Justice for All (3 page)

Eisenhower chose Nixon as his running mate in 1952, but that was to achieve balance on his ticket; Nixon's youth was a prime consideration. In Warren, the president thought he saw more of himself. They were big men with heavy handshakes and open faces, comfortable outdoors and at ease with themselves, capable extroverts who liked to lead. They did not know each other well, but they appreciated each other. So it was natural that the new president should seek a place in public life for Warren. In the months of early 1953, the two discussed in person and over the phone Warren's possible place in the administration. The president came away impressed, he wrote later, “that [Warren's] views seemed to reflect high ideals and a great deal of common sense.”
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Eisenhower passed over Warren for his cabinet but instead proposed finding a spot for him on the Court—the first vacancy, both recalled, and Warren remembered Eisenhower offering that as “my personal commitment to you.”
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But the president also suggested the idea of Warren serving as solicitor general until a vacancy arose. During the second of two visits to the White House in 1953, Warren explored the solicitor generalship with Brownell and Eisenhower, and was offered the job. The position was appealing in some respects: It gave Warren the chance to return to the courtroom and would groom him for a Supreme Court appointment when one arose. And yet it would be, by most measures, at least a temporary step down. Warren had twice sought the presidency, and had come within a hair of winning the vice presidency on the ticket with Dewey in 1948. Serving as solicitor general would take Warren well away from a limelight to which he had grown accustomed. Then there was the money: Although the solicitor generalship paid $25,000 a year, the same salary he was earning as governor, the governorship came with a house and car, neither of which was provided to the nation's chief lawyer. In effect, this would be a pay cut. Warren had spent virtually his whole life working in government. Since he had six children and no real savings, the issue of money weighed heavily on the governor.

But Warren had to wonder about his options. He was already in his third term as governor, and his ambitions for the presidency had been thwarted. A Republican was in the White House, and it was not Warren. A seat in Congress had little appeal to the longtime chief executive, private practice no draw for a man who believed implicitly in the value of service to others. As Earl and Nina traveled through Europe that summer, the two grabbed moments alone to discuss the offer and the future of their family. In the end, they realized they could not refuse, and Warren wired Brownell in the code the two had devised: “Thanks for message. Stop. Have been refreshed by trip. Stop. Looking forward to my return to work.” Brownell consulted with Eisenhower, then responded, “We are both gratified to receive your cable.”
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Warren then returned to California and, knowing that he had an offer in his pocket, announced that he would not seek another term as governor. “I will not be a candidate for the governorship next year, and the people of California should be the first to know that fact in order to have ample time for the selection of my successor,”
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Warren told reporters. He did not say that he had accepted the job of solicitor general, leaving that for the Eisenhower administration to announce.

And then, before that announcement could be made, Vinson died. Just as suddenly, the equation changed, for while Eisenhower had seen Warren as a solid replacement for a New Deal liberal, as one of nine justices, he had not considered him for the Court's lead role, especially so soon. The machinations began again. In their earlier conversations, Eisenhower had seen Warren's gentler attributes; now he would learn another aspect of Warren's character. Warren was a stubborn man.

When Vinson died, Warren struck a pose of public reserve, while at the same time moving to claim the promise he felt was his. The governor typically met with reporters on Tuesdays, but Warren canceled the event that week. He had no desire to field questions about the death and its implications for him.
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Instead, he publicly released a statement lamenting Vinson's death but never mentioning himself as a possible successor. That allowed Warren to proceed with dignity, and it disguised, as it often had before and would in the future, his keen determination. For while Warren maintained public silence, he bluntly pressed the White House behind the scenes.

Roused by Cavanaugh that morning, Warren turned his friend loose to contain momentum for a Catholic candidate. Warren then began to work the phones. He called California's chief justice, Phil Gibson; the state's attorney general, Pat Brown; and its junior senator, Tom Kuchel. He conferred with one of his most trusted political advisers, an elegant and insightful San Francisco lawyer named Jesse Steinhart. And all through that day and the next and the next, Warren placed calls to judges, law professors, and politically connected men—Judge John Gabbert in Southern California, Professor Arthur Sherry in Oakland, Judge Paul Vallee in Los Angeles, Judge Murray Draper in San Mateo, kingmaker Asa Call in Los Angeles. These were men who knew politics and the law, men with reach to Washington. In those crucial days, as Brownell and Eisenhower contemplated their pick, Warren called in chits.

Warren was right to recognize that he needed to bring pressure on Eisenhower. Despite his promise, Eisenhower felt no obligation to Warren. The pledge, Eisenhower told Brownell, was offered for an associate justice's seat, not for the chief justice's slot. As such, Eisenhower did not feel bound by it. Indeed, unbeknownst to Brownell, the president offered the position to Secretary of State Dulles, who said he was “highly complimented by the implication that I might be suited to the position of chief justice, but I assure you that my interests lie with the duties of my present post.”
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Eisenhower may have counted on Warren's affability in trying to renegotiate the terms of their understanding. If so, he made the mistake that many others had: confusing the governor's congeniality with a lack of purpose. Warren would not release Eisenhower from his promise, continuing to maintain that he had an offer and he intended to accept. So while his friends made their calls and advanced Warren with the press and the president, Warren himself deliberately cut off communications, taking two of his sons hunting on an island off the coast of Southern California, out of reach of reporters and of White House aides interested in cutting a deal. That left Eisenhower to ponder the reaction to passing over the candidate by now seen as the leading contender. And it gave Warren time to prepare for a final round of talks with the White House.

