Justice for All (2 page)

“No, I didn't,” Warren responded. “That's too bad.”

“Well,” Cavanaugh asked, “would you mind if I got my nose into this thing?”

Warren was skeptical. “This is a field,” the governor offered cautiously, “that you shouldn't do too much in.”
⁴

If reserve was one of Warren's identifying characteristics, caution was another. Warren's ascent through California politics had been deliberate—he spent more than a decade as Alameda County's district attorney before an opening convinced him to run for attorney general. Once there, he had been inclined to stay, but the state's then governor slighted Warren, and Warren did not take insult lightly. At the next opportunity, he ran for the job of governor and pushed his adversary aside. Still, that had taken provocation. Warren did not make snap decisions, and Cavanaugh knew it. Moreover, this was a spot on the Supreme Court, and the audience for it was not the electorate but a president.

One does not run for the Court, precisely. One pursues it by indirection. Friends lobby and beseech. The candidate himself is expected not to covet the job too openly. Warren knew that, and though he wanted a seat on the Court—wanted it badly, in fact—he knew better than to advertise his interest.

Still, Cavanaugh dared to persist. The early commentaries announcing the death of Chief Justice Fred Vinson included remarks from leading American Catholics that the Court had no Catholic members and that Vinson's death represented a chance for the nation's new president, Dwight Eisenhower, to fill that void. As both Cavanaugh and Warren recognized, political calculations also might have inclined Eisenhower in that direction: Although he had been elected a year earlier to overwhelming national acclaim, Eisenhower's one political weak spot was the Northeast, where Catholics held substantial influence. The East Coast was three hours ahead of California, and those who wanted a Catholic nominee already were at work. For Warren to have a place in the running, his supporters would have to work fast to keep the nomination from being wrapped up.

Warren saw Cavanaugh's point and, after first hesitating, now agreed to set his candidacy in motion. Cavanaugh went to work. He called the bishop of Sacramento, who called another cardinal, who called Cardinal Spellman in New York, and “by noontime the White House was aware that those men in the church at least, and they were pretty ranking, would look with favor on Warren.”
⁵
Warren's campaign for chief justice had begun.

While Cavanaugh put Warren's hat in the ring, Eisenhower and his men set about their work as well. This was not a vacancy that Eisenhower had expected, but he welcomed it—as a chance to extend his own influence and as an opportunity to bring cohesion to a Court whose struggles had become a source of distraction and even embarrassment. Fred Vinson labored from 1946 to 1953 against smarter, more determined colleagues to bring order to the Supreme Court and stability to the nation whose laws it oversaw. By the time his heart gave out in the hours after midnight of September 8, 1953, it was painfully clear that he had failed as chief justice.

As word of Vinson's death crackled across the nation's radios, his fellow justices generally praised Vinson as a friend and leader, as a gentleman, as a jurist, and as a “lovable man who had devoted his life to the public good.”
⁶
Two of the Court's great minds, Justices Hugo Black and Robert Jackson, had feuded for years but held in common a mild disrespect for the now dead chief; they each offered gracious but restrained praise. By contrast, Associate Justice Felix Frankfurter was never one to disguise his contempt for a colleague, even a dead one. He released a terse one-sentence statement: “Chief Justice Vinson's death comes as a great shock to me.”
⁷
In private, he told a clerk that it provided him with his first solid evidence of the existence of God.
⁸

Those deep and personal divisions among the justices made the job of replacing Vinson an urgent one. The next chief justice would be charged with bringing unity to a fractured Court even as it turned to face some of the nation's most pressing questions. War and renewed prosperity had brought America to the forefront of the world's nations, but in 1953 it remained an immature country in many respects. Institutionally sanctioned racism eroded America's moral authority. The Cold War and internal debate over Communism ran rivulets of fear and divisiveness through the body politic. Spotty respect for the human rights promised to its citizens in the Declaration of Independence but withheld from them by its courts undermined America's desire to lead the world by example. Under Vinson, the Court's divisions had underscored intellectual disagreement over how far it could or should go in protecting the civil and economic rights of Americans. Now, with the center chair open, nothing less than the place of the Supreme Court in American life and of America in the world was at stake.

