Justice for All (56 page)

Douglas was incensed, and his anger elicited his eloquence, as he rose in defense of the principle of free speech:

 

Black dissented as well, and in the years to come “Black and Douglas, dissenting,” would become a staple of the Vinson Court. By the time Warren arrived, Douglas's views were steadfast and hardening. He believed simply that government intruded too deeply in the lives of its citizens, and as a judge he enjoyed clipping the wings of government officials at all levels who stymied civil liberties. Douglas eventually would draft the Court's signature work on the privacy of the individual, and thus of the limit of legitimate government interference in the lives of its citizens. The Court, in Douglas's view, existed to protect those citizens—to demand the fulfillment of their rights in the face of a government sometimes all too willing to subordinate them. In his core, Douglas was an individualist, and though he would become the whipping boy for generations of conservatives, he was, in many ways, one of them: rugged, independent, suspicious of the state, and committed to the individual.

Black appreciated Douglas's idiosyncrasies. They were singular men, willing to live apart from those around them. Black in his years as a justice would disappoint many of his Alabama friends. Douglas would disappoint almost everyone who cared about him personally. And so they found each other, and they liked and appreciated each other. When Stone died on the bench, Douglas hoped Black would ascend to the chief justiceship. When Vinson died in his apartment, Douglas again pulled for his Southern colleague. This time, it was Warren who received the nod.

In 1953, Warren and Douglas were two of America's most prominent Western politicians, and though they were of different parties, their paths had crossed. Warren recalled meeting Douglas at legal gatherings, but said they were only “slightly acquainted.”
³⁹
Douglas thought their bond deeper, and was one of thousands who took the time to write to Warren to express his sympathies and well-wishes for Honey Bear when she was struck with polio. The letter, Warren said in reply, “touched us deeply,” adding that Honey Bear was looking forward to reading Douglas's memoir,
Of Men and Mountains
.
⁴⁰
Given his regard for Warren, Douglas remembered being “more delighted than surprised” when Eisenhower named Warren to the Court.
⁴¹

And so, on the first weekend of October in 1953, Warren signed the papers resigning the governorship of California and flew to Washington to join his new colleagues, whose work had now become his and whose family he would now preside over. So quick was Warren's transition from governor to chief justice that he arrived without a robe and had to borrow one. At precisely noon on October 5, 1953, the Court clerk read Warren's appointment, and Warren took the judicial oath. He then was escorted to the Court's center chair, reserved for the chief justice, and as he stepped up to occupy it, Warren tripped on the hem of the borrowed robe, almost falling into the chair. “I suppose it could be said that I literally stumbled onto the bench,” he remembered.
⁴²

President Eisenhower and his wife attended the ceremony, as did Richard and Pat Nixon. Warren's old friend and trusted aide Warren Olney III was on hand as well, waiting for admission to the Supreme Court bar, as he had come to work for the Justice Department as an assistant attorney general. Nixon moved for Olney's admission (and muffed his line, presenting Olney for “nomination” rather than “admission,” a slip that Warren noted and could not resist including in his memoirs).
⁴³
From his post, Warren administered the oath to his old friend.

Black was the senior justice, and Warren knew formalities well enough to seek him out first, presenting himself at Black's chambers just moments after first arriving at the Court and introducing himself to his clerks and personal staff. Flattered, Black welcomed the new chief with grace, and introduced him to the rest of the brethren. Their first stop was Burton, and Warren mischievously assumed an intimacy with his new colleague, urging him not to let any of his more senior colleagues, notably Reed, know that Warren had come to see Burton first.
⁴⁴
Already, Warren was making friends under the approving eye of Black. To Black directly, Warren acknowledged his unfamiliarity with the Court's procedures and again flattered his senior colleague by asking him to take over the conference while Warren settled in. Even more deferentially, Warren asked Black what he should read to learn about opinion-writing. “Aristotle on Rhetoric,” the classically self-educated Black replied. That night, as midnight approached, Warren was reading Aristotle in his chambers.
⁴⁵

Warren moved slowly to assume the full scope of his duties, but his friendly presence immediately lightened the mood of the Court, as his fellow justices warmed to his personality and came to his assistance. Burton, an amateur historian, forwarded to Warren a copy of his history of the site on which the Court stood, a monograph that traced the land from 1550 through eight periods, culminating in the construction of the Court as it was completed in 1935.
⁴⁶
Douglas sent over a copy of “Washington and Manifest Destiny,” an address he had delivered a few months earlier .
⁴⁷
Clark offered help finding an apartment, recommending a place on Connecticut Avenue.
⁴⁸
Frankfurter delighted in taking Warren under his wing, commencing a series of lectures for the new chief on desegregation.
⁴⁹

Warren was grateful for the courtesies of his new colleagues. From the first days, his notes to them—and theirs to him—conveyed fondness and respect. They were, as Warren's notes almost always were, formal, but they went beyond stiff collegiality; they were genuinely appreciative. A few days after Warren's arrival, Black wrote to his sons. In his note, Black demonstrated his keen eye for character. He had only known Warren for ten days, but already Black had intuited his essence. “The new Chief Justice is a very attractive, fine man,” Black wrote:

Chapter 16

SMEAR

SENATOR ARTHUR V. WATKINS
¹

 

 

 

 

 

 

 

 

WARREN'S EARLY MONTHS with the Supreme Court were tentative; as the recipient of a recess appointment, he was guaranteed his position only until Congress returned and took up the matter of his nomination to the position permanently. It was not until early 1954 that Congress set about the awkward business of deciding not whether Warren deserved to be seated on the Court—he was already there—but rather whether he should be allowed to stay.

