by Bob Woodward
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 Stewart 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 Department 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."
1969 Term
By July, Chief Justice Warren Burger was in his new offices. With three months before the start of the new term, and the other Justices spending the recess at home or on vacation, he intended to consolidate his power. First, he would assume control of the building itself. On July 19, Burger, in shirt sleeves, assembled his law clerks and the Marshal—the top administrat
ive and business officer of the Court—for a tour of the large building.
Beginning in his own small office Burger remarked that it was smaller than his old one at the Court of Appeals. More distressing was the absence of an adjoining office that could be used as a workroom. As Chief Justice he was third in protocol as official representative of the United States government after the President and Vice-President He would receive ambassadors and visiting dignitaries. "How can I entertain heads of state?" he asked, pointing to his relatively cramped quarters. It would never do. What would his guests think?
Passing through the secretaries' outer office, the procession stepped through to the most secret place of the Court, the conference room where the nine Justices met to vote and decide cases. Few outsiders had seen the conference room during the Warren years. No person—clerk, staff member or secretary—was in attendance when the Justices met, usually on Fridays, to discuss cases and take initial votes.
Burger surveyed this large, oak-paneled room and its rich carpet. A twelve-foot-long table covered in green felt stood in the center of the room under a splendid chandelier, and was surrounded by nine handsome high-backed green leather swivel chairs. A brass nameplate on the back of each chair identified its occupant. The Chief Justice sat at one end of the table, the senior Associate Justice at the other. The other Associates sat three on one side, four on
the other. Now this room, the Chief said, is perfect for entertaining guests. He told the group that in the original architect's plans, the room had been intended for the Chief Justice. Perhaps the conferences might be better in larger, more formal settings, the East and West conference rooms on the other side of the building. It might be more appropriate in that "neutral corner," Burger said. Then this room could become the Chief Justice's ceremonial office. He could also use it as a private dining room. Next, Burger led the group across the corridor to the courtroom proper. They entered from behind the bench, as the Justices did when they came to hear oral arguments or announce decisions. Burger stepped down to the pit in front of the mammoth bench. The large dignified room, with its dark-red curtains, had twenty-four marble columns rising forty-four feet, cathedral-like, to a sculpted marble panel.
The new Chief stepped to the podium from which the attorneys argued their cases to the nine Justices—without witnesses and without introduction of evidence.
Oral advocacy is an art, Burger remarked. He recalled that he had stood in the same spot when he was in the Justice Department, sixteen years ago, and had argued one of the most celebrated cases of the time for the United States government. The Solicitor General, Simon Sobeloff, had refused to argue a case that involved John Peters, a Yale University professor of medicine, who had been found disloyal and dismissed as a consultant to the Public Health Service (Peters v. Hobby). The finding of disloyalty had been based on anonymous accusations. Sobeloff should have resigned, Burger said, rather than refuse to argue his client's case, even though the client was the government. Sobeloff had become a great hero to the liberals and civil libertarians. But Burger's Justice Department bosses were pleased with his loyalty. That was probably the reason, Burger said, why he was rewarded with a seat on the Court of Appeals three years later. He didn't mention that he had lost the Peters case.
Lingering now, and reminiscing, the Chief told them how he got the job as head of the Claims Division in the Justice Department in the first place. While acting as Stassen's floor manager at the 1952 Republican convention, he had helped the Eisenhower forces in a crucial credentials battle.
Burger pointed to the Justices' nine high-backed black leather chairs. Each Justice chose his own, and the sizes and styles varied. Some were nearly a foot taller than others. Douglas's was tufted, the others were smooth. It looked unseemly, disorderly, Burger said. In the future only one kind of chair would be available.
Still at the podium, his eyes fixed on the bench, Burger remembered an interchange with Justice Hugo Black during the Peters case. He pointed to the center of the bench. A question had come from there, and he was answering it when suddenly another question had come from the end. With the Justices all in a straight line at a straight bench, they could not see or hear each other. That situation should be changed he said, by curving the bench so each Justice could see his colleagues. The acoustics in the large room also were poor. That too should be corrected, he said, perhaps by installing microphones. The clerks fidgeted. Finally one of them suggested that the Associate Justices might be upset if the Chief went ahead with remodeling plans in their absence. Burger ignored him.
