by Jim Newton
Orie Phillips and John Parker, two well-regarded federal judges, made Brownell’s first cut. So, as Reston predicted, did Vanderbilt, though Brownell uncovered a concern about his health—the justice had “suffered a heart attack, although that was not generally known.”11 Brownell considered proposing the elevation of Associate Justice Jackson, but Jackson, the chief prosecutor at the Nuremberg trials, had publicly and intemperately blamed Black when passed over in favor of Vinson, an ugly episode that critics remembered well.12 In addition, Jackson’s support for FDR’s court-packing plan years earlier had made him controversial in Congress. Jackson would not get the nod.
Promoting another justice also received some thought, but by then the Supreme Court had eight Democrats and a single Republican, Harold Burton. Few considered Burton worthy of the chief justiceship; the Eisenhower administration never seriously considered elevating him. With Jackson and Burton eliminated from contention and the rest of the justices of little appeal to a newly elected Republican president, the search returned to candidates not then serving on the Court. Reflecting his deep conservatism and discomfort with the rumbling of racial equality, Eisenhower for a time considered John Davis, a distinguished lawyer and onetime Democratic presidential candidate then representing the Southern states in a case pending before the Court. Within a year, its caption alone would become a hallmark of American history—Brown v. Board of Education. As counsel in that case, Davis was arguing on behalf of the proposition that white and black children should not be required to attend the same public schools. Although he was dropped from the list of candidates—largely, it seemed, because of his age, not his politics—Davis’s initial place among the contenders foreshadowed Eisenhower’s tragic ambivalence about the opening of American institutions to blacks.
As other names came and went, Warren remained. In one sense, he was a stretch—he had, after all, never served a day as a judge. But neither had a number of the Court’s dominant figures of the period; Frankfurter, Jackson, and William O. Douglas all came to the high court without any judicial background, and Black had served as a night police court judge only briefly. Warren, meanwhile, had other credentials to commend him. He was a towering figure in the West and in American politics at mid-century. Philosophically, he was a Progressive Republican, a rare species nationally but part of a potent political tradition in California and seemingly one not unlike Eisenhower’s centrist Republicanism. Warren’s long and complicated record—as a former Alameda County district attorney and state attorney general—included vigorous prosecutions of Communists and labor activists, support for tax hikes and universal health insurance, and outspoken support for the internment of Japanese-Americans during World War II. Through all that, Warren, far more than any contemporary or successor, mastered California’s complex and sometimes vicious politics. He counted among his allies the conservative publishers of the Los Angeles Times and the Oakland Tribune, but also was accused of betraying the Republican Party’s candidates and even, with his efforts on behalf of health care reform, of socialism. And yet Warren had been elected three times as governor of California, carrying Democrats along with Republicans. His most recent campaign, in 1950, ended with his smashing defeat of none other than James Roosevelt, son of the revered former president. Warren beat him by more than a million votes.
Warren’s broad political appeal in California made him unique in American politics, but he was easy to misjudge. On one hand, he was a lifelong Republican and a determined anti-Communist who had passionately denounced the New Deal. That seemed to cast him as a type—one familiar to Eisenhower and to Republicans nationwide. But what was harder to see was that Warren’s record was not an expression of a personal philosophy so much as it was an accumulation of his experience; he learned as he went, and built up his profile as he adjusted his politics to suit the problems before him. The result is that he confused political stereotypes, and his upbringing confounded them further. California’s Progressive-era election rules favored a different type of politician, and they stunted political organizing and tactics that were popular elsewhere. Among other things, California was governed by the referendum and the recall—two measures that encouraged direct democracy and wrested power away from political parties and bosses—and the right to “cross-file,” meaning that candidates could run as Republicans, Democrats, or both. Faced with a Democratic electorate in California, Warren had adopted a commitment to bipartisanship that suited his state as well as his temperament. With this commitment as his guide, Warren led California through a period of historic growth, of breakneck expansion placidly and professionally managed. The California he inherited in 1942 was politically divided, bereft by the Depression, terrified by war. By 1953, its people were prosperous, its budget balanced, its universities envied, its politics tranquil and Republican.13
There was no arguing, then, with Warren’s record. But he was a hard man to read. His own politics were idiosyncratic, and his temperament offered a bland exterior surrounding a web of gently opposing forces. Warren was a man of order, raised in a strict Scandinavian home, taught to distrust the rowdy Western antics of his boyhood town, Bakersfield. And yet he liked a little looseness in the joints, too. As a boy, he nosed his way through Bakersfield’s saloons and whorehouses, took up the clarinet, and explored the surrounding brushland on his pet donkey. In public, Governor Warren was invariably under tight self-control, and he rarely put a revealing thought on paper. But he could lay into an aide. He enjoyed a nightly nip all through Prohibition and he nursed a lifelong love of poetry. Warren could appear simple—he favored straight prose, uncomplicated language—but he was not dumb. He was canny and insightful, and he was big. Though only just over six feet tall, Warren, with his bear chest and booming voice, commanded a room before speaking a word, even though he was in some ways shy. He could be cranky when taken by surprise.
