The Brethren Read online

  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 President. 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 Eisenhower'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.

  * Congressional Quarterly's The Supreme Court: Justice and the Law, 2nd ed., p. 163.

  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.

  * There are three levels of courts in the federal judiciary:

  —District Courts with about 600 judges; these judges, at the first step in the federal system, hear and try cases.

  —Circuit Courts of Appeal; there are eleven of these intermediate circuits numbered First (New England states) through Tenth (Western states) plus the Circuit for the District of Columbia. There are from four to fourteen appeals court judges in each circuit. These judges hear appeals from the district courts and interpret the Constitution, Supreme Court rulings and federal laws.

  —The Supreme Court, with nine members, reviews decisions made by both federal courts and state courts and handles other matters, such as disputes between states.

  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 pre-trial 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 anti-crime 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 arch-enemy 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 over-exertion. 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.