A Well-Paid Slave

by Brad Snyder

  A question then arose that had not been asked of Flood. If he won a large damage award, would he pay the association back for legal fees and expenses? And would he agree to such an arrangement in writing? Miller explained that the chances of Flood receiving any monetary award were almost none, but that he had not broached the subject with Flood. Miller left the room, found Flood in the hotel, and explained the players’ request. Flood readily agreed to sign a written pledge to pay the association back if he was awarded damages that exceeded his legal fees. This may have seemed like a petty request by the players considering that Flood was the one risking everything, but the association’s entire operating budget for 1970 was $195,000, and Flood’s legal fees could run $200,000 to $300,000. When Miller returned to the room, he assured the players that Flood would sign such a document.

  Miller then asked if there was anyone in the room who felt that the association should not assist Flood. No one said anything. Ron Brand made a motion to take all necessary action to support Flood. McCarver quickly seconded it. The player representatives voted 25-0 to pay Flood’s legal fees—with all legal bills still subject to the association’s approval— in exchange for the right to select his lawyer.

  Flood was ecstatic about the unanimous show of support—all of which still remained a secret. He and the players posed one more question to Miller: Whom should they hire as Flood’s lawyer? Miller assured them that he had an extremely prominent attorney in mind. He did not tell them that his choice was a former Supreme Court justice.

  CHAPTER SIX

  The nameplate on the door of his office read “Mr. Justice Gold berg.” It had been more than four years since he had resigned from the Supreme Court. His partners at the New York law firm Paul, Weiss, Goldberg, Rifkind, Wharton & Garrison included former U.S. attorney general Ramsey Clark; President Kennedy’s chief speech-writer, Theodore Sorensen; and a former federal judge, lead partner Simon Rifkind. Yet Arthur Goldberg preferred that they refer to him as “Mr. Justice.”

  Marvin Miller called him Arthur. Before Goldberg was the U.S. ambassador to the United Nations, a Supreme Court justice, or the secretary of labor, Miller knew him as the brains behind the Steelworkers Union. From 1948 to 1961, Goldberg served as general counsel for the Steelworkers and the Congress of Industrial Organizations (CIO). Many people believed that he was more powerful than the Steelworkers Union’s president. He argued Supreme Court cases, brokered the merger between the American Federation of Labor (AFL) and the CIO, negotiated with steel industry executives, and drafted legislation for members of Congress. He also worked closely with Miller.

  As Miller rose from an obscure staff economist to chief economist and assistant to the Steelworkers’ president, Goldberg raised Miller’s public profile. He selected Miller (over Miller’s immediate boss) as a member of the Human Relations Committee, which was designed to prevent another massive steel strike by addressing issues with management before labor contracts expired. When Goldberg left to become Kennedy’s labor secretary, Miller replaced him on the nine-member Kaiser Steel Long-Range Sharing Plan Committee. The Kaiser committee revolutionized labor negotiations by employing three public representatives, three management representatives, and three labor representatives to resolve issues between the Steelworkers and California-based Kaiser Steel. One of the public representatives and the chairman of the Kaiser committee was University of Pennsylvania professor George Taylor, who later recommended to pitcher Robin Roberts that the Players Association hire Miller.

  Miller called Goldberg on December 3, ten days before Flood addressed the union meeting, and briefly explained Flood’s proposed lawsuit. Goldberg suggested that they meet for breakfast.

  On the way to breakfast two days later, Miller noticed a story on the front page of the New York Times. There was Goldberg, pictured standing next to smiling former New York governor W. Averell Harriman, below the headline “21 Leaders Urge Race by Goldberg.” For several months, state Democratic leaders had been goading Goldberg to run either for the late Robert Kennedy’s U.S. Senate seat or for governor of New York. Polls indicated that Goldberg—a liberal Democrat in a heavily Democratic state, a Jew in a very Jewish city, a former Supreme Court justice, and holder of two cabinet positions (labor secretary and UN ambassador)—would win either office. In the 1966 gubernatorial race, Republican governor Nelson Rockefeller had captured only 44.6 percent of the vote. An October 1 poll showed Goldberg leading Rockefeller by 25 percentage points.

