Justice for All (104 page)

Warren kept his place in the life of the nation with his speaking schedule. He spoke most often to students, though also to assemblages of lawyers or judges and occasionally on behalf of environmental protection—he joined the effort to protect California's redwoods, a cause spearheaded by his old classmate, Newton Drury. But Warren's abiding political preoccupation was, as it never ceased to be, Nixon. Warren's reverence for the American presidency prevented him from engaging in personal attacks on Nixon, but after 1972, the gathering storm of Watergate was more than Warren could resist. For twenty years, he had warned those closest to him that Nixon was not trustworthy, that he had crossed Warren at the 1952 convention and had more than earned the nickname “Tricky Dick.” Now Warren was riveted by the disclosures of burglaries, of misuse of government agencies to persecute critics, of secret bombings in Cambodia, and of the compilation of an “enemies list.”

In October 1973, soon after Earl and Nina returned from a Hawaiian vacation with Ben Swig, Swig was hospitalized, and Warren tried to lighten his friend's spirits with regular updates from Washington. To such a trusted and ailing friend, Warren indulged in passing along gossip, though of a decidedly political nature. Spiro Agnew was under investigation, and Warren predicted on October 3 that with so much talk of grand jury inquiry, “it is about time we hear of some action one way or the other.”
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By October 15, Agnew was gone, and Warren told Swig there was brief rumor that Chief Justice Burger would become the vice president in Agnew's place. Agnew's farewell address, an attack against the press rather than an admission that his tax evasion conviction had brought him down, only annoyed Warren, who described it as a “great polemic,” and said it “left everyone here cold.”
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On October 20, Nixon ordered his attorney general, Elliot Richardson to fire Archibald Cox, the special prosecutor then seeking access to the White House tapes. Richardson refused and instead resigned himself. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. He too refused. Finally, Robert Bork, the solicitor general but then acting attorney general, carried out Nixon's orders. Warren was amazed. “Washington is seething again with the events of last weekend,” he wrote to Swig, “and conditions are far more chaotic than they have ever been in my experience.”
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By month's end, Warren could genuinely report, “There is no news here except Watergate.”
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In public, Warren was far more circumspect, but he occasionally found it impossible to hold his tongue. In April of 1973, Warren traveled to Independence, Missouri, to pay homage to President Truman—an old adversary but really more of a friend—who had died the day after Christmas in 1972. Speaking at the library of a president he admired, Warren could not conceal his disdain for Nixon. Although he did not name him, Warren contrasted Truman's presidency with his successors', and added: “I sometimes wonder if that wholesome approach has departed permanently from the American scene.”
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Three months later, Warren presided over a happier fulfillment of his own legacy. In Los Angeles, voters elected that city's first black mayor, Tom Bradley, and Warren, whose contributions to the cause of racial equality were without many peers, was invited to administer the oath. It was a satisfying moment for the chief justice, who had sworn in Presidents Eisenhower, Kennedy, Johnson, and, lamentably, Nixon, but who now came home to guide a black mayor through his oath of allegiance to the Constitution. When Warren, without introduction, stepped to the podium to administer the oath, Bradley began to applaud, and with him, the thousands who had gathered in Warren's home state on a sunny July morning joined in paying their respects to the former governor. Unable to stay seated, the guests rose and gave Warren a standing ovation. Some wept. One hardened newsman confessed to Bradley that even he wiped tears from his eyes.
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Then Warren turned to the completion of what he had started in 1954 with
Brown
. He made a black man the mayor of his own birthplace. It was, Warren said, a “heart-warming event for me.”
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By the end of 1973, Warren's health was beginning to fail, but he remained unwilling to succumb to it. On January 26, 1974, he was hospitalized in Los Angeles while doctors worked to relieve a fluid buildup around his heart and lungs. He was treated and released after a week, and then recuperated a few more days at Honey Bear's home in Beverly Hills. By March, he was sufficiently recovered to celebrate his eighty-third birthday with a dinner at Virginia and John Daly's home in Washington, and on April 5 he took in Opening Day in Baltimore. His law clerks toasted him later that month, and Warren accepted a number of speaking engagements for April and May. The last of those was to be in Atlanta, where Warren agreed to deliver a commencement address at that city's great all-black college, Morehouse. Speaking to those new graduates, Warren reflected on Watergate and urged students not to abandon their history. “The scandal, compendiously referred to as Watergate, has shaken the faith of people, not only in the individuals involved, but also in the procedures which brought them to their high stations,” Warren said. “Many people are so shocked by the disclosures that they are distrustful of all persons in public life and, what is even worse, they are becoming doubtful about the institutions upon which we have relied for so long to bring about the freedom which was promulgated in the Declaration of Independence two centuries ago.”
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That would not do for Warren. Even with Nixon in the White House and the nation torn by his presidency, Warren kept his belief in those institutions, if not in those individuals who occupied them. “The great virtue of our Government,” he said, “is that people can do something about it.”
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That was Warren's final public appearance. Three days later he suffered a heart attack and was hospitalized in Washington. The last weeks of Warren's life were spent between hospital and home. During that time, he welcomed to his side the people of his lengthy career, each bringing memories that gave him comfort. On June 27 came Pat Patterson, who as a young California highway patrolman had chauffeured Governor Warren through a vast and varied state.
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Warren was weak but cheerful, and eager to reminisce about their early days together, when the governor and his black driver struck up their friendship. They talked of the governorship, of their rides, of friends they had in common, of their long bond with each other. Patterson immodestly asked whether he was right in assuming that Warren had been writing about him in
Brown v. Board of Education
when he described the plight of black children in segregated schools. Even sick, Warren knew better than to take that belief away from Patterson. “He laughed,” Patterson recalled, “and indicated many factors and much evidence were taken under consideration in making that decision.” After talking for a while, Patterson reluctantly broke away. Warren encouraged him to write a book. Patterson left their final meeting vowing to try.
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Warren reentered the hospital on the afternoon of July 2. And soon after being admitted came the representatives of a deeper, older, more cherished memory. The University of California, Berkeley, had held a place in Warren's heart from first sight, and now to his bedside it returned, carried by two men who shared his love of it. His oldest son, Jim, whom Warren had adopted as his own when he married Nina, came with his own son, Jeffrey, who had presumed to introduce his grandfather to the writing of Eldridge Cleaver and who had begged him to stay on the Court. All three Warrens were members of the Order of the Golden Bear and were fraternity brothers across their three generations. Together, they loved poetry, and Jim and Jeffrey read to the old man as he lay in bed. Then Warren spoke up. There was one poem he wanted to read to them, he said. It was “The Explorer,” by Rudyard Kipling, precisely the type of narrative, eventful poem that Warren always liked. Determined to read it aloud in accordance with the traditions of their society, Warren pulled the poem close and gravely sounded out its lines. It told the story of a man, driven to discover the “land behind the ranges” by a voice compelling him forward. It told of the man's patience and his vision. It had tinges of bitterness, the lack of appreciation that those who would come later would have for the man who blazed ahead. Warren read it slowly, his son and grandson by his side. And then, Warren came to the poem's final verses, three stanzas written as if for him:

