or precedent. Now they were down to a handful. The end was in sight.

They were able to congratulate themselves, as they often rather smugly did, that despite the steady growth in the number of cases in recent years, it still took only nine Justices and a staff of no more than 350 to run their entire co-equal branch of the government, whereas the Executive bureaucracy remained well over 3,500,000 and in the Legislative Branch the 100 Senators and 435 Representatives felt they had to have more than 50,000 staff members to assist them.

The Supreme Court was a tidy operation and the Chief and his sister and brethren prided themselves upon the fact and took pains to see that it remained so. “You have to have space to think in this job,” Clem Wallenberg put it; and they surrounded themselves with it and preserved it jealously. Small, concentrated, powerful: they felt their impressively small size was part of their impressively enormous authority.
Multum in parvo—
much in little. It was a nice feeling.

So things moved forward briskly at the Court toward the conclusion of the term. A block away along First Street, in the Everett McKinley Dirkson Senate Office Building, the Senate Judiciary Committee also moved forward with its hearings on the nomination of Taylor Barbour of California to be Associate Justice. The chairman, Senator Henry Randall of Virginia, started things off with a courtly and emphatic endorsement, echoed by equally glowing statements from four of his colleagues and approving nods from several others. The burden of proof was obviously going to be on Tay’s opponents, if any. In the face of his evident good faith and integrity they did not get very far.

It was established very quickly that he was not a “Cadillac liberal,” nor a “headline liberal” nor a full-page-ad-in-the-
New-York
-
Times
liberal: he was the genuine article, going back philosophically to Woodrow Wilson, Hiram Johnson, the La Follettes, Burton K. Wheeler, Justices Holmes, Brandeis, Cardozo, Douglas—the “old-fashioned” liberalism rooted in the very fabric of American democracy, springing from the earth of the plains and the slums of the cities. No opposing testimony was able to dim this fact.

The hearings concluded after three days and twenty-three witnesses, eighteen of whom were favorable and only five opposed—and they, as Senator Randall remarked to him in a wry private comment, “from the outer fringes of anti-abortion, female subjugation and Love God, God damn you.” Tay used the occasion to put his personal and public philosophy on the record in words no one could misunderstand or misinterpret.

“I believe in the law,” he told the friendly committee and overflowing Senate Caucus Room audience. “In fact, I love the law…

“I have given a lot of thought in the past three days as to where a truly dedicated Justice of the United States Supreme Court should stand on all the many issues that come before him—or her—and it seems to me that the stand should be somewhere in the intelligent, balanced and reasonable middle. If one has to categorize me, as a few here have attempted, I suppose it is fair to say that I am ‘liberal’ in what I hope is the most reasonable and sensible meaning of that term.

“I would like—” he said, and paused. For some reason he was suddenly conscious of Cathy, seated behind him at the press table. They had greeted one another quite casually—perhaps too much so, on both sides—when he had entered the room this morning.

“I would like to give you my concept of what real liberalism is, and how a true liberal acts. Those are words which, like ‘conservatism’ and ‘conservative,’ in recent decades have become so debased by many people that they have become simply slogans, essentially meaningless. But there was an original and good meaning for all of them, and I hope I have always remained true, and always will remain true, to that original meaning.

“Within, that is, the American context. There are some forms of liberalism, or so-called liberalism, that are a long way from our generally mild home-grown variety. Them I condemn and oppose, always have and always will.

“It seems to me that American liberalism, in its truest and finest form, is a belief that society does have an obligation to assist the less fortunate; that it does have a responsibility in such areas as an adequate education; readily available, inexpensive health care; a floor under wages; the right of unions to organize and protect their members subject to the privileges and restraints of reasonable law—and that making people healthier, happier, more educated, more productive is only basic common sense and is the surest way to guarantee the security and growth of the nation.

“There are degrees in all these things, and I suppose the dividing line between ‘liberals’ and ‘conservatives’ probably comes, or should come, not on objectives but on degree. I am sure that basically all Americans believe in these things. It is only the question of how far and how fast government should go in trying to achieve them—or whether, in fact, government should intervene at all, but rather should leave their achievement to the so-called ‘natural laws’ of a free society and a free economy.

“It is at that point, Mr. Chairman, that I part company with the more conservative of our conservative friends. I believe government has not only the right but the obligation to intervene, and I think its interventions, subject to common sense and common democracy, are good. I think that was decided once and for all in
McCulloch
v.
Maryland
in 1821, when the Marshall Court declared that the Constitution comes from the sovereign hand of the people and can, virtually without restriction, ‘be adapted to the various crises of human affairs.’

“You remember the basic dicta:

“‘The government comes directly from the people.’ It is ‘a government of the people.’ It ‘represents all and acts for all.’ It is ‘supreme … and its laws form the supreme law of the land.’ Since it is given powers to secure ‘the happiness and prosperity of the nation’ it ‘must also be entrusted with ample means for their execution.’ At the same time, ‘The powers of government are limited,’ and its limits ‘are not to be transcended.’ Yet these must not be overly restrictive: Congress has the power to perform the duties assigned to it ‘in the manner most beneficial to the people.’ If the end is legitimate, it lies within the scope of the Constitution, ‘and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.’”

He paused, smiled and shook his head admiringly.

“John Marshall was a
very
clever man.”

Henry Randall smiled back.

