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Earl Warren, the Chief Justice of the United States, hailed the elevator operator as if he were campaigning, stepped in and rode to the basement of the Supreme Court Building, where the Court limousine was waiting. Warren easily guided his bulky, 6-foot-1-inch, 220-pound frame into the back seat. Though he was seventy-seven, the Chief still had great stamina and resilience.
Four young men got into the car with him that fine November Saturday in 1968. They were his clerks, recent law graduates, who for one year were his confidential assistants, ghost writers, extra sons and intimates. They knew the "Warren Era" was about to end. As Chief Justice for fifteen years, Warren had led a judicial revolution that reshaped many social and political relationships in Amer-ica. The Warren Court had often plunged the country into bitter controversy as it decreed an end to publicly supported racial discrimination, banned prayer in the public schools, and extended constitutional guarantees to blacks, poor people, Communists, and those who were questioned, arrested or charged by the police. Warren's clerks revered him as a symbol, the spirit of much that had happened. The former crusading prosecutor, three-term governor of California, and Republican vice-presidential nominee had had, as Chief Justice, a greater impact on the country than most Presidents.
The clerks loved their jobs. The way things worked in the Chief's chambers gave them tremendous influence. Warren told them how he wanted the cases to come out. But the legal research and the drafting of Court opinions even those that had made Warren and his Court famous and infamous were their domain. Warren was not an abstract thinker, nor was he a gifted scholar. He was more interested in the basic fairness of decisions than the legal rationales.
They headed west, downtown, turned into 16th Street and pulled into the circular driveway of the University Club, a private eating and athletic club next to the Soviet Embassy, four blocks north of the White House. The staff was expecting them. This was a Saturday ritual. Warren was comfortable here. His clerks were less so. They never asked him how he could belong to a club that had no black members.
With his clerks in tow, Warren bounded up the thick-carpeted steps to the grill. It was early for lunch, not yet noon, and the room was empty. Warren liked to start promptly so they would have time for drinks and lunch before the football game. They sat in wooden captain's chairs at a table near the television and ordered drinks. The Chief had his usual gimlet. He was pensive. They ordered another round. Warren reminisced, told political stories, chatted about sports, and then turned to the recent past, to Richard Nixon's election. The Chief thought it was a catastrophe for the country. He could find no redeeming qualities in his fellow California Republican. Nixon was weak, indirect, awkward and double-dealing, and frequently mean-spirited. Throughout the 1968 presidential campaign, Nixon had run against Warren and his Court as much as he had run against his Democratic rival, Senator Hubert Humphrey. Playing on prejudice and rage, particularly in the South, Nixon had promised that his appointees to the Supreme Court would be different.
It was unlikely that a Nixon Court would reverse all the Warren Court's decisions. Though Justices John Harlan, Potter Stewart and Byron White had dissented from some of the famous Warren decisions, each of them had strong reservations on the matter of the Court's reversing itself. They believed firmly in the doctrine of stare decisis the principle that precedent governs, that the Court is a continuing body making law that does not change abruptly merely because Justices are replaced.
But as Warren and his clerks moved to lunch, the Chief expressed his frustration and his foreboding about a Nixon presidency. Earlier that year, before the election, Warren had tried to ensure a liberal successor by submitting his resignation to President Lyndon B. Johnson. The Senate had rejected Johnson's nominee, Associate Justice Abe Fortas, as a "crony" of the Presi-dent. All that had been accomplished was that Nixon now had Warren's resignation on his desk, and he would name the next Chief Justice.
Warren was haunted by the prospect. Supreme Court appointments were unpredictable, of course. There was, he told his clerks, no telling what a President might do. He had never imagined that Dwight Eisenhower would pick him in 1953. Ike said he had chosen Warren for his "middle of the road philosophy." Later Eisenhower remarked that the appointment was "the biggest damned-fool mistake I ever made." Well, Warren said, Ike was no lawyer. The clerks smiled. But Richard Nixon was, and he had campaign promises to fulfill. He must have learned from Eisen-hower's experience. He would choose a man with clearly defined views, an experienced judge who had been tested publicly on the issues. The President would look for a reliable, predictable man who was committed to Nixon's own philosophy.
"Who?" asked the clerks.
"Why don't we all write down on a piece of paper who we think the nominee will be?" Warren suggested with a grin.
One clerk tore a sheet of paper into five strips and they sealed their choices in an envelope to be opened after Nixon had named his man.
Warren bent slightly over the polished wooden table to conceal the name he wrote.
Warren E. Burger.
Three months later, on the morning of February 4, 1969, Warren Burger, sixty-one, was in his spacious chambers on the fifth floor of the Court of Appeals on Pennsylvania Avenue, almost midway between the White House and the Supreme Court. President Nixon, who had been in office only two weeks, had invited him to swear in several high-ranking government officials at the White House. When he arrived at the mansion, Burger was instantly admitted at the gate.