They walked to the outer corridor on the first floor onto which each Justice's suite of offices, known as chambers, faced. As they strolled along, Burger pointed out various problems—places in need of repainting, inadequate lighting; he would order a lighting study. There was poor utilization of office space; he would order a formal study of the use of space in the entire building. A few plants would bring life to the barren, gloomy halls. The telephone system was ancient, and the operators used old-fashioned plug-in switchboards. The cafeteria was old and run-down. There was no photo-copying equipment, so the junior Justices got unreadably faint carbon copies. There were no electric typewriters that produced print-quality letters and memos. Outside, the landscaping was lackluster, and the guards did not have the snap and attentiveness of those at the White House.
In fact, Burger concluded, the Supreme Court Building with its fine workmanship, its columns, its brass doors and best wood was as grand as the White House, but it had not been kept up. A top-to-bottom reorganization was needed. The nineteenth-century administrative system might be charming, but it was inefficient. The tour lasted two hours.
While on the Court of Appeals, Burger had enjoyed lunching regularly with his clerks. On July 21, he took his Supreme Court clerks in his limousine to one of his favorite spots, the National Lawyers Club. The quiet atmosphere allowed him to unwind, to reflect and think ahead. That afternoon he was full of political reminiscences about Ike, Bill Rogers and Harold Stassen. He missed politics, he said. The press had been unfair to Ike, claiming he lacked intelligence, and to Stassen as well, making him a political joke because of his persistent and unsuccessful tries for the presidency. Newspapers manipulated the news to fit the editors' views. Take The Washington Post. For the last decade the editors had maintained a policy of keeping the names of the conservative and moderate appeals court judges out of the paper. At the same time the paper had played up the decisions of the liberals, especially Bazelon. The clerks were skeptical. The Chief insisted that a reporter recently departed from the Post had assured him that it was the case. The New York Times and the Post were anti-Nixon, pro-Bazelon and therefore anti-Burger. Both papers had attacked him. They were not reconciled to his appointment and would continue to snipe. The Christian Science Monitor had been ordered as the newspaper for his chambers.
His mood lightened, and he said he was happy with the way things were getting organized. He wanted to move his desk and other office furniture into the conference room and get settled in as quickly as possible. When the other Justices returned, they would be confronted with a fait accompli. Burger's clerks were astonished that he would try such a move without consulting the others. He seemed to be moving toward a needless confrontation.*
Back at his office, Burger saw another opportunity to accomplish something where his predecessor had failed.
* Burger dropped his plan to make the conference room his ceremonial office when he learned through his clerks that the other Justices were opposed. They felt the room was their sanctorum. But in the meantime Burger had moved an antique desk into the room and placed it in a "T" with the conference table. When he learned of their opposition, Burger compromised. He removed the desk from the "T" but also moved the conference table to one side of the room and his desk to the other. The presence of the desk in "our room," as Black called it, still irritated the others. But no one confronted Burger directly. Burger's desk stayed.
Warren and his
Court had alienated Congress over the years, particularly the older, powerful, conservative committee chairmen, who didn't like the Court's decisions and resented Warren's aloofness.
Burger phoned Representative John Rooney, Chairman of the House subcommittee that controlled the Court's spending. Warren had said privately that the crusty, gravel-voiced, sixty-five-year-old Rooney was "dictatorial and vengeful." Burger decided to charm him. The Court needed more law clerks. Rooney told Burger that Warren had requested nine more, one for each Justice. That was too many, Rooney said. Three might be a more reasonable request.
Three would be fine, Burger said.
Rooney said that as a special favor he would see if he could get the House to approve the three additional clerks.
Burger thanked Rooney for the effort
Three days later, on July 14, the House approved three new clerks, and Rooney took to the floor to praise the new Chief Justice. The country, Rooney told his colleagues, "is in good hands when we are in the hands of Chief Justice Warren Burger...."
At the Court, Burger told his clerks of his success. The lobbying and his willingness to compromise had paid off.
On July 29, Burger decided to make a move to put a damper on Warren's recent drive to impose a rigorous code of ethics for federal judges. Warren's original interest had gained some currency in the wake of the Fortas affair. But it was a tempest in a teapot, Burger said. He drafted a strong letter to the lower court judge who headed a committee that Warren had set up to formulate a code of ethics. Codes of ethics merely drew undue attention to minor problems, Burger wrote, and they gave the press more ammunition to depict judges as crooks.