And just as Warren was himself big, so was the canvas upon which he had painted his life and career. For Warren, no struggle was as personally or professionally defining as his labor for balance—between workers and employers; plain talk and poetry; politics and service; sobriety and good cheer; government power and individual rights; decency and self-expression; and, most momentously, the freedom of America’s people and the security of its borders and institutions.
Preoccupied with such issues and convinced that he was better suited than most to address them, Warren naturally aspired to national office, and it was in that arena that he and Eisenhower first came to know each other. Warren ran unsuccessfully for vice president in 1948, and competed for the Republican presidential nomination in 1952, losing to Eisenhower himself. The campaign was shadowed and influenced at a key juncture by a young California congressman, Richard Nixon, whose own place in history was quickly taking shape and whose legacy would develop as a counterpoint to Warren’s—Nixon the incisive, calculating political operator, haunted by his struggles; Warren the intuitive and congenial spirit, austere at times, blessed by his triumphs. By 1953, their rivalry was well on its way to becoming a Herculean political fact of the late twentieth century.
Eisenhower chose Nixon as his running mate in 1952, but that was to achieve balance on his ticket; Nixon’s youth was a prime consideration. In Warren, the president thought he saw more of himself. They were big men with heavy handshakes and open faces, comfortable outdoors and at ease with themselves, capable extroverts who liked to lead. They did not know each other well, but they appreciated each other. So it was natural that the new president should seek a place in public life for Warren. In the months of early 1953, the two discussed in person and over the phone Warren’s possible place in the administration. The president came away impressed, he wrote later, “that [Warren’s] views seemed to reflect high ideals and a great deal of common sense.”14 Eisenhower passed over Warren for his cabinet but instead proposed finding a spot for him on the Court—the first vacancy, both recalled, and Warren remembered Eisenhower offering that as “my personal commitment to you.”1
5 But the president also suggested the idea of Warren serving as solicitor general until a vacancy arose. During the second of two visits to the White House in 1953, Warren explored the solicitor generalship with Brownell and Eisenhower, and was offered the job. The position was appealing in some respects: It gave Warren the chance to return to the courtroom and would groom him for a Supreme Court appointment when one arose. And yet it would be, by most measures, at least a temporary step down. Warren had twice sought the presidency, and had come within a hair of winning the vice presidency on the ticket with Dewey in 1948. Serving as solicitor general would take Warren well away from a limelight to which he had grown accustomed. Then there was the money: Although the solicitor generalship paid $25,000 a year, the same salary he was earning as governor, the governorship came with a house and car, neither of which was provided to the nation’s chief lawyer. In effect, this would be a pay cut. Warren had spent virtually his whole life working in government. Since he had six children and no real savings, the issue of money weighed heavily on the governor.
But Warren had to wonder about his options. He was already in his third term as governor, and his ambitions for the presidency had been thwarted. A Republican was in the White House, and it was not Warren. A seat in Congress had little appeal to the longtime chief executive, private practice no draw for a man who believed implicitly in the value of service to others. As Earl and Nina traveled through Europe that summer, the two grabbed moments alone to discuss the offer and the future of their family. In the end, they realized they could not refuse, and Warren wired Brownell in the code the two had devised: “Thanks for message. Stop. Have been refreshed by trip. Stop. Looking forward to my return to work.” Brownell consulted with Eisenhower, then responded, “We are both gratified to receive your cable.”16
Warren then returned to California and, knowing that he had an offer in his pocket, announced that he would not seek another term as governor. “I will not be a candidate for the governorship next year, and the people of California should be the first to know that fact in order to have ample time for the selection of my successor,”17 Warren told reporters. He did not say that he had accepted the job of solicitor general, leaving that for the Eisenhower administration to announce.
And then, before that announcement could be made, Vinson died. Just as suddenly, the equation changed, for while Eisenhower had seen Warren as a solid replacement for a New Deal liberal, as one of nine justices, he had not considered him for the Court’s lead role, especially so soon. The machinations began again. In their earlier conversations, Eisenhower had seen Warren’s gentler attributes; now he would learn another aspect of Warren’s character. Warren was a stubborn man.
When Vinson died, Warren struck a pose of public reserve, while at the same time moving to claim the promise he felt was his. The governor typically met with reporters on Tuesdays, but Warren canceled the event that week. He had no desire to field questions about the death and its implications for him.18 Instead, he publicly released a statement lamenting Vinson’s death but never mentioning himself as a possible successor. That allowed Warren to proceed with dignity, and it disguised, as it often had before and would in the future, his keen determination. For while Warren maintained public silence, he bluntly pressed the White House behind the scenes.
Roused by Cavanaugh that morning, Warren turned his friend loose to contain momentum for a Catholic candidate. Warren then began to work the phones. He called California’s chief justice, Phil Gibson; the state’s attorney general, Pat Brown; and its junior senator, Tom Kuchel. He conferred with one of his most trusted political advisers, an elegant and insightful San Francisco lawyer named Jesse Steinhart. And all through that day and the next and the next, Warren placed calls to judges, law professors, and politically connected men—Judge John Gabbert in Southern California, Professor Arthur Sherry in Oakland, Judge Paul Vallee in Los Angeles, Judge Murray Draper in San Mateo, kingmaker Asa Call in Los Angeles. These were men who knew politics and the law, men with reach to Washington. In those crucial days, as Brownell and Eisenhower contemplated their pick, Warren called in chits.