Nixon and Burger first met at the Republican National Convention in 1948. Nixon was a freshman Congressman and Burger was floor manager for his home-state candidate, Minnesota Governor Harold Stassen. At the next convention, four years later, Burger played an important role in Eisenhower's nomination. He was named assistant attorney general in charge of the Claims Division in the Justice Department, and in 1956 he was appointed to the United States Court of Appeals for the District of Columbia. On that famously liberal court, Burger became the vocal dissenter whose law-and-order opinions made the headlines. He was no bleeding heart or social activist, but a professional judge, a man of solid achievement.
Now at the White House, the ceremonial swearings-in lasted only a few minutes, but afterward the President invited Burger to the Oval Office. Nixon emphasized the fact that as head of the Executive Branch he was deeply concerned about the judiciary. There was a lot to be done.
Burger could not agree more, he told the President.
Nixon told him that in one of his campaign addresses he had used two points from a speech Burger had given in 1967 at Ripon College in Wisconsin. U.S. News & World Report had reprinted it under the title "What to Do About Crime in U.S." The men agreed that U.S. News was the country's best weekly news magazine, a Republican voice in an overwhelmingly liberal press. Burger had brought a copy of the article with him.
In his speech Burger had charged that criminal trials were too often long delayed and subsequently encumbered with too many appeals, retrials and other procedural protections for the accused that had been devised by the courts.
Burger had argued that five-to-ten-year delays in criminal trials undermined the public's confidence in the judicial system. Decent people felt anger, frustration and bitterness, while the criminal was encouraged to think that his free lawyer would somewhere find a technical loophole that would let him off. He had pointed to progressive countries like Holland, Denmark and Sweden, which had simpler and faster criminal justice systems. Their prisons were better and were directed more toward rehabilitation. The murder rate in Sweden was 4 percent of that in the United States. He had stressed that the United States system was presently tilted toward the criminal and needed to be corrected.
Richard Nixon was impressed. This was a voice of reason, of enlightened conservatism firm, direct and fair. Judge Burger knew what he was talking about. The President questioned him in some detail. He found the answers solid, reflecting his own views, and supported with evidence. Burger had ideas about improving the efficiency of judges. By reducing the time wasted on routine administrative tasks and mediating minor pretrial wrangles among lawyers, a judge could focus on his real job of hearing cases. Burger also was obviously not a judge who focused only on individual cases. He was concerned about the system, the prosecutors, the accused, the victims of crime, the prisons, the effect of home, school, church and community in teaching young people discipline and respect.
The President was eager to appoint solid conservatives to federal judgeships throughout the country. As chairman of a prestigious American Bar Association committee, Burger had traveled around the country and must know many people who could qualify. The President wanted to appoint men of Burger's caliber to the federal bench, including the Supreme Court. Though the meeting was lasting longer than he had planned, the President buzzed for his White House counsel, John Ehrlichman.
Ehrlichman came down from his second-floor office in the West Wing. Nixon introduced them. "Judge Burger has brought with him an article that is excellent. Make sure that copies are circulated to others on the White House staff," Nixon said. He added that Burger had constructive, solid ideas on the judicial system as well as for their anticrime campaign. Judge Burger was a man who had done his homework. "Please make an appointment with him to talk," the President said, "and put into effect what he says." The chat had turned into a seventy-minute meeting.
Ehrlichman left, concluding that if ever a man was campaigning for elevation in the judiciary, it was Warren Burger. He was perfect, clearly politically astute, and he was pushing all the right buttons for the President. Burger and Ehrlichman never had their follow-up meeting, but from press accounts and bar association talk, Burger knew that Nixon had designated Attorney General John Mitchell, his former campaign manager and law partner, to help find him new judges, including a new Chief Justice.
Mitchell, Burger understood, was the "heavy hitter," the one closest to the President. Privately, Burger had expressed doubts to friends whether a New York bond lawyer had the experience to be the nation's top law-enforcement officer.
On February 18, Mitchell asked for Burger's help. Shortly thereafter, Burger called at his office in the Justice Department. Knowing that Burger had numerous contacts in legal and judicial circles, Mitchell sought recommendations for nominees to the federal bench. Burger offered some names, and Mitchell wrote down the suggestions. Richard Kleindienst, Mitchell's deputy, sat in on the end of the hour-long meeting. After Burger left, Mitchell remarked, "In my opinion there goes the next Chief Justice of the United States."
A month passed. On April 4, Burger wrote a letter to Mitchell on his personal stationery. "In one of our early conversations you asked me to give you my observations on District Judges and others over the country who might warrant consideration for appointment or promotion," Burger said. He offered three immediate suggestions, adding that "each of these men is especially well qualified." One of the three names he sent was a federal district judge in Florida, G. Harrold Carswell. Burger also promised to send along other recommendations "from time to time." Mitchell responded with a thank-you note the same day. Later that month, Burger received an invitation to a White House dinner that the President would give on April 23 to honor Chief Justice Warren.