James Reston of the
New York Times
—the most influential reporter of his day—informed America the following morning of the circumstances of the chief justice's death, then turned coolly to the business at hand. He ticked off the list of possible successors. Among them: Thomas Dewey, the governor of New York, once nearly president himself, now the “leader of the Republican liberal wing”; John J. McCloy, former U.S. high commissioner in Germany; New Jersey Supreme Court chief justice Arthur Vanderbilt; and John Foster Dulles, brilliant and pompous and recently selected by Eisenhower as his secretary of state. While offering up those possibilities, Reston cautioned “there was no hard evidence to suggest . . . that [they] were anything except guesses.” One name, however, Reston elevated to special importance. “Gov. Earl Warren of California,” Reston wrote, “was being prominently mentioned as a likely successor to the Kentuckian.”
⁹

The president liked to delegate, and he entrusted the task of identifying candidates to Herbert Brownell, his attorney general and political adviser, one of his closest friends in politics and one of the few in his cabinet to whom Eisenhower felt personally attached. Brownell went to work. He shuffled name after name, guided by Eisenhower's loose criteria. The president wanted the next justice to be a capable administrator and young enough to wield influence over many years; the age cutoff, Eisenhower said, was sixty-two. More generally, Eisenhower told the dean of Columbia Law School, he was seeking a “man of broad experience, professional competence, and with an unimpeachable record and reputation for integrity.”
¹⁰

Orie Phillips and John Parker, two well-regarded federal judges, made Brownell's first cut. So, as Reston predicted, did Vanderbilt, though Brownell uncovered a concern about his health—the justice had “suffered a heart attack, although that was not generally known.”
¹¹
Brownell considered proposing the elevation of Associate Justice Jackson, but Jackson, the chief prosecutor at the Nuremberg trials, had publicly and intemperately blamed Black when passed over in favor of Vinson, an ugly episode that critics remembered well.
¹²
In addition, Jackson's support for FDR's court-packing plan years earlier had made him controversial in Congress. Jackson would not get the nod.

Promoting another justice also received some thought, but by then the Supreme Court had eight Democrats and a single Republican, Harold Burton. Few considered Burton worthy of the chief justiceship; the Eisenhower administration never seriously considered elevating him. With Jackson and Burton eliminated from contention and the rest of the justices of little appeal to a newly elected Republican president, the search returned to candidates not then serving on the Court. Reflecting his deep conservatism and discomfort with the rumbling of racial equality, Eisenhower for a time considered John Davis, a distinguished lawyer and onetime Democratic presidential candidate then representing the Southern states in a case pending before the Court. Within a year, its caption alone would become a hallmark of American history—
Brown v. Board of Education
. As counsel in that case, Davis was arguing on behalf of the proposition that white and black children should not be required to attend the same public schools. Although he was dropped from the list of candidates—largely, it seemed, because of his age, not his politics—Davis's initial place among the contenders foreshadowed Eisenhower's tragic ambivalence about the opening of American institutions to blacks.