“It was kind of a hideout,” Warren explained years later. “I didn't want to be in on the middle of all that speculation and answering questions and so forth.”
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Hurrying now, Brownell checked out the possible nominees. He peppered Warren's friends and associates with questions. “The particular question that they were asking me was whether he had really had any amount of trial work,” recalled longtime associate Warren Olney III, another of those very few who cracked Warren's public façade and grew to know him up close.
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Olney was never asked whether Warren would make a good chief justice; he figured Brownell already knew how he would respond.

On Friday, September 25, the Coast Guard tracked down Warren and his sons on their deer hunt and delivered word that the governor was urgently being sought by officials from the White House. The Warrens were eating breakfast when the Coast Guard arrived. They boarded a PT boat and raced to shore, where they were escorted to a beach house belonging to a friend and hunting partner of the governor's. There, with Earl Warren, Jr., listening in, Warren spoke with Brownell. Again, the attorney general raised the possibility of Warren's accepting another appointment. Again, Warren refused. “The first vacancy,” Earl Jr. recalled his father saying emphatically, “means the first vacancy.”
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Unable to persuade Warren by phone, Brownell flew to McClellan Air Force Base in Sacramento that Sunday, the sole passenger on the military plane. Warren arrived without fanfare, still dressed in his hunting clothes. And there Brownell tried one last time to talk Warren out of the chief justiceship. Finally and insistently, Warren held his ground, repeating his position in almost the same words that he had used in their telephone call. “Warren made it plain that he regarded the present vacancy as ‘the next vacancy,'” Brownell said later.

“So after a couple hours out at McClellan Field in one of the offices out there,” Merrell F. Small, the governor's administrative secretary, said, “Brownell went back and told Ike, ‘We're stuck with him, I guess.' ”
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The governor emerged smiling.

The announcement was Eisenhower's to make, not Warren's, so the governor kept his peace for the next day or two. With one exception. Early on the morning that his nomination was to be announced, Warren this time sought out Cavanaugh. “We made it,” Warren said. “On the bench?” Cavanaugh asked. “No,” Warren responded. “The top job.” Delighted, Cavanaugh said he'd call up the Carmelites and get them off their knees. “They've been praying for five days.”
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Warren made them wait a few hours longer, until Eisenhower made it official.

Eisenhower did so later the same day, September 30, as he told reporters of his intention to appoint Warren, confirming widespread reports by then that the nomination was assured. That Friday evening, Earl Warren addressed the state of California as its governor for the final time; he was sworn in as chief justice on Monday morning. Eisenhower and Nixon shared the front row.
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The early response was positive, though notably cautious. The
New York Times
praised Warren's intelligence, tact, and qualifications, and noted, “Nobody can know in advance what will happen when a first-class mind, of whatever previous experience, is applied to our highest constitutional problems.”
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At the
Los Angeles Times
, Warren was seen as one of that paper's own, and his appointment was cheered as “A Great Honor for California.” The staunchly Republican paper welcomed the first nominee placed on the bench by a Republican since 1932 and hoped it would begin “an upgrading of the quality of the court, which it much needs.”
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It would not be long before Republicans—at the
Los Angeles Times
, in the Eisenhower administration, and elsewhere—would learn how elementally they had misjudged Warren. Eisenhower would later harbor second thoughts about this early appointment, one that would make him responsible, at least indirectly, for some of the most revolutionary social and legal change in American history. Indeed, soon after appointing Warren, Eisenhower would instruct Brownell never again to recommend a Supreme Court nominee who did not have a judicial record upon which to predict how he might perform as a justice.
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Some would furiously denounce what would become known as the “Warren Court.” Billboards proclaiming, “Impeach Earl Warren” would dot the nation's highways, Joseph McCarthy would sneer at Warren's politics, and Congress periodically would explore ways to curb the Court's power. Others would welcome Warren and his assertive brethren as little short of salvation. John Lewis, who would go on to a distinguished career in Congress after a youth defined by civil rights protest, never forgot the day that Warren and his colleagues opened the doors of school-houses to young black children; Lewis, like so many others, felt on that momentous morning that promise long denied was now possible.

“Everything,” the fourteen-year-old boy believed that day, “was going to change now.”
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And that was merely the beginning of Warren's historic role in transforming American legal and social institutions. By the time he was through, Warren influenced his times more than any president with whom he served and became more responsible for America's sense of itself than any but a small handful of twentieth-century figures. The smiling governor of California, a mild Republican who, at sixty-two, joined the nation's high court unencumbered by a guiding ideology, would, over the next sixteen years, remake the nation's voting rights, empower criminal defendants, break down racial segregation, halt the demagogic pursuit of Communists, expand the rights of protest and dissent, embolden newspapers to challenge public leaders, and reimagine the relationship between liberty and security in a free society. Under Warren's leadership and in the face of bitter opposition, the Warren Court imported the great values of America's Declaration of Independence and the promises of its Bill of Rights into the working life of the nation. Those changes came to be regarded as a liberal high-water mark in American history, and the “Warren Court” became a deceptively simplistic moniker for a complex series of compromises that created the foundations of contemporary American society. Warren led the Court through those changes, its undisputed chief.

Today, Warren's legacy stretches across countless courthouses and interrogation rooms, city desks, classrooms, and hospital corridors. It sets the parameters of American politics and extends into the most intimate and personal moments of private life—the pained deliberations of women as they contemplate abortions, the anguished choices given to parents worrying about the education of their children, the whispered confidences of clients to their lawyers, the prayers of children, the protests of young people, the last meditations of the dying. Today's America is in many ways the America that Earl Warren made.

PART ONE

MADE BY CALIFORNIA

Chapter 1