Justice for All (84 page)

Reaction to Warren's speech was decidedly mixed. Jackie appreciated it, but Warren's continued insistence that “hatred,” code in those days for racism, was in some way responsible for the president's death rang a hard note in the ears of many Southerners, already by then accustomed to finding fault with the chief justice. Warren's clerk, Beytagh, worried at how others would respond to those remarks, correctly predicting that some would wince at the suggestion that their passionately held views on race were somehow responsible for the horror that had befallen the Kennedy family and the nation.
¹⁷
Warren himself evidenced no second thoughts about the eulogy. He sent copies to his colleagues on the Court and reprinted it in full in his memoirs, acknowledging none of its controversial insinuations.

With the eulogy delivered, Warren assumed his formal responsibilities in connection with the assassination were complete. He and Nina attended the funeral the following day and trudged up the hill at Arlington Cemetery for the lighting of the torch, but he was not called upon to speak again. The country tottered back to its feet the following week, and Johnson delivered his first formal address as president on Wednesday, November 27. Speaking to Congress, the new president placed the power of his office and the already gathering aura of Kennedy's legacy in support of the Civil Rights Bill, whose progress had come to a halt that fall. “[N]o memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long,” Johnson announced to the Congress where he so long served and to the nation that he now suddenly led. “We have talked long enough in this country about equal rights. We have talked for one hundred years or more. It is time now to write the next chapter, and to write it in the books of law.”
¹⁸
Having labored for so many years in that field alone, Warren could only have welcomed Johnson's pledge with relief.

That Thanksgiving, the day after Johnson's speech, was a somber one, as Americans struggled to imagine what they could be grateful for after that terrible week. The Warrens marked the day as did many, in quiet reflection. They attended a Thanksgiving mass and then Warren, late in the day, paid a visit to an old California acquaintance, Senator Clair Engle, who, like Warren, grew up in the little dusty town of Bakersfield, when times seemed simpler and America less troubled.
¹⁹
Elected to the Senate in 1958, Engle had replaced Bill Knowland there and had soon befriended Warren. Engle was, on that sad, rainy day in 1963, near the end. A brain tumor was eating away at him. First it robbed him of his voice—when he cast a vote for a civil rights bill the next year, Engle could not speak; he was forced to point to his eye in order to register his “Aye”—then it took his life. Engle would be dead by the end of 1964.

On that Friday afternoon, Warren was shaken with grief. Kennedy had died and Engle was dying. Much of Washington remained closed. Warren made it to the Court, where he met with Beytagh that afternoon. Warren said there were two main issues he wished to discuss. The first was to inform Beytagh that the brethren had agreed to address the issue of legislative reapportionment, and that Warren himself intended to write for the Court, as he viewed that topic as the most important matter before the justices that term. The cases challenging various legislative districting schemes would be consolidated in a single decision, Warren said, and it was up to the chief justice and his clerks—in this case, Beytagh—to compose the opinion that would rewrite the rules of American voting and representation. The second matter, Warren said, was that he felt Beytagh should know that he had been approached that afternoon by two senior Justice Department officials, Nick Katzenbach and Archibald Cox, who had urged him to accept an assignment of national importance, the chairmanship of a commission that Johnson was forming to study the Kennedy assassination. Warren held a dim view of previous extrajudicial undertakings by sitting justices—Owen Roberts's report on the aftermath of Pearl Harbor had stirred the passions that led to Warren's worst mistake, his advocacy of the Japanese internment in 1942; Robert Jackson's service in Nuremberg had annoyed his colleagues and strained relations at the Court. He told his clerk he had listened but firmly declined .
²⁰

The two then turned back to the business of the Court, only to be interrupted by the phone. It was the White House calling, Lyndon Johnson himself asking if Warren would not come down the hill to discuss a matter of urgency. Beytagh excused himself while the two men talked, and then Warren quickly exited for the White House. Before leaving, he asked Beytagh to stick around so that they could resume their conversation when he returned.

