The Passage of Power (93 page)

I
N FORMING HIS COMMISSION
, Lyndon Johnson displayed another of the qualities that had made him, to men and women who had worked for him over the years, a figure who inspired not only fear and respect, but awe: his ability that had led to his reputation as “the greatest salesman one on one,” to persuade someone to do something he didn’t want to do—to do something, in fact, that the person had been determined not to do.

The
purpose of the commission was to reassure the country, so he felt its members must be public figures whose very presence on it would be reassuring,
“men
,” in his phrase, “known to be beyond pressure and above suspicion.” When, in response to his request, Robert Kennedy suggested two names—former CIA director
Allen Dulles and a longtime adviser to Presidents,
John J. McCloy, both of them Republicans—Johnson made them two of the seven, along with three
respected Capitol Hill figures, Senator
John Sherman Cooper of Kentucky, a Republican, and, from the House, Democratic whip
Hale Boggs of Louisiana and Republican
Gerald R. Ford Jr. of Michigan, a young representative who had risen fast in the House hierarchy. But it was the two other men he wanted to appoint whose presence on the commission he considered indispensable.

Its chairman had to be not only a Republican, he was to say, but a Republican
“whose
judicial ability and fairness were unquestioned.” Although he had only a passing acquaintance with
Earl Warren, chief justice of the United States Supreme Court (
“We
had never spent ten minutes alone together”),
“to
me he was the personification of justice and fairness.” As for the other man whose presence Johnson considered essential, he was less well known nationally than the chief justice, but to Capitol Hill Richard Russell personified, in every area but race, similar attributes, and if the commission’s investigation and subsequent report should prove to be controversial, his unrivaled power there would be an effective means of keeping the controversy under control. Johnson may have been remembering, too, another investigation, one that had taken place at a time when America had been
“as
close to a state of national hysteria as it had ever been before in its history,” a crisis that in its challenge to civilian authority over the military had threatened constitutional upheaval: the controversy that had erupted in 1951 over President Truman’s firing of
Douglas MacArthur. Johnson, then a junior senator, had observed how his seniors, even those most avid for publicity, had shrunk from the responsibility of chairing Senate hearings on MacArthur; had seen how, in a time of crisis, even though the Senate’s militant liberals generally regarded Russell as the Enemy,
“that
did not prevent them from running to him for shelter.” And Johnson had witnessed the results: how the calmness and patience with which Russell conducted months of hearings—a
“firmness
, fairness and dignity” that
Life
magazine said was “almost unmatched in recent Congressional history”—had taught the country that
“things
were more complicated than they had seemed,” calming its passions in what one historian called
“a
demonstration of what the Senate at its best was capable of doing.” The intervening twelve years had done nothing to diminish the reputation of the Georgia Giant; when, during their discussions of the executive order, Johnson told Fortas he wanted Russell on the commission, the lawyer, normally reserved, burst out,
“Oh
, I would too.
Yes sir.
I’d rather have him than most anybody for anything.” He hadn’t mentioned Russell’s name himself, Fortas said, only “because I thought it would be foreordained.”

A further consideration was that a President appointing a commission or committee to investigate a controversial issue wants to have an ally on it—someone he can trust, a member who will quietly keep him informed about the investigation’s course and its findings, and about the conclusions of the report the panel is likely to issue, so that, if necessary, there can be intervention to effect an alteration in course or a change in emphasis in the report, a member who would be, in the political parlance of the day, the President’s “man” on the panel.

Richard Russell, of course, would never be anyone’s “man” on anything, yet he and Johnson had, over the years, quietly worked hand in glove on so many sensitive issues (and for similar aims: on most questions—almost all, really, that did not involve race—their views were very much alike) that the quiet rapport between them was an established element of their relationship; private discussions of the commission’s work would be only normal for them.