As other names came and went, Warren remained. In one sense, he was a stretch—he had, after all, never served a day as a judge. But neither had a number of the Court's dominant figures of the period; Frankfurter, Jackson, and William O. Douglas all came to the high court without any judicial background, and Black had served as a night police court judge only briefly. Warren, meanwhile, had other credentials to commend him. He was a towering figure in the West and in American politics at mid-century. Philosophically, he was a Progressive Republican, a rare species nationally but part of a potent political tradition in California and seemingly one not unlike Eisenhower's centrist Republicanism. Warren's long and complicated record—as a former Alameda County district attorney and state attorney general—included vigorous prosecutions of Communists and labor activists, support for tax hikes and universal health insurance, and outspoken support for the internment of Japanese-Americans during World War II. Through all that, Warren, far more than any contemporary or successor, mastered California's complex and sometimes vicious politics. He counted among his allies the conservative publishers of the
Los Angeles Times
and the
Oakland Tribune
, but also was accused of betraying the Republican Party's candidates and even, with his efforts on behalf of health care reform, of socialism. And yet Warren had been elected three times as governor of California, carrying Democrats along with Republicans. His most recent campaign, in 1950, ended with his smashing defeat of none other than James Roosevelt, son of the revered former president. Warren beat him by more than a million votes.

Warren's broad political appeal in California made him unique in American politics, but he was easy to misjudge. On one hand, he was a lifelong Republican and a determined anti-Communist who had passionately denounced the New Deal. That seemed to cast him as a type—one familiar to Eisenhower and to Republicans nationwide. But what was harder to see was that Warren's record was not an expression of a personal philosophy so much as it was an accumulation of his experience; he learned as he went, and built up his profile as he adjusted his politics to suit the problems before him. The result is that he confused political stereotypes, and his upbringing confounded them further. California's Progressive-era election rules favored a different type of politician, and they stunted political organizing and tactics that were popular elsewhere. Among other things, California was governed by the referendum and the recall—two measures that encouraged direct democracy and wrested power away from political parties and bosses—and the right to “cross-file,” meaning that candidates could run as Republicans, Democrats, or both. Faced with a Democratic electorate in California, Warren had adopted a commitment to bipartisanship that suited his state as well as his temperament. With this commitment as his guide, Warren led California through a period of historic growth, of breakneck expansion placidly and professionally managed. The California he inherited in 1942 was politically divided, bereft by the Depression, terrified by war. By 1953, its people were prosperous, its budget balanced, its universities envied, its politics tranquil and Republican.
¹³

There was no arguing, then, with Warren's record. But he was a hard man to read. His own politics were idiosyncratic, and his temperament offered a bland exterior surrounding a web of gently opposing forces. Warren was a man of order, raised in a strict Scandinavian home, taught to distrust the rowdy Western antics of his boyhood town, Bakersfield. And yet he liked a little looseness in the joints, too. As a boy, he nosed his way through Bakersfield's saloons and whorehouses, took up the clarinet, and explored the surrounding brushland on his pet donkey. In public, Governor Warren was invariably under tight self-control, and he rarely put a revealing thought on paper. But he could lay into an aide. He enjoyed a nightly nip all through Prohibition and he nursed a lifelong love of poetry. Warren could appear simple—he favored straight prose, uncomplicated language—but he was not dumb. He was canny and insightful, and he was big. Though only just over six feet tall, Warren, with his bear chest and booming voice, commanded a room before speaking a word, even though he was in some ways shy. He could be cranky when taken by surprise.

And just as Warren was himself big, so was the canvas upon which he had painted his life and career. For Warren, no struggle was as personally or professionally defining as his labor for balance—between workers and employers; plain talk and poetry; politics and service; sobriety and good cheer; government power and individual rights; decency and self-expression; and, most momentously, the freedom of America's people and the security of its borders and institutions.

Preoccupied with such issues and convinced that he was better suited than most to address them, Warren naturally aspired to national office, and it was in that arena that he and Eisenhower first came to know each other. Warren ran unsuccessfully for vice president in 1948, and competed for the Republican presidential nomination in 1952, losing to Eisenhower himself. The campaign was shadowed and influenced at a key juncture by a young California congressman, Richard Nixon, whose own place in history was quickly taking shape and whose legacy would develop as a counterpoint to Warren's—Nixon the incisive, calculating political operator, haunted by his struggles; Warren the intuitive and congenial spirit, austere at times, blessed by his triumphs. By 1953, their rivalry was well on its way to becoming a Herculean political fact of the late twentieth century.