Warren arrived and was shown into the Oval Office at 4:30 P.M. on Friday afternoon.
²¹
Johnson immediately went to work, skipping over any attempt to soft-sell his Commission proposal and jumping instead to Warren's most vulnerable places—his concern for the nation's safety and his patriotism. Johnson told Warren that the rumors of foreign involvement in the assassination were contributing to a dangerous international situation, one that, if left unchecked, could propel the nation toward war, even a nuclear war. If that weren't enough, Johnson pointedly warned Warren, the administration's top security and defense officials estimated that such a war could claim 60 million American lives.
²²
Johnson's reasoning was tenuous—it was a significant leap from rumors of foreign involvement to 60 million American dead—but it was a hard pitch for Warren to resist. Still, he tried to say no, erecting his stiff formality in response to Johnson's increasingly feverish demands. And then Johnson capped it, as only Johnson could, with the dagger to Warren's heart—the appeal to his love of country. “You've worn a uniform,” Johnson reminded Warren. “You were in the service in World War I. This job is more important than anything you ever did in the uniform.”
²³
There was nothing left for Warren to do but to give in. The entire conversation had lasted less than half an hour. By Johnson's account, Warren left the office in tears.
²⁴

When Warren returned to the waiting Beytagh that evening, he was as downcast as the clerk had ever seen him.
²⁵
Deflated to the point of exhaustion, Warren knew he had yielded on a point that he should have held, but, he complained, the appeal to his patriotism was more than he could withstand.
²⁶
Warren did not wallow. With the decision made, he plunged ahead into the work that he had agreed to shoulder. At the age of seventy-two, he would spend most of the coming year simultaneously presiding over the United States Supreme Court and the President's Commission on the Assassination of President Kennedy. The world would come to know it as the “Warren Commission”; Warren himself never called it that.

Warren was placed at the chairmanship of an esteemed and intentionally disparate group. From the House of Representatives came Hale Boggs, House majority whip and a congressman from Louisiana for nearly two decades. Boggs, one of just two Democrats on the Commission, was, by 1964, one of the House's most respected members. First elected in 1940 at age twenty-six, Boggs was then the youngest member of Congress; he lost his seat, left to fight in World War II, and then returned to New Orleans, where he resurrected his political career by winning a New Orleans congressional seat. Like Lyndon Johnson, Boggs studied under the tutelage of House Speaker Sam Rayburn, who nurtured their early careers and ambitions. In 1956, Boggs was among those Southern representatives who signed the Southern Manifesto denouncing the Court's decision in
Brown
.

Joining him from the House was an up-and-coming Michigan congressman, Gerald Ford. Though in the House nearly as long as Boggs, Ford had labored in its Republican minority, rising in 1963 to the chairmanship of the House Republican Conference, where he led a group of younger Republicans asserting leadership in order to counteract the youthful vitality of the Kennedy administration. Solid and reliable, he seemed a safe bet for Johnson as he sought to demonstrate his bipartisanship by tapping a House Republican. Moreover, Ford was known to be friendly with J. Edgar Hoover and supportive of the FBI. Since Johnson required the FBI's active participation in the investigation and analysis of the case, Ford offered advantages there as well.

From outside the government, Johnson selected two veterans of public service and pillars of American power. Allen Dulles had served as director of Central Intelligence under President Eisenhower and in the early months of the Kennedy administration. Few men in the American intelligence community were more widely recognized—or reviled. None had overseen more covert actions of the American government; few, if any, knew more of its mid-twentieth-century secrets, and few had failed more spectacularly. Dulles had helped oversee the disastrous Bay of Pigs episode early in the Kennedy administration, and after it, John Kennedy's distrust of the CIA grew so intense that he asked his brother Bobby, from his post as attorney general, to in effect ride herd over the intelligence agency. Dulles shortly thereafter retired, ending his career as the longest-serving director of America's relatively young intelligence service.