Nor were these the only reasons he wanted Russell on the commission. There was only one head of the table at which the
Southern Caucus met: wherever Richard Russell sat; the southern senators, so many of them powerful in their own right, looked to him for guidance on many issues, and followed his lead all but automatically. On racial issues—on the great civil rights fight to come—he and Russell would be unalterably opposed, but there would be other issues. The more of them on which he could make Russell an ally—strategizing and persuading together as they had in the past—the easier things would go for him in the Senate.

There was, however, a problem. Warren and Russell were both very strongminded men, and neither wanted to serve on a commission investigating the assassination. Indeed, each of them had made up his mind not to do so.

Warren had strongly held views about Supreme Court justices serving on what he called
“extrajudicial
bodies.” No justice, he felt, should ever do so. Every time that precept had been violated, he felt, the results had been unfortunate.
“The
service of five justices” on the commission investigating the Hayes-Tilden election
of 1876 had, he was to write, “demeaned” the Court; the appointment of Justice
Owen Roberts as chairman of the presidential commission investigating Pearl Harbor—and the resulting criticism of that commission’s report—had tarnished the Court’s august image; and he had several other examples to prove his point. During his tenure as chief justice, in fact, the justices had discussed the question, and
“I
was sure that every member of the Court was of the opinion that such appointments were not in its best interest.” The formation of a presidential commission now was undoubtedly necessary, he felt: to have several congressional investigations going on at once
“would
have been chaos.” But he was not going to serve on it. When, at Johnson’s request, Deputy Attorney General Katzenbach and Solicitor General
Archibald Cox called on him in the Court at 2:30 in the afternoon of November 29, to sound him out about accepting the chairmanship, he
“told
them,” he was to recall, that “I thought the President was wise in having such a commission, but that I was not available for service on it.” He told the two men to tell the President that if he was asked to serve, he would refuse, and, he says,
“I
considered the matter closed.”

As for Russell, one of his reasons—the emphysema that was draining his energy so that he worried, with reason, that he was not fulfilling his Senate responsibilities as he once had—was poignant. When Johnson telephoned him at his home in Winder that afternoon, and asked him to serve on the commission, Russell’s reply was
“Oh
, no, no. Get somebody else now. I haven’t got
time.
” His
health simply wouldn’t permit him to assume any new duties, he said. Not being appointed would “save my
life,
I
declare.
I don’t want to serve on that committee.”

Johnson didn’t press the point, because the call had other purposes: to conceal from Russell, at least for the moment, any connection between the commission on which he was being asked to serve and the two men whom Russell distrusted above all others in public life—one of whom, Robert Kennedy, Johnson had allowed to name two
members of the commission, the other of whom, the man who had led the Warren Court to foist the
Brown
decision on the South, he wanted to be its chairman. The concealment required an outright falsehood. During the call, Russell asked Johnson, “Now you [are] going to let the Attorney General nominate someone, aren’t you?” Johnson’s reply was “No, uh-uh,” although, of course, he not only had asked Robert Kennedy to nominate someone, but had already accepted both his nominees, Dulles and McCloy. On another point, there was, if not falsehood, indirection. During his conversation with Russell, Johnson had said to Moyers, “Bill, give me that list of people” he was considering so that he could read it to Russell “to get your reaction to it.” But he read only six of the seven names on the list: he didn’t read the seventh name, the one that in fact headed the list. Throughout the long, rambling call, Johnson never revealed that Warren was being actively considered for membership on the commission, let alone for its chairmanship: the closest he came was to say that for the seventh member he was considering “maybe somebody from the Supreme Court.” At one point he dropped a hint, asking Russell, “Who would be the best one if I didn’t get the Chief?” But his next words obscured it. He understood that “none of the Court” would want to serve because of the past history of justices in non-judicial roles, he said. And, he said, “that’s why he’s [Warren] against it now.” And there were other words to obscure it. Since he didn’t think any member of the Supreme Court would accept an appointment to the commission, he brought up the possibility of naming a judge from a lower court, even asking Russell’s opinion of several. The call ended with Russell saying that he was sure Johnson could get “the name of some outstanding circuit court judge,” and Johnson saying, “Okay. You be thinking.” Russell, too, assumed his refusal had closed the matter.