Warren was right to recognize that he needed to bring pressure on Eisenhower. Despite his promise, Eisenhower felt no obligation to Warren. The pledge, Eisenhower told Brownell, was offered for an associate justice’s seat, not for the chief justice’s slot. As such, Eisenhower did not feel bound by it. Indeed, unbeknownst to Brownell, the president offered the position to Secretary of State Dulles, who said he was “highly complimented by the implication that I might be suited to the position of chief justice, but I assure you that my interests lie with the duties of my present post.”19
Eisenhower may have counted on Warren’s affability in trying to renegotiate the terms of their understanding. If so, he made the mistake that many others had: confusing the governor’s congeniality with a lack of purpose. Warren would not release Eisenhower from his promise, continuing to maintain that he had an offer and he intended to accept. So while his friends made their calls and advanced Warren with the press and the president, Warren himself deliberately cut off communications, taking two of his sons hunting on an island off the coast of Southern California, out of reach of reporters and of White House aides interested in cutting a deal. That left Eisenhower to ponder the reaction to passing over the candidate by now seen as the leading contender. And it gave Warren time to prepare for a final round of talks with the White House.
“It was kind of a hideout,” Warren explained years later. “I didn’t want to be in on the middle of all that speculation and answering questions and so forth.”20
Hurrying now, Brownell checked out the possible nominees. He peppered Warren’s friends and associates with questions. “The particular question that they were asking me was whether he had really had any amount of trial work,” recalled longtime associate Warren Olney III, another of those very few who cracked Warren’s public façade and grew to know him up close.21 Olney was never asked whether Warren would make a good chief justice; he figured Brownell already knew how he would respond.
On Friday, September 25, the Coast Guard tracked down Warren and his sons on their deer hunt and delivered word that the governor was urgently being sought by officials from the White House. The Warrens were eating breakfast when the Coast Guard arrived. They boarded a PT boat and raced to shore, where they were escorted to a beach house belonging to a friend and hunting partner of the governor’s. There, with Earl Warren, Jr., listening in, Warren spoke with Brownell. Again, the attorney general raised the possibility of Warren’s accepting another appointment. Again, Warren refused. “The first vacancy,” Earl Jr. recalled his father saying emphatically, “means the first vacancy.”22
Unable to persuade Warren by phone, Brownell flew to McClellan Air Force Base in Sacramento that Sunday, the sole passenger on the military plane. Warren arrived without fanfare, still dressed in his hunting clothes. And there Brownell tried one last time to talk Warren out of the chief justiceship. Finally and insistently, Warren held his ground, repeating his position in almost the same words that he had used in their telephone call. “Warren made it plain that he regarded the present vacancy as ‘the next vacancy,’” Brownell said later.
“So after a couple hours out at McClellan Field in one of the offices out there,” Merrell F. Small, the governor’s administrative secretary, said, “Brownell went back and told Ike, ‘We’re stuck with him, I guess.’ ”23
The governor emerged smiling.
The announcement was Eisenhower’s to make, not Warren’s, so the governor kept his peace for the next day or two. With one exception. Early on the morning that his nomination was to be announced, Warren this time sought out Cavanaugh. “We made it,” Warren said. “On the bench?” Cavanaugh asked. “No,” Warren responded. “The top job.” Delighted, Cavanaugh said he’d call up the Carmelites and get them off their knees. “They’ve been praying for five days.”24 Warren made them wait a few hours longer, until Eisenhower made it officia
l.
Eisenhower did so later the same day, September 30, as he told reporters of his intention to appoint Warren, confirming widespread reports by then that the nomination was assured. That Friday evening, Earl Warren addressed the state of California as its governor for the final time; he was sworn in as chief justice on Monday morning. Eisenhower and Nixon shared the front row.25
The early response was positive, though notably cautious. The New York Times praised Warren’s intelligence, tact, and qualifications, and noted, “Nobody can know in advance what will happen when a first-class mind, of whatever previous experience, is applied to our highest constitutional problems.”26 At the Los Angeles Times, Warren was seen as one of that paper’s own, and his appointment was cheered as “A Great Honor for California.” The staunchly Republican paper welcomed the first nominee placed on the bench by a Republican since 1932 and hoped it would begin “an upgrading of the quality of the court, which it much needs.”27
It would not be long before Republicans—at the Los Angeles Times, in the Eisenhower administration, and elsewhere—would learn how elementally they had misjudged Warren. Eisenhower would later harbor second thoughts about this early appointment, one that would make him responsible, at least indirectly, for some of the most revolutionary social and legal change in American history. Indeed, soon after appointing Warren, Eisenhower would instruct Brownell never again to recommend a Supreme Court nominee who did not have a judicial record upon which to predict how he might perform as a justice.28