Burger arrived with his wife at the White House early to have time to look over the guest list. All the important Republicans were there, including Vice President Spiro Agnew, as well as all the Associate Justices of the Supreme Court. Burger was the only lower court judge invited. "If you get a feeling they're looking us over," he told his wife, "act natural."
Supreme Court Justice John Harlan, a conservative Eisenhower appointee, greeted Burger. "I'm glad you're here," he said warmly.
The President's toast to Warren was glowing, and Warren in turn rose to praise Nixon. He was concluding his forty years of public service, he said, with "no malice in my heart."
The next day, Burger's long-time archenemy on the appeals court, liberal Chief Judge David L. Bazelon, approached him. Cordially, he pointed out that Burger was the only district or circuit judge at the dinner. "Looks like you're it," Bazelon said.
"No," Burger said, brushing off his old adversary. To Burger, the fifty-nine-year-old Bazelon was a meddler the self-appointed protector of every racial minority, poor person and criminal defendant.
But Washington reporters had also picked up the possible significance of Burger's White House invitation and began asking him about it. Burger was humble. He neither knew nor expected anything. Asked about other candidates for Chief Justice whose names were making the rounds, such as Secretary of State William Rogers, Burger downgraded each one. "No, no," he would tell reporters confidentially, "he wouldn't be good." The media made Burger a dark-horse candidate, but there was still a frontrunner Associate Justice Potter Stewart.
A week later, the morning of Wednesday, April 30, Stewart arrived at the Supreme Court late. He hated starting early. Stewart had impressive academic and establishment credentials. Born into a distinguished and wealthy family of Ohio Republicans, he had studied at Hotchkiss and Yale University, where he was Phi Beta Kappa and the editor of the Yale Daily News, before enrolling at Yale Law School, where he was a top student. At age thirty-nine he was appointed by Eisenhower to the Sixth Circuit Court of Appeals. "I can promise you he is not too old," a leading Senate supporter had said. Stewart quickly came to love the work. He remarked that it involved "all the fun of practicing law without the bother of clients." Four years later, in late 1958, Eisenhower elevated Stewart to the Supreme Court, one of the youngest Justices in history. For a decade, he had dissented from most of the major Warren Court opinions. Now, at fifty-four, he was at his prime, perhaps ready for the final step.
That morning Stewart went straight to his chambers, staring at the marble floor, by habit avoiding eye contact with those he met along the way. A shy man, Stewart was of average height and build, with thin brown hair combed straight back from a receding hairline. In the men's club atmosphere of the Court, Stewart had found a comfortable shelter. The job was nearly perfect, providing both the prominence of a high government post and intellectual satisfaction, without overexertion. Reaching his chambers, he called John Ehrlichman at the White House. Stewart said he wanted a brief appointment with the President.
Ehrlichman called back shortly. Would three o'clock be okay? He fished for a clue, saying that he had told the President only that it was some matter involving the Court. "Was that enough to tell him?"
Yes, that was enough, Stewart said. Now he was committed to meet with the President, but he still had several hours to think. Stewart knew that he had supporters from Ohio, the Middle West and in G.O.P. circles, who were urging that he be made Chief Justice. But did he really want it? Admittedly, he was ambitious, and there had been a certain natural progression to his career, always up, always the best. If he got the job, the new era would become "the Stewart Court." Technically, the Chief was only first among equals, but the post of Chief Justice had definite prestige.
On the other hand, the Chief's vote counted no more than that of any of the other eight Justices. The Chief also had the additional chores of administering the Court and managing the building. In terms of pure lawyering, it was better to be an Associate Justice. All law and no nonsense. Did he want to be involved in all the tedious little decisions? To oversee committees and groups like the Judicial Conference, which was a "board of directors" of the federal judiciary and the judges' lobby? No, he concluded, he did not want to be bothered. If he got the job of Chief, he would rarely see his family and have even less time to relax. His summers at his Bowen Brook Farm in New Hampshire would be disrupted. On a superficial level, there were big plusses. On a deeper level, there were not so many. Less law. More bureaucracy.
There were other considerations. Stewart had seen what President Johnson's feeble attempt to get his friend Abe Fortas moved from Associate to Chief had done to the Court. There had been other troubled times when Associates had been promoted. Stewart thought two of the most unharmonious times at the Court had been in 1910, when Justice Edward D. White had been made Chief, and again in 1941, when Justice Harlan Fiske Stone was elevated above his peers.