For the other public slot, Johnson turned to John J. McCloy, like Dulles a member of long standing in the nation's international apparatus. McCloy's public duties had included stints as assistant secretary of war, president of the World Bank, and U.S. military governor and high commissioner for Germany after World War II. So varied and deep was McCloy's background that the Warren Commission's premier scholar, Max Holland, described him as a “Wall Street lawyer, banker, and diplomat who personifies the versatile statesmen who serve Democratic and Republican presidents alike.”
²⁷

Completing the Commission were two members selected from the United States Senate. John Sherman Cooper was a veteran of the House and a Kentucky judge, first elected to the Senate in 1946 to fill out a term of a resigning member. He lost his reelection bid in 1948, then filled out another term, this one caused by the death of Senator Virgil M. Chapman, starting in 1952, only to lose again at the polls in 1954. His on-again, off-again Senate career, however, said more about the difficulties of being a Republican in Kentucky than it did about Cooper's reputation. Cooper was highly regarded by leaders in both parties, a genuine Southern moderate at a time when few such animals existed. He also had been close not only to John but also to Jackie Kennedy, who felt in him a “great kindness.”
²⁸

The final slot on the Commission went to the man Johnson trusted most, but he only agreed to accept it under the sternest pressure and even some duplicity on the president's part. Richard Russell was one of Washington's most intriguing figures, a lonely bachelor who had long since abandoned hopes of a wife and marriage and devoted himself instead to the business of the United States Senate. Heir to one of Georgia's great political families, Russell was sworn in to the governorship by his father, the state's chief justice and himself a failed candidate for that office. Once he moved to the Senate, Russell amassed influence with his quiet intelligence, his abiding modesty, and his reputation for telling the truth. By 1963, he was the Senate's most powerful man. Leaders of both parties recognized that he controlled the pace and outcome of legislation, that he could and would win passage of what he favored and would filibuster what he did not. He was devoted to America and to the American South.

Kennedy's death had only heightened Russell's power, for the White House now was occupied by one of his most grateful protégés, Lyndon Johnson. Johnson represented more for Russell than a friend in power. Russell had dreamed his whole adult life of a Southerner's ascending to the White House, rising above the animus of the War Between the States and taking his place at the head of the united nation.

Johnson was the fulfillment of that dream. Johnson owed his rise in part to Russell, and Russell relished what Johnson had achieved. Russell admired presidents; he
loved
this president. It was thus entirely natural that Johnson would choose Russell for such a delicate and important task. There was only one serious problem: As much as Russell loved Lyndon Johnson, he also detested Earl Warren. In Russell's eyes, no cause was greater than the preservation of the Southern Way of Life, and no man had done more to debase that cause than Warren.

When Johnson called Russell on the evening of November 29 to update him on plans for the Commission, the president knew he was going to be pushing Russell into an assignment. So Johnson deliberately waited until he had announced the formation of the Commission before bothering to tell Russell that he was a member.
²⁹
Calling Russell just before nine P.M. that evening, Johnson read him the announcement, featuring Warren's appointment as chairman and Russell's as the next name on the list. Russell was dumbfounded. When Johnson finished reading the statement, Russell sputtered, “I don't have to tell you of my devotion to
you,
but I just can't serve on that commission. I'm highly honored you'd think about me in connection with it. But I couldn't serve there with Chief Justice Warren. I don't like that man.” Johnson had proved all day that he would not take no for an answer, though, and he proved it again that night. He first fell back on the arguments he'd used with Warren—that a nuclear war loomed if rumors persisted, that millions of Americans could die, that Russell would put on a uniform if asked by his president. Russell continued to protest, and Johnson mixed threats with appeals to their long friendship. “You're
my man on that commission, and you gonna do it!”
Johnson exclaimed. “And don't tell me what you can do and what you
can't
because . . . I can't arrest you. And I'm not going to put the FBI on you, but you're
goddamned sure gonna serve,
I'll tell you
that
.”
³⁰
By the time their conversation was over, Johnson had flattered, threatened, and cajoled—“Nobody ever been more to me than you have, Dick . . . except my mother,” Johnson noted at one point. The weary senator, complaining still at the thought of serving with Warren, nevertheless succumbed and agreed to take his place on the president's commission.