  Before they began discussing the Flood case, Miller asked if Goldberg was planning on running for office. Miller needed not only big-name legal counsel but also someone committed to litigating Flood’s case for two to three years through the federal courts. Miller did not need a lawyer who would run away in the middle of the fight if he won an election.

  When he won the election, Goldberg quickly corrected him, not if.

  Goldberg was only joking. He often said that after serving on the Court, “I took myself out of the political arena.” Declining to go into politics was his way of still acting as if he were a Supreme Court justice. “I personally do not think it is a good thing for a man who has served on the nation’s highest Court and who has dealt with political issues, even though he has resigned, to re-enter the political arena,” he said when he resigned as UN ambassador in 1968. “I do not intend to do so.”

  With this in mind, Goldberg assured Miller that he had no intention of running for governor, the U.S. Senate, or any other elected office. He did not want to be governor, he had never run for office in his life, and he was not about to embark on a career in electoral politics at age 61. Five days later, Goldberg confirmed what he had told Miller by announcing that he had no intention of running for any office in 1970. “This decision is final and not subject to change,” Goldberg said.

  With Dick Moss at his side, Miller went through the background of the case. He discussed the players’ unsuccessful negotiations with the owners to modify the reserve clause; the two Supreme Court precedents, Federal Baseball and Toolson, which exempted baseball from the antitrust laws; and the 31-year-old ballplayer willing to sacrifice his career to challenge it all in court. He explained that Flood had retained local counsel in St. Louis, but that Miller wanted a lawyer with a national reputation to take the case all the way to the Supreme Court.

  Miller could think of no one better suited for that task than Goldberg. He had seen Goldberg argue for two hours straight before a federal appeals court with only a scrap of notes in his hands. Although Goldberg was unsuccessful in overturning a lower court’s order forbidding the Steelworkers Union from going on strike, one of the three appellate judges congratulated him from the bench on his outstanding argument. In the span of three weeks in late 1959, he challenged the constitutionality of that injunction all the way to the Supreme Court. His first Supreme Court argument, representing the Steelworkers Union as a third party when President Truman seized the steel mills in 1952, had been so good that, according to Judge Abner Mikva, a Supreme Court law clerk that term, “[i]t was the overwhelming consensus of the law clerks that he was the best oral advocate not only of the day but of the entire year.” In 1957 he argued and won a Supreme Court case in the Textile Workers Union’s favor, and three years later he litigated a steelworkers’ case to the Court before allowing one of his colleagues to argue it.

  No one knew more about labor-management relations than Goldberg. He educated a callow Massachusetts senator named John Kennedy on the subject and drafted labor-reform legislation for him. Goldberg could see that Kennedy was going places. Goldberg endorsed Kennedy for president in 1960 and rallied support for him among the labor unions. Kennedy rewarded Goldberg by naming him secretary of labor. After accepting the cabinet position, Goldberg severed his ties to the labor movement and even gave up the $25,000-a-year Steelworkers Union pension that would have kicked in after he turned 60. One of the most visible members of the Kennedy cabinet, Goldberg traveled the world making speeches, mediated massive labor disput
es, and earned the president’s trust. When Kennedy nominated Goldberg to be a Supreme Court justice in 1962, the president wrote Mrs. Goldberg: “I gave away my right arm.”

  Arthur Joseph Goldberg had dreamed of becoming a Supreme Court justice since he finished with the highest grade point average in the history of Northwestern’s law school. The youngest of eleven children (including two who died before his parents emigrated from Russia), Goldberg grew up in a working-class neighborhood on the west side of Chicago. He was the only one in his family to attend school beyond the eighth grade. His father had left a Russian town near Kiev and traveled through Siberia, Manchuria, California, and Texas before settling in Chicago, where he peddled produce on a cart drawn by a one-eyed horse. He died at age 51, when Arthur was eight. Goldberg later worked his way through Crane Junior College (while taking night classes at DePaul University), Northwestern University, and Northwestern’s law school. He then sued the Illinois Bar Association over its age minimum and won admittance before the age of 21.