The process of getting confirmed might be both contentious and some fun, Stewart thought. A likely target for critics might be his 1964 opinion ruling that a French film, The Lovers, was not hard-core pornography (Jacobellis v. Ohio). He could not define obscenity, he had written, but "I know it when I see it." It might not be the height of legal sophistication, but the remark expressed Stewart's Middle Western pragmatism.
The biggest adjustment would be a loss of privacy. Associate Justices could live private and relatively anonymous lives. Stewart could walk about Washington unnoticed, eat lunch without interruption. There were few autograph seekers. That would change. The job of Chief was considered by some to be the most powerful position after the presidency. There would be another F.B.I. check, a Senate investigation, and hearings before the Senate Judiciary Committee. The press would become more interested in him. He would be in the limelight. And when he got down to it, that was perhaps the biggest problem. When he had been nominated for the Court in 1958, then Deputy Attorney General William Rogers had asked Stewart if there was anything in his past that might embarrass him or the administration. Stewart had thought of some things an editorial he had written for the Yale Daily News endorsing Democrat Franklin D. Roosevelt for President in 1936; or perhaps that particularly drunken evening in his sophomore year. But nothing serious. Now it was a little different. Was it fair to his family? Would he have to wonder whether his private business might appear in the newspapers, if only in a gossip column?
Stewart left his chambers in plenty of time to be at the White House before 3 P.M. His stomach knotted as he drove through the Washington traffic. He was being awfully presumptuous. The President had not offered him the job. But if he took himself out of the running, he wouldn't have to deal with temptation if it came. If the position were actually offered, it would be harder to say no. Stewart drove through the White House gates and was escorted into the Oval Office.
Nixon greeted him warmly.
Stewart said that it had been a great thing for the President to have had the dinner for Warren.
The President talked about whom he might pick as his Chief Justice. "Potter," Nixon said, "there has been an awful lot of support for you."
Stewart said he knew that there had been speculation, the inevitable lists. But he had come, he said, to tell the President that he didn't want it, that he didn't want to be considered, that he wanted to be out of the running.
"Why?" Nixon asked in surprise.
Stewart recited his speech. In his opinion there were inherent, perhaps insurmountable, problems in promoting one of the sitting Justices. Historically it had not worked. The Chief Justice had a special role to play as leader of the Court and it might disturb relationships that had been worked out over the years to appoint one of the eight Associates to be Chief. Promoting a sitting Justice would not be the best way, Stewart said.
Nixon paused. "Let me remember who is on the Court," he said. First he mentioned the hapless Fortas. Nixon looked at Stewart. Slowly he listed the others.
Fortas, Stewart thought? Was the President thinking of appointing Fortas? No, absolutely not; out of the question. But Stewart realized it was possible that Nixon was thinking of another sitting member. The only other Republican was John Harlan, but he was almost seventy and nearly blind. Perhaps Nixon was thinking of a Democrat?
Stewart mentioned that Roosevelt had elevated Harlan Stone, a Republican, to Chief Justice on the eve of World War II as a nonpartisan act of national unity. Maybe that wouldn't be a bad idea, appointing a Democrat.
Nixon went down the list of Democrats. There was William Brennan, who had been appointed by Eisenhower, and there was Byron White...could Nixon be thinking of White? Unlikely. White had been a Kennedy appointee, and Stewart knew what Nixon thought of the Kennedys.
Then Nixon mentioned Fortas again. Why? Stewart wondered. Why was Nixon bringing up Fortas? Did he want some reaction? Stewart had little to say about Fortas. It was obvious that it had been a mistake for Johnson to attempt the eleventh-hour elevation of his close friend and adviser. It had hurt the Court, had made for strange, uneasy relations among the members. Stewart said it would be better not to put the Court through that again, nominating someone from the ranks. But Stewart was a little uneasy. He mentioned his own position again and, in a general way, the needs and desires of his wife and children, their high regard for privacy. "It would be unfair to my family," he said.
Nixon said he understood. He asked more questions about the Court and its members. He was keenly interested, concerned about the federal courts. There was much to do, and as President he wanted to help.
Finally the two men stood and shook hands, and Stewart left. The meeting had taken longer than he had expected, but he felt a sense of relief.
As he drove back, Stewart regretted that he had given phony reasons for taking himself out, but it had been necessary to protect his family. It was odd the way the President kept bringing Fortas up. What was that about? Stewart wasn't sure he had done the right thing, but he felt better than he had felt in a long while.
Nixon was giving a good deal of thought to the Court. He wanted to make good on his campaign pledge to turn it around. Replacing Warren was not enough to break the back of the working Warren majority which had included Warren himself; Fortas; Thurgood Marshall, the first black member of the Court, who had been appointed by Lyndon Johnson; William J. Brennan, another Eisen-hower appointee who had turned out differently than Ike had expected; and William O. Douglas, seventy, a radical libertarian famous for his controversial writings and life, both on and off the bench. Nixon snickered about Douglas's fourth wife, Cathy, who was twenty-five and a law student. "Some law firm will love to get her," he told Ehrlichman.