 

Earl Warren tossed up his hands in triumph. “We'll see ya, fellas,” he exclaimed. Jim and Jeffrey left believing he might bounce back.
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On July 9 came greetings from the Court, delivered by Warren's two enduring friends from his era—the elfin William Brennan and the irascible William Douglas. Along with Marshall, those two colleagues were all that remained of the once dominant liberal bloc. Black had died in 1971, just eight days after retiring his seat. Goldberg and Fortas preceded Warren from the bench. Now Warren Burger sat in Warren's chair, and Harry Blackmun in the one that Goldberg and Fortas had occupied. The Nixon appointees had not done much to roll back Warren's work, but his legacy was under attack, and it seemed only a matter of time until it would fall beneath the weight of conservative appointments. And yet there were other currents coursing through politics in those days, particularly as the stain of Watergate and its associated deceptions spread through the Nixon White House. Unable to squelch demands for his tapes by firing Archibald Cox—or, rather, by persuading Bork to fire Cox—Nixon now turned to the Supreme Court for relief. Nixon's lawyers argued that they should not be forced to surrender secretly made tapes of Oval Office conversations, that executive privilege protected that material. On July 8, prosecutor Leon Jaworski came to the United States Supreme Court—four of whose members had been placed there by Nixon—to demand that the president yield to the law and surrender the tapes. The Court heard three hours of argument that day, then retreated to its conference room on July 9 to debate the emergency matter.

When they arrived at Room 6103 that afternoon, Brennan and Douglas joined their old chief on the seventh floor of the Georgetown hospital.
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Outside was the Watergate complex, where an alert security guard had caught the five burglars whose case tugged apart the web of deceit and cover-up that now was unraveling the Nixon presidency. They entered, and Warren took Douglas by the hand: “If Nixon is not forced to turn over tapes of his conversation with the ring of men who were conversing on their violations of the law, then liberty will soon be dead in this nation. If Nixon gets away with that, then Nixon makes the law as he goes along—not the Congress nor the courts. The old Court you and I served so long will not be worthy of its traditions if Nixon can twist, turn, and fashion the law as he sees fit.”
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Warren was tired, but Brennan assured him that he would not be disappointed in the Court, that it had met that day and that it would vindicate itself in its ruling on
United States v. Nixon
.
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Warren smiled and asked his friends to stay longer. Fearing they would tire him, they left after about an hour.

That night, Warren was joined at his bed by his wife and Honey Bear. They were by his side when, just after eight P.M., he seized up. Honey Bear dashed into the hall for help. Returning with a doctor, she found her mother holding her father in her arms. At 8:10 P.M., Earl Warren died. More than thirty years earlier, Earl Warren had wept in the hallway, shrugging off his own Election Night, at the news that his little girl had polio. Now she was grown and healthy, there with her mother and namesake, whom Warren had cherished since their chance meeting at an Oakland pool party fifty-three years earlier. As her father died, Nina “Honey Bear” Warren staggered into another hospital hallway. She wept, comforted by her mother yet as bereft as her father had been at her illness so many years before.
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At Warren Burger's suggestion, Earl Warren lay in repose at the United States Supreme Court from July 11 until his funeral the next day. His clerks stood guard over the bier through that night into the warm summer day that followed, silently paying vigil as thousands of everyday men and women filed past. Warren's family converged on Washington. On July 12, Nixon accompanied Nina Warren to the funeral at the National Cathedral. Warren's clerks, one pew behind the family, winced at that, but they kept their peace.
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Nina Warren considered bringing her husband home to California for his burial, but his connections to California were scattered—from his birthplace in Los Angeles, to his boyhood home in Bakersfield, to the Bay Area he loved, to Sacramento where he governed. Instead, she elected to return him to his nation. Warren had served in World War I and honored his country in the decades since. Nina laid his body at Arlington National Cemetery, where he was buried at the crest of a hill overlooking the Tomb of the Unknown Soldier.