  Goldberg assumed the Court’s “Jewish seat,” which had belonged to Benjamin Cardozo and Felix Frankfurter. Frankfurter had stepped down on August 28, 1962, shortly after suffering a stroke. His replacement could not have been more philosophically different. Frankfurter believed in judicial restraint—strictly adhering to the Court’s past decisions and deciding cases on the narrowest possible grounds. Goldberg was a judicial activist—he saw the Court as the protector of the rights of individuals and minorities.

  Goldberg’s appointment reinvigorated the Warren Court’s rights revolution, which had begun eight years earlier with the school-desegregation cases. Goldberg and fellow liberals Earl Warren, William Brennan, and William Douglas could often wangle a fifth vote from an increasingly conservative Hugo Black or moderate Tom Clark. They protected the powerless: instructing state legislatures to draw fairer voting districts, enforcing the separation between church and state, establishing new constitutional protections for the freedom of the press, safeguarding the rights of the accused, and overturning convictions of civil rights demonstrators.

  Goldberg was in many ways perfectly suited to be a Supreme Court justice. Although not a gifted writer, he loved to generate ideas and relied on his law clerks to refine them into cogent judicial opinions. He circulated a confidential memorandum in 1963 urging his colleagues to declare the death penalty unconstitutional. Even though none of the six capital cases that term raised the issue, Goldberg made his views public in a three-page dissent. It was an idea that was a decade ahead of its time (the Court outlawed capital punishment in 1972 but changed its mind four years later). The law clerk who helped Goldberg plant those seeds of change was future Harvard law professor Alan Dershowitz. In Griswold v. Connecticut in 1965, Goldberg helped overturn a Connecticut ban on contraceptives. In a separate opinion, he wrote that the seldom-cited Ninth Amendment, which says the people retain any rights not enumerated in the Constitution, created a right to privacy.

  Goldberg’s ability to mediate disputes was a valuable skill for someone who must persuade four other justices to join his opinions. He wrote several important decisions, including Escobedo v. Illinois, which overturned a murder conviction because the confession was obtained after the defendant’s request for a lawyer had been denied. Escobedo established a right to counsel at the interrogation phase of a criminal case, which led to the famous Miranda warnings.

  Goldberg reveled in the law’s doctrinal intricacies. For Goldberg, the law was a religion consisting of a search for Talmudic truths; the justices were the rabbinical scholars. The rituals and formality of the Court appealed to a man who wore a three-piece suit to work every day. “He was happy on the Court; indeed, he was in his element,” wrote Stephen Breyer, a former Goldberg law clerk who later became a Supreme Court justice. Dorothy Goldberg wrote that her husband’s “three years on the Court were like three days.”

  But as much as he loved the law, he had trouble adjusting to the slow pace of life as a Supreme Court justice. “The [labor] secretary’s phone rang all the time,” he said. “The justice’s phone never rings.” Goldberg and his wife adapted to their more insular lifestyle by socializing with the other justices and their wives. The Goldbergs became close to the Blacks, the Warrens, and the Brennans.

  In July 1965, Goldberg made the biggest mistake of his life. He listened to the pleas of President Lyndon Johnson. Johnson yearned to put his friend and closest adviser, Washington lawyer Abe Fortas, on the Court. The president also needed a new ambassador to the United Nations after Adlai Stevenson’s death. John Kenneth Galbraith, a Harvard economist and former ambassador to India who wanted no part of the UN job, fed Johnson rumors that Goldberg was “bored” on the Court. A week earlier, Goldberg had given a speech at Harvard Law School and confided to Galbraith about his difficult adjustment to the slower pace of life as a justice (Goldberg later denied to journalists, historians, and even Johnson himself that he was ever bored on the Court or had any desire to leave).