The five-man liberal majority had support on race and civil rights issues from Byron White and Hugo Black. A new conservative Chief Justice, with Stewart and Harlan, the only Republicans on the Court besides Warren, would still give the Court only three "strict constructionists" those who opposed a sweeping, liberal interpretation of the Constitution. White and Black might join the conservatives in certain criminal cases, but one could never be sure. The President needed at least another seat to turn things around, and Douglas seemed most vulnerable to a quiet administration investigation. On taking office, Nixon lost no time putting various federal agencies to work on it. The Internal Revenue Service began an audit of Douglas's tax returns only five days after the President's inauguration. At the same time, the F.B.I. was compiling information on Douglas's connections with Las Vegas casino owner Albert Parvin. Douglas was a director of the Albert Parvin Foundation. But the Douglas investigations were slow in bearing fruit.
Now, unexpectedly, another track opened up. John Mitchell's Justice Department was providing assistance to Life magazine in its attempt to establish that in 1966 Abe Fortas had accepted a $20,000 fee from a foundation funded by millionaire industrialist Louis Wolfson. At that time Wolfson had been under investigation by the Securities and Exchange Commission, and had apparently bragged that his friend Fortas was going to use his influence to help. Wolfson was indicted and later convicted, and Fortas secretly returned the $20,000.
When Nixon was informed of the investigation, he realized that Fortas's actions were perhaps not necessarily criminal. But there was an opportunity not only to get Fortas off the Court but to discredit his strident liberalism. The Fortas investigation became one of Mitchell's first action projects, and Nixon demanded almost minute-by-minute reports, personally calling the shots from the Oval Office.
On May 1, Mitchell received a memo from Assistant Attorney General William H. Rehnquist. If Fortas had helped Wolfson, it said, they could prosecute him. The next day, May 2, Ehrlichman received a single copy of the advance proofs of the Life article. Spread over six pages, it was headlined, "Fortas of the Supreme Court: A Question of Ethics." Mitchell had an aide call every major news organization in town to alert them. When the article was released on Sunday afternoon, May 4, Washington exploded. Republicans called for impeachment. Democrats and liberals were stunned.
But Nixon didn't want an impeachment. It would take too long and might in the end hurt the Court. All Nixon wanted was Fortas's seat, and he wanted it intact, not devalued. Resignation was the obvious short cut. With the departure of Fortas and Warren, Nixon could name two justices. That would end the control of the liberals. In his first year, he would have altered the character of the Court.
On Tuesday, May 6, Wolfson surrendered to government investigators a document that showed that the $20,000 was not a one-time payment. The Wolfson Foundation had agreed to pay Fortas $20,000 a year for the rest of his life, or to his widow for as long as she lived.
When Mitchell arrived at Dulles Airport at 1:30 A.M. after a trip to New York, his aides showed him the documents. Mitchell was incredulous. He thought they might be phony. He was assured they were not. The news was forwarded to the President. Nixon and Mitchell agreed that the Attorney General should go to Earl Warren. With the Congress and editorial writers howling for Fortas's head, pressure from inside the Court might force the issue.
Entering the Court through the basement garage, Mitchell called on Warren in his chambers at eleven-thirty Wednesday morning. The meeting was to be confidential. Laying out the documents in his possession and referring to others, Mitchell outlined the developing case against Fortas. There was not only the contract specifying the annual payment, but he was about to obtain some Wolfson-Fortas correspondence in which the S.E.C. case was discussed. In one letter Wolfson asked Fortas's help in obtaining a presidential pardon.
Warren thanked Mitchell and said that he appreciated the information. Mitchell mentioned how embarrassing this was for everyone. Approaching the subject delicately, he said that if Fortas were to resign voluntarily, the criminal investigation would "die of its own weight." An investigation would harm both Fortas and the Court more than a resignation would. Warren got the message.
From the beginning, Warren had been appalled at the disclosures about Fortas and had felt that Fortas must quit. The argument was now more compelling. After securing the support of several of the other Justices, Warren launched a week-long campaign to get Fortas to resign. Only Douglas resisted overtly. He had been Fortas's professor and mentor at Yale Law School and later in Washington. Douglas himself had discussed retiring, but, loath to give Nixon a seat to fill, he decided not to retire while the Court was still under attack.
Nonetheless Douglas was surprised by Fortas's transgression. "God, how did Abe do such a stupid thing?" Douglas asked.
In Warren's view, Fortas had two problems that had led him to such indiscretion. As a private lawyer in Washington and a known intimate of the President, Fortas had made a fortune. He had had to take almost a 90 percent cut in salary when he came to the Court, and he had not wanted to alter his life style.
