The Brethren Read online

  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 Bryon 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 Eisenhower 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

  * In a June 2, 1969, memo to Attorney General Mitchell, F.B.I. Director J. Edgar Hoover stated that a reliable source had informed the F.B.I, that, "in connection with the investigation involving former Supreme Court Associate Justice Abe Fortas, the Department furnished considerable information to William Lambert, writer for Life magazine, which not only enabled Lambert to expose the Fortas tie-in with the Wolfson Foundation but additionally kept Lambert advised" regarding its own investigation into the matter. It is perhaps significant that Hoover did not name any individual, but simply "the Department of Justice." It suggests that his reliable sources indicated that the leaks were official, perhaps authorized by Mitchell.

  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 dis
cussed 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 directorship 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. Watching, 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 pronounc
ements 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 counter-inaugural 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.