But Lyndon Johnson never took no for an answer, and he wasn’t going to take no now. As soon as he was informed of Warren’s refusal to serve, he telephoned the chief justice and invited him to the Oval Office. Warren, a man of great determination, may have been determined not to serve, but when he arrived, as he was to recall, there were
“only
the two of us in the room.” Lyndon Johnson had him one on one. The chief justice may have believed that there were no words that could move him, but Johnson found some. Reminding Warren that he had served in the Army during
World War I, the President said he was sure that if he asked him to put on his uniform again, he would do it,
“and
you’d go fight if you thought you could save one American life.”

It wasn’t just one American life that might be involved now, Lyndon Johnson
said. It was thirty-nine million. “If Khrushchev moved on us, he could kill 39 million in an hour,” and “these wild people are charging Khrushchev killed Kennedy, and
Castro killed Kennedy, and everybody else killed Kennedy,” and if Khrushchev felt threatened because of what these rumors might cause America to do, he just might move on us. “And all I want you to do is look at the facts, and bring any other facts that you want in here and determine who killed the President,” and end the rumors, Lyndon Johnson said. “But here I’m asking you to do something and you’re saying
no,
when you could be speaking for 39 million people. Now I’m surprised that you, the Chief Justice of the United States, would turn me down.”

Tears came to Warren’s eyes, Johnson was to write in his memoirs. Warren does not confirm that in
his,
merely writing that he said,
“Mr
. President, if the situation is that serious, my personal views do not count. I will do it.” Then, says Warren, “he thanked me, and I left the White House.” It hadn’t even taken that long—according to the White House log, twenty-two minutes at most. It’s possible to make a sale quickly, even a very big sale, if the salesman is good enough.

T
HAT LEFT
R
USSELL
. Johnson had had to do a quick reading of Warren; he had had years to read Richard Brevard Russell, and he had read him all the way through. Russell may have thought his refusal to serve on the commission had ended the matter, but a few minutes after Johnson had put down the receiver at the end of his call to Winder, he picked it up again to call
Everett Dirksen and tell him the names of the panel’s members, and Russell was one of the names.
“He
didn’t want to take it, but he will,” Johnson said. “I’m going to
make
him do it.” And he knew how to make him do it: he had
Pierre Salinger type up, and hand to the White House press corps, a press release announcing the formation of the commission, and the names of the seven people he had appointed to it, and Russell’s name was one of the seven.

He waited awhile, because he didn’t want Russell to know about the announcement until newspapers had set it in type, and until presses were rolling with the next day’s editions. Then, at 8:55 that evening, he had the White House operators put in another call to Winder.

When Richard Russell picked up the phone, he was in a good mood. When Johnson said, “Dick, I hate to bother you again, but—” he interrupted his caller to say in a friendly tone, “That’s all right, Mr. President.” But that mood didn’t last long. “I wanted you to know that I’d made the announcement,” Johnson said. “Announcement of what?” Russell asked in a puzzled tone. Johnson read him the text of the press release: “The members are Chief Justice Earl Warren, chairman; Senator Richard Russell, Georgia.…” Russell protested. “Well now, Mr. President, I … just can’t serve on that commission.… I couldn’t serve there with Chief Justice Warren. I don’t like that man.… I don’t have any confidence in him.”

“Ah, Dick,” Johnson said. “It’s already been announced.… It’s already done. It’s been announced.”

In an astonished tone of voice, Russell said, “You mean you’ve given that—”

“Yes, sir, I mean I gave it—I gave the announcement and it’s already in the papers, and you’re on it.”

Russell didn’t go quietly. “Mr. President, you ought to have told me you were going to name Warren,” he said, and when Johnson said, “I told you! I told you
today
I was going to name the Chief Justice, when I called you,” Russell refused to let that misrepresentation stand. “No, you did not!” he said. “You were talking about getting somebody on the Supreme Court.… You didn’t tell me you were going to name him.” But the arguments Johnson used on Russell—and their effect on Russell—showed how deeply he had read into the text.