Second, Warren concluded, as a bright man who had come to Washington during the New Deal, Fortas had made rules for others to follow, but had never thought they applied to him.
There were meetings and some heated sessions, and one week later, on Wednesday, May 14, Fortas sat down in his office and drafted his letter of resignation. He understood that all the evidence would be locked away. Jubilant, Nixon called Fortas to express his sympathy.
It was over for Fortas, but now two other Court liberals Douglas and Brennan came under attack for off-the-bench financial activities. Douglas was criticized for his $12,000-a-year direc- torship on the Albert Parvin Foundation. After thirty years on the Court, Douglas was accustomed to political attack. But the Fortas affair cast things in a different light. He decided to resign from the Foundation post on May 21.
Some conservatives went after the sixty-three-year-old Brennan. News stories had raised questions about a $15,000 real-estate investment he had with Fortas and some lower court judges, including Bazelon. Brennan was hurt by the criticism. He had grown up on the poor side of Newark and learned the rough-and-tumble of politics from his father, an Irish immigrant who was by turn a union leader, a Democratic politician, and a police commissioner. After a brief tenure with a private law firm, Brennan served as a state trial, and then an appellate court, judge. In 1956, Eisenhower elevated him from the New Jersey State Supreme Court to the U.S. Supreme Court. Brennan's life was a model of upward mobility through conscientious public service. He was furious at the press for implying that his review of decisions by other judges would be influenced by the fact that they shared common investments. He suspected that the attack was led by those who resented his central role in the Warren Court, his unflagging support for unions and civil rights groups, and his votes restricting the powers of police.
In May, Brennan decided to lower his profile. "Well, guys," he said, walking into his clerks' office, "I'm eliminating all this." He formally canceled all future speaking plans, gave up his interest in the real-estate venture, sold his stock, quit his part-time summer teaching post at New York University, and even resigned from a board at Harvard University. He gave up every activity except the Court, his family and the Church.
One clerk who felt Brennan was overreacting asked him jokingly: "Did you write the Pope?"
Brennan, the Court's only Catholic, was not amused.
The weekend after the Fortas resignation, Nixon was at Camp David, the presidential retreat in Maryland. With the liberals dazed by the Fortas revelations, it was time to choose his Chief Justice, perhaps the most important decision he would make as President. Mitchell had prepared a list of appeals court judges. Nixon wanted someone with judicial experience, someone whose views were fully predictable, not a crony or political friend, someone with integrity and administrative ability. Someone young enough to serve at least ten years.
Warren E. Burger.
On May 19, the President instructed Mitchell to begin the necessary F.B.I. investigation and report back at once. Burger checked out. On Wednesday, May 21, Nixon told Mitchell to offer Burger the appointment formally.
Only in Mitchell's office did Warren Burger learn that he was to be named Chief Justice of the United States. He accepted at once. A regular appointment to the Court would have been enough. Chief was incredible. Already he felt a kinship with these people, with Mitchell and Nixon. They were the men who had taken over the national government, and they had selected him over all others.
Nixon was obsessed with keeping the nomination secret until he could announce it on national television that night. Burger would be smuggled into the White House. They would stride before the cameras together. There would be no leak. The President was stage manager. He sent an aide out to bring Burger and his family in, and he organized the transportation, the timing, the sequence. Watch-ing, Ehrlichman thought Nixon seemed as interested in the secrecy as he was in the appointment. Apparently Nixon felt that if he could make the announcement before a leak occurred, he would have outwitted the press.
Burger went home to prepare his family, making sure that everyone looked proper for the ceremony. They were picked up about 6 P.M., driven to the Treasury Department and guided down to the basement and through a long steam tunnel. They made their way to the White House and came up in an elevator at 6:57, three minutes before air time.
The President was waiting. He walked over to Burger.
"Well, will you take the job?" Nixon asked.
Burger paused. "You know, I know that question is somewhat facetious," he said. "But as I thought about it this afternoon, I had some concern." Of course he would accept, but he recognized that he was undertaking a tremendous responsibility.
As they stood chatting, Burger said: "Sometime when we have more time to talk, I want to thank you for this."
Nixon said he wanted the Burgers to come up for coffee after the ceremony to meet the Cabinet members and their wives. He added nervously, "I wanted to apologize for the fact that we couldn't have you to dinner because it would be too many."
"Don't worry about that, Mr. President," Burger said. "After what happened to me this afternoon, I am just going home to bed."
At 7 p.m. Nixon and Burger walked before the cameras. The next morning, the appointment was the lead story in every newspaper. New York Times columnist James Reston wrote that Burger was "experienced, industrious, middle-class, middle-aged, middle-of-the-road, Middle-Western, Presbyterian, orderly, and handsome." He took note of the liberals' and intellectuals' distress and added that "the old-boy network is grieving that the President did not elevate Associate Justice Stewart to the top job." The New York Times also quoted an unnamed judge who had worked with Burger on the Court of Appeals: "[Burger] is a very emotional guy, who somehow tends to make you take the opposition position on issues. To suggest that he can bring the Court together as hopefully a Chief Justice should is simply a dream."