  Johnson seized on Galbraith’s information to cajole Goldberg into one of the quickest exits in the Court’s history. Three days after Steven-son’s death, Johnson called Goldberg to the White House. While Goldberg waited outside the Oval Office, Johnson aide Jack Valenti offered him the post of secretary of health, education, and welfare. Earlier that year, Johnson had offered Goldberg the job of attorney general. “I’m not an applicant for any post—including the U.N. one,” Goldberg told Valenti. In the Oval Office, Johnson reviewed a list of more than 20 potential candidates for the UN post with Goldberg, but both men knew why Goldberg was really there. Johnson wanted Goldberg. Two days later, Goldberg flew with Johnson to Stevenson’s funeral in Blooming-ton, Illinois, aboard Air Force One. During the plane ride home, Johnson pushed all the right buttons. He appealed to Goldberg’s patriotism. The nation was at war in Vietnam; his country needed him. A former member of the Office of Strategic Services (OSS) during World War II, Goldberg was proud of his wartime service and even prouder of being an American. As the son of Russian-Jewish immigrants and the embodiment of the American dream, he felt that he owed his country. Johnson appealed to Goldberg’s ego. Only someone with Goldberg’s negotiating skills could end the Vietnam War. Johnson said he was serious about peace; Goldberg could get the credit for making it happen. Finally, Johnson appealed to Goldberg’s ambition. If Goldberg could end the Vietnam War, he might be named secretary of state or even replace Hubert Humphrey as Johnson’s next vice president. And if Goldberg were vice president, he might even become the first Jewish president of the United States. That night, after they had returned to Washington, the president called George Washington University Hospital, where Goldberg was visiting his ailing mother-in-law, and officially offered him the job. For the rest of his life, Goldberg would answer questions about why he had left the Supreme Court after just three years. He gave up his dream job for God, country, and a political pipe dream.

  Goldberg’s three years at the UN aged him 30 years. Referring to the UN’s 117 member countries, Goldberg said he felt like “a lawyer with 116 clients.” The real problem was the 117th client at home. On the Vietnam War, he was a dove in a presidential administration dominated by hawks. Syndicated columnist Joseph Alsop speculated that Goldberg would temper his views in order to preserve his vice-presidential chances. Alsop could not have been more wrong. In cabinet meetings and confidential memos, Goldberg made a persistent and persuasive case to halt the bombing in Vietnam and negotiate a settlement. Johnson, however, had no intention of pulling out of Vietnam without a victory and continued to escalate the war. Goldberg believed that Johnson froze him out of strategy sessions and kept key memos from him. The more correct Goldberg’s assessment about Vietnam proved to be, the more Johnson hated him for it. As early as December 1967, Goldberg considered resigning. The last straw was Johnson’s decision to leave Goldberg out of the Vietnam peace talks.

  On March 31, 1968, Johnson publicly announced that he would not seek reelection and priva
tely told members of his cabinet that he would understand if they decided to resign. On April 23, Goldberg submitted his letter of resignation before the entire cabinet. Two days later, Johnson accepted it. It was not a warm good-bye on the part of either man. “I don’t want the impression to be created that I am hanging around for a Supreme Court appointment,” Goldberg told the president and his cabinet. “This is not good for the country, the President, nor is it personally dignified for me.”

  Although Goldberg denied that he had made a deal with Johnson to return to the Court, some Goldberg intimates believe that Johnson promised to reappoint him as chief justice. Ten days before Johnson announced that he would not seek reelection, Chief Justice Earl Warren had summoned his close friend Goldberg to his chambers. Warren had not even told his wife yet, but he was planning to step down from the Court. He wanted Goldberg to replace him. Goldberg was moved nearly to tears and urged Warren not to resign. Warren, however, had detested Richard Nixon since their days in California Republican politics and did not want Nixon appointing the next chief. Goldberg’s wife told him that even if “nothing later may measure up to the Supreme Court experience you have had, you still have a treasure in this to remember—that the Chief should have come to you and said I know no other man who should be the Chief Justice of the United States.”

  Goldberg knew that there was no way—particularly after his latest get-out-of-Vietnam memo to the president, Secretary of Defense Clark Clifford, and Secretary of State Dean Rusk—that Johnson was going to name him chief justice. Syndicated columnist Drew Pearson lobbied Johnson to nominate Goldberg. Johnson told Pearson that the country was not ready for two Jewish justices (Abe Fortas had filled Goldberg’s “Jewish seat”). Goldberg, who reminded his wife that two Jewish justices, Louis Brandeis and Benjamin Cardozo, had served on the Court together during the 1930s, was so incensed that he wanted to confront the president: “I’ll ask him where the Constitution says the country has a god-given right to have seven Protestants on the bench but only one Catholic [William Brennan] and one Jew?”