Warren himself said little about his confirmation, but that was not because he enjoyed it or took it lightly. Like other experiences that deeply upset Warren, he responded by minimizing it, in this case pushing it out of his official history altogether. His memoirs dismissed his confirmation as Chief Justice of the United States in a footnote supplied by his editor: “The Chief Justice, in writing this book, did not feel that the accusations brought against him had enough validity to deserve attention at the expense of other matters.”
²
Because Congress by statute seals its own judicial confirmation records for fifty years, Warren's decision to skip over the story of his own confirmation has meant that no serious examination of it has ever been undertaken or published. Warren's biographers have been unable to access the relevant files, so the only descriptions have come from contemporary accounts, based solely on the public workings of the Senate Judiciary Committee and on some enterprising reporting at the time, most notably by James Reston of the
New York Times
. Only in March 2004 did the Judiciary Committee records at last become available. Their contents reveal a smear of the first order, a deliberately deceitful attack on Warren's character by the committee's chair, aided by a self-aggrandizing political disciple and a delusional California private investigator.

As the cast assembled for that episode in late 1953, Warren was suffering in silence. He was, in those early months on the Court, alone and unhappy. Nina accompanied him to Washington and attended his swearing in, but the next day she returned to California. There, Nina packed up their things, while Goodwin Knight impatiently waited for her to vacate the mansion. The Warren children were in school or on their own, and so the new chief justice was by himself. And Earl Warren without Nina Warren was a diminished, sulky man. “I was,” he remembered later, “perfectly miserable.”
³
It was Nina who organized the details of Warren's unofficial life, she who cooked and kept their home, who laid out his clothes, who made sure his shirts were cleaned without starch—even the slightest bit of starch would give Earl Warren a rash.
⁴
Nina oversaw their modest social schedule and charmed friends and neighbors with her devil's food cakes. Earl Warren liked order—depended on it, in fact—and it was Nina who brought order to his life. Without her, even briefly, he foundered.

Friends were also hard to see. Most were far away, in California, and those in Washington were difficult to socialize with under the new strictures of his work. Chief among those was Olney, whose new position as associate attorney general of the United States meant that he and Warren were both in Washington. At first, they resumed their friendship, as the two men enjoyed walks together along the Potomac, reminiscing about California and warming in their old, deep camaraderie. Some nights, Warren would eat at the Olney home, reconnecting with the family as well.
⁵
Soon, however, it became clear to both that it was potentially compromising for the chief justice to maintain a friendship with a senior official from the Justice Department. The walks ceased, as did most unofficial contact between two men who had grown up professionally together and who both were now far from home. Olney took special care never to argue a case before the Supreme Court during the years that he was with Justice; he and Warren reduced their social contacts, and though they saw each other occasionally, those events were few and far between. The separation was difficult—and, as it turned out, temporary—but while it lasted, both accepted it with the stern self-discipline that was the mark of their common professionalism.
⁶

While some aspects of the sanctum of the Court were comfortable for Warren in those early days—he welcomed the new and complex work—Warren also found it confining. In California, Warren's schedule was full of public events—speeches, receptions, radio addresses. He was used to speaking his mind, and enjoyed the response it generated. Now he rarely appeared in public outside the Court, and he was especially cautious during the months that his confirmation was held in abeyance. Not until January did he deliver a significant public address. And then it was one so bromidic that it was sure not to give his Senate critics material to use against him. Speaking at Columbia University on January 14, 1954, Warren proclaimed that freedom of thought was the tool by which free nations would prevail over Communist and fascist ones. “Liberty, not communism,” Warren said, “is the most contagious force in the world.” Only in one passage did Warren hint at a controversial notion, his willingness to tolerate excess in the name of freedom:

 

Two days later, the United States Senate received President Eisenhower's nomination of the acting chief justice. It was promptly referred, as judicial nominations typically are, to the Judiciary Committee, which appointed a subcommittee to examine Warren's qualifications. And there the trouble began. The chairman of the Judiciary Committee at that time was North Dakota's senior senator, the strange and irresponsible William Langer. Hawk-nosed and jowly, with piercing eyes that peered from beneath heavy lids, Langer was a strange blend of abstinent and indulgent: He refused to touch alcohol but chomped a cellophane-wrapped cigar. As a prosecutor, he pursued felons with zeal but amassed a long rap sheet of his own, including arrests for inciting a riot, defrauding law clients, and engaging in numerous suspicious financial deals.