Many who knew Burger's old foe, Bazelon, suspected that the comment was his. But Bazelon denied having talked to the press. "I was speechless and sick for a week," he said.
Burger stayed home to avoid the reporters who had gathered at the bottom of the driveway of his Arlington, Virginia, home. He requested that the reporters and cameramen be kept off the fifth floor at the Court of Appeals, where his office was, even though he was staying away. Later, he learned that the lobby had been filled with the press despite his request. "The only way they could have gotten in is Bazelon," Burger told his staff. "If I can prove it's true, I'll punch him in the nose."
Burger expected that his confirmation hearing before the Senate Judiciary Committee, which had to approve the nomination before it would be passed to the full Senate, might be a bloody battle. He envisioned a whole confederation of liberal interest groups planning to tear into him. "They're out to get me," he told his clerks as he brooded over the prospect. The opposition included Bazelon, the other liberals on the U.S. Court of Appeals for the District of Columbia, and some liberal Justices like Brennan. It also included the young coat carriers, who seemed to rotate from a clerkship with Bazelon to a clerkship at the Court, perhaps for Brennan, before taking a job on the Hill, where they were always whispering into the ears of liberals like Senator Edward M. Kennedy at hearings.
Burger was sure that Kennedy would lead the opposition on the Senate Judiciary Committee. As a Republican nominee before a heavily Democratic Senate, he would be hard pressed. Nixon's pronouncements about changing the Court were an open challenge to the liberals.
Burger went to discuss the confirmation process with the chairman of the committee, Senator James O. Eastland of Mississippi. The aging conservative was a sure supporter. Eastland recommended that Burger use Eastland's own personal attorney, Roger Robb, already a close friend of Burger's, to assist him in the hearings. Burger took the advice. With Robb, he set up an office in the Watergate office complex, where they assembled records and previous opinions and tried to anticipate what curves the liberals might throw at Burger. They also gathered support from the organized bar associations, from law school deans, and from influential private attorneys.
Burger went to the Supreme Court one day and stopped by to see Brennan, the consensus builder in the Warren Court. Burger knew it was Brennan, with his instinct and passion for political maneuvering, who was the key strategist among the liberal bloc on the Warren Court. As Burger entered Brennan's chambers along the south corridor, he walked through the office used by Brennan's law clerks. There, hanging on a wall, was a grotesque rubber mask of Nixon, a souvenir of the counterinaugural demonstration that had been staged by antiwar activists and others opposed to the President. He recognized one of Brennan's clerks as a Bazelon clerk of the previous year. The clerk was scheduled to begin work for Kennedy on the Senate Judiciary Committee at the end of the term.
Learning that Brennan was not in the office, Burger turned to leave. On the inside of the door there was a Black Power poster with the clenched, raised fist. Burger sensed what he was up against. Brennan's law clerks did not share his values. They were part of a different world. Bazelon to Brennan to Kennedy.
On Tuesday, June 3, two weeks after his nomination, the Senate Judiciary Committee opened hearings. Burger was ready as the session opened at 10:35 A.M. Behind him in the audience sat six past presidents of the American Bar Association, eleven past presidents of the Federal Bar Association, and twelve past presidents of the District of Columbia Bar Association. All were prepared to speak in support of his nomination.
Burger was offered a few easy questions by Eastland and other members of the committee. Finally, from his hunched position, Eastland turned to the man Burger was certain would present him with a problem. "Senator Kennedy," Eastland mumbled.
"No questions, Mr. Chairman," Kennedy replied in his confident Boston accent.
Each Senator took his turn, and there was not a word of criticism. The members seemed almost to compete with each other to praise Burger and take shots at the Warren Court. The hearing was adjourned in less than two hours. Burger was ecstatic. The committee unanimously recommended his confirmation to the Senate. Six days later the Senate voted 74 to 3 to confirm him. The process from nomination to confirmation had taken only eighteen days.
A week later, only one week before he would be sworn in as Chief Justice, Burger was in his office at the Court of Appeals when he got some very distressing news. The Supreme Court had announced that it had overruled his Court of Appeals decision in a case involving the flamboyant New York black Congressman Adam Clayton Powell. The vote was an overwhelming 7 to 1, with Stew-art the lone dissenter. Warren himself had written the majority opinion (Powell v. McCormack). The press would have a field day.