“You’re no slouch yourself, Mr. Secretary. Anyone who can quote
McCulloch
v.
Maryland
with that exactitude—”

“Mr. Chairman,” Tay said, “I have read and re-read that case so many times over the years, seeking support for my own convictions and the warrant for what I wanted to advocate and do both as private citizen and as public, that I could almost recite it backward in my sleep. I’m not so sure Chief Justice Marshall understood it as ‘liberal’ in the context in which we would use the word today, but that’s the end effect.…

“So I think the mandate for a traditional style of liberalism is well rooted, and I make no apologies for having adhered to it throughout my career. Mine is not a far-out liberalism: it is really quite a conservative liberalism, if I may state it so. But it
is
liberal, and I am not ashamed of it.”

He sat back, pleasant, calm and self-possessed, graying, handsome and distinguished; already, in mind’s eye, seeming to wear the flowing black robe. There was a heavy burst of applause, the hearing ended with handshakes all around. Henry Randall announced that the committee would go into closed session in five minutes to vote on the nomination, emerged smiling fifteen minutes later to report that they were recommending confirmation to the Senate by a vote of 13‒3. Over on the Senate floor the Majority Leader announced that the final vote would come immediately after convening next afternoon. When it did it was 89‒9. Some Supreme Court nominations had held their surprises. His, as Wally Flyte and Rupert Hemmelsford had accurately predicted, was not among them.

In fact, it was quite universally hailed, even by those journals that might have been expected to have misgivings. His supporters fell dutifully into line. The
New York Times,
the
Washington Inquirer,
the
Los Angeles Times,
the
Chicago
Sun-Times, Newsweek, Time,
most of the political columnists and TV commentators praised his character, his integrity, his fairness, his legal knowledge, the earnest and honest liberalism of his public career, his even temperament which, the
New York Times
said, “ideally equips him for the high and sober office to which he has been appointed.” (Clem Wallenberg passed a note to Wally Flyte when they were on the bench hearing arguments: “I didn’t know we were
that
sober.” Wally shook his head in mock reproof and the arguing lawyer, an earnest young man from Wisconsin presenting his first case before the Court, interpreted it as a personal reflection, flushed, lost his place and had to start his sentence all over again.)

Even the more conservative columnists and commentators managed to find a lot of good words to say.

“We don’t altogether like Taylor Barbour’s politics,” one summed it up, “but no one can deny his excellent character and likable personality. He is known to Washington as a good, able and honest man; and he may yet turn out to be a far more middle-of-the-road Justice than his supporters confidently assume. It would certainly not be the first time this has happened on the Supreme Court.”

Back in his office, after he had said farewell to the Labor Department’s employees massed in the building’s courtyard, he received in rapid succession calls from the President, “Very pleased and confident that you will do a great job in helping to keep the Court on the right track,” which he answered with noncommittal gratitude; from his daughter, who squealed with excitement and shouted, “I love you, Daddy! I think you are just the
greatest!”
to which he responded, “I love you, too, baby. I’ll try to make you proud of me,” and was answered, “Oh,
Daddy!”;
from his wife, who said only a brief “Congratulations, Tay. I know how much you wanted it and I’m glad for your sake that you’ve got it,” to which he replied gravely, “Thank you, Mary. I appreciate your good wishes”; from his parents and Erma Tillson, with whom he both laughed and cried; and, toward the end of another long and hectic day, a call to which he responded—how? He was not altogether sure, thinking back a few minutes later. During the afternoon he had argued himself so convincingly out of the hope that it would come and had been so pleased when it finally did come that he could not recall exactly how he did respond in the first few moments.

“My
goodness,
you’re a hard man to get through to,” she said with a laugh, not bothering to introduce herself, assuming that of course he would know who it was. He did.

“Oh,” he said stupidly. “Have you been trying?”

“I certainly have. I’m up in the Senate Periodical Gallery and I’ve been trying to reach you ever since the vote. Everybody in the world seems to be on your line. May I be the last to congratulate you?”

“Anytime,” he said, beginning to recover a little but still in some pleasant confusion. “Anytime. How nice of you to think of me.”

“For heaven’s sake,” she said with a chuckle. “How could I not think of you? You’re the biggest news in Washington today. We don’t get a new member of the Court every day, particularly not such a fine, noble, upright—”

“All right, now,” he said, feeling himself in control again and beginning to adopt an equally light tone, “let’s have a little respect for your elders, if you please.”

“Not so elder,” she said, and for a second the lightness slipped a little. “Not so elder at all. Anyway, I think it’s just great. I know how much you’ve wanted it, and I think it’s just great that you’ve got it. Not that there was ever any doubt, but I know what it means to you and I know how pleased you and your family must be.”

“They’re delighted,” he said, and he knew her call really was prompted by genuine goodwill when she let it pass and did not immediately inquire, “Including your wife?” This was not a call from Cathy Corny the Demon Reporter, he told himself wryly, but with an inescapable little thrill of excitement. This was Cathy Corning the—what? He decided rapidly that he would be very well advised to settle for “friend” and let it go at that.

“So what have you been up to since I saw you last?” he inquired, making his voice more impersonal.

“Exactly one week, two days, nine hours and twenty-one minutes ago,” she said with a little laugh that was not so impersonal. “Haven’t you been keeping track? I have.”

“Certainly,” he said with mock gravity, “but I make it one week, two days, nine hours and
twenty-seven
minutes. It seems like forever.”

She laughed again.

“I’ll bet. I’ll bet you haven’t thought of me once in the past week, with all that’s been going on.”

“Oh yes I have,” he said quickly; too quickly, probably, because her tone became instantly more serious.

“So have I. Really. I’m not kidding you. I’ve thought about you quite a lot.”

He hesitated for a second—thought bleakly,
What else is there?—
rushed on.

“It’s been quite constant with me. I’ve wondered how you were coming with the interview—”