The House of Representatives had voted to deny Powell his seat because he had flouted a slander judgment and allegedly had misused funds. Burger's opinion, one of three separate ones, held for the House against Powell. Powell had appealed to the Supreme Court, and now Warren had declared for a heavy majority that Congress could not deny the Congressman his seat. The reversal was a typical example of the Warren Court's activism mere meddling in Burger's view. He had already been overruled twice that year, but this was the first time since his nomination. There should have been some way for Warren to avoid a direct slap at him, perhaps with an unsigned opinion. Being reversed by the Supreme Court, however, would soon be a thing of the past. He could take comfort in that. In one more week, the Warren era would be over.
Burger vowed to himself that he would grasp the reins of power immediately. David Bazelon would be his model. For the past six years he had watched enviously as Bazelon used his position as Chief Judge to serve his own philosophy. As spokesman for the Court of Appeals, as its senior judge and chief administrator, Bazelon was able to assign extra law clerks, and control the office space, supplies and accouterments that make working conditions a pleasure or an annoyance. His influence with his colleagues, and especially the new judges, was legendary. They fell all too easily under his spell. For Burger, that too was now an old battle, a thing of the past.
Later that week, Burger left his office in the Court of Appeals and went out to Pennsylvania Avenue to meet the Solicitor General Erwin N. Griswold, the man responsible for arguing the federal government's cases before the Supreme Court. Griswold had the presidential commission, signed by the President and the Attorney General, that appointed Burger. It was to be delivered to the Court before the swearing-in.
Griswold and Burger took a cab to the Court, where Warren greeted them in his chambers. The Powell case was apparently on his mind. "I hated to decide for Powell," Warren told them.
Griswold thought Warren was going to explain the difficulty and awkwardness in overruling the next Chief Justice perhaps apologize, saying that, of course, he had to call them as he saw them. Instead, Warren told them that he didn't like Powell and regretted having to decide in his favor. Powell was a disgrace, Warren said. But as a matter of law, it would be impossible to let Congress exclude members in such fashion. In denying Powell his seat, Congress had asserted an absolute and unreviewable right to determine who was suited to sit, contrary to what the Constitution said. "It was perfectly clear," Warren remarked. "There was no other way to decide it. Anybody could see that."
My God, Griswold thought, Warren must not realize that Burger was one of the lower court judges he had just overruled. Griswold knew Warren did not write his own opinions, but was he so out of touch? Griswold carefully avoided looking at Burger. He would have smiled, and perhaps Burger would not think it one bit funny. The meeting was soon over and as they walked out, Burger good-naturedly shrugged off Warren's comment. "He certainly didn't give me much credit for what I did in the Adam Clayton Powell case," he told Griswold.
Burger had heard that Warren delegated the writing of his opinions to his clerks. That was only one of the many practices that he was going to stop. As far as he was concerned, the Warren legend was a fabrication. He thought Warren was sloppy, politically motivated, interested more in results than in legal reasoning. He was a man playing to get himself a place in history, a man without intellectual honesty. Burger used to talk scornfully to his clerks about Warren's liberalism. It was late in coming, he said. Warren had been aligned with the right wing of the Republican party in California and was supposedly a states' rights champion. As governor he had strongly supported the internment of Japanese-Americans during World War II. As district attorney, he had authorized offshore searches of questionable legality outside the three-mile limit. Burger told his clerks that Warren was "right-wing when it paid to be right-wing, then had shifted when that became fashionable."
On June 23, Burger joined the members of the Court, the President, Attorney General Mitchell, other ranking Justice De-partment officials, including F.B.I. Director J. Edgar Hoover, and members of the legal and Republican law-enforcement establishment for his swearing-in at the Supreme Court.
Since it was the last day of the term, the Warren Court first handed down its three final opinions. The decisions, all involving criminal cases, effectively overruled three more conservative precedents. They were precisely the kinds of opinions that Nixon had campaigned against.
Nixon, dressed in a formal cutaway, showed no emotion. When the last opinion was read, Warren recognized the President. Nixon stepped to the podium. "There is only one ordeal which is more challenging than a presidential press conference, and that is to appear before the Supreme Court." He reviewed Warren's career and praised the Chief Justice. But, he added, "The Chief Justice has established a record here in this Court which will be characterized in many ways."
In response, Warren gave a lecture his last words from the bench which seemed directed at Nixon. There was acid in the oblique graciousness. His theme was continuity. "I might point out to you, and you might not have looked into the matter, that it is a continuing body...the Court develops the eternal principles of our Constitution in accordance with the problems of the day." It was Warren's way of saying that Richard Nixon too would pass. The Court, Warren said, serves only "the public interest," is guided solely by the Constitution and the "conscience" of the individual Justices. He was stepping down, Warren said, with a feeling of "deep friendship" for the other Justices "in spite of the fact that we have disagreed on so many things.
"So I leave in a happy vein, Mr. President, and I wish my successor all the happiness and success in his years on the Court, which I hope will be many."
Copyright © 1979 by Bob Woodward and Scott Armstrong