by Jim Newton
Having completed his undergraduate courses, Warren slid without much effort into Berkeley’s law school. There again, he displayed modest academic interest, though he also evidenced a solidifying character marked by his sensitivity to challenge. Law school rules of the day prohibited students from working with law firms while full-time students. Warren ignored the rule at considerable peril. Discovery could well have resulted in expulsion. Still, he believed that the value of practical experience outweighed his chances of being caught, and he set his mind to it. He persuaded a local law office to hire him, then sneaked off campus to go to work. He managed to avoid detection or consequence.
Later, as his days in Berkeley were drawing to a close, Warren was warned by a law school dean that he was in danger of failing courses because he spoke up so infrequently in class. Rather than simply start contributing, Warren struck a stand on principle: Where, he demanded, was it written that he was required to volunteer in class? The dean, apparently taken aback, conceded that there was no such written rule, but warned Warren that if he failed any of his exams, he would not receive a degree. Warren passed.23
Once Warren’s career took him to the pinnacle of the legal profession, his modest accomplishments as a law student would become a source of amusement to himself and to friends. When Jim Gaither, one of the many gifted students who clerked for Warren during his chief justiceship, was first interviewed for the job, he talked about the law and his shiny academic accomplishments—Gaither was a Princeton undergraduate and an outstanding law student at Stanford. Gaither was invited back a second time, and he studied rigorously for the interview, reading cases, examining the jurisprudence of the Warren Court. He showed up for the session with Warren’s two-man interviewing team, and instead of grilling him about the law, the interviewers asked Gaither questions about baseball and football. “Three hours,” he recalls, “not one question of substance.” Once Gaither got the job, he asked what that had all been about. “We wanted you the first time,” one of his interviewers replied. “But we thought you were so serious you would drive the Chief crazy.”24
Warren may have taken law school lightly, but he put in enough work to graduate. A thesis was required, so he wrote one. Titled “The Personal Liability of Corporation Directors in the State of California,” it was just thirty-one pages long and a work of neither great originality nor great scholarship. It was serviceable, however, and on May 6, 1914, it was approved by the dean—the same dean who had warned Warren about his failure to speak up more often in class.25 Warren graduated with his class that month. The entire group of students was admitted to the practice of law without the need of a bar exam.
Warren now was a lawyer but one in search of work. He first accepted a job with the Associated Oil Company in San Francisco. It was not a happy experience. The company’s chief counsel, Edmund Tauske, was brusque and unappreciative. Warren had worked to become a lawyer, and now that he was one, Tauske used him to fetch cigars. Warren described Tauske as “an irascible old man,” and determined to quit. When the time came, Warren took great delight in telling his boss of his discontent:
I told him . . . I was not happy there; that there was no human dignity recognized in the office, and that I wanted to make another start in more congenial surroundings. He seemed hurt by my frank statement, and said, “I have had probably fifty young men work for me, and none of them ever expressed such dissatisfaction.” I was bold enough to tell him that if he had treated them differently perhaps he would have needed only one instead of the fifty.26
Warren stayed long enough to find a replacement for himself, and as he considered his own options, he debated leaving the law altogether. A respectful audience with the chief justice of the state Supreme Court turned him back around. Warren arrived one day to pick up an order, and the chief justice invited him to sit down and talk. Warren was flattered by the justice’s interest in him, and it revived his enthusiasm for the law. He relocated to Oakland, joined the law firm of Robinson and Robinson, and took an active role in starting up a young lawyers’ association—one of many such instances in which Warren found satisfaction in organizing professional or social clubs. The time passed quickly, and in 1917 Warren and two classmates were preparing to form their own firm, only to be interrupted by the Great War.
Warren wanted badly to fight. He tried several times to enlist, but he was turned away first in the flood of applicants, then because of hemorrhoids and a case of ether pneumonia contracted while having his hemorrhoids operated on. Once finally cleared for enlistment, he entered the service on September 7, 1917, and was promoted to sergeant less than two months later.27 He was sent first to Camp Lewis, Washington, and later Camp Lee, Virginia.
Warren was a good soldier and a capable supervisor. He was fair and patient, and his men regarded him as a good listener.28 At Camp Lewis, he met Leo Carrillo. They struck up a friendship, and Carrillo described Sergeant Warren as a “big man mentally and physically, a great hulking, strong, sturdy soldier without any pettiness.” 29 Accepted into the officer program, Warren received his commission as a second lieutenant on June 1, 1918, and was shipped to Camp Lee, where he was assigned to the bayonet program. His rigorous preparation at Camp Lewis was welcome—Warren was one of only two students to survive the bayonet training without needing a stay in the hospital.30
Although Warren rarely had time to leave the bases to which he was assigned, he did manage, while in the service, to maintain a playful romance with a California girl living in New York—the first recorded romantic relationship of Warren’s life. Earl had met Ina Perham back in California; she was a student at Oakland’s Academy of Fine Arts while Earl was attending nearby Berkeley. Ina was a smart and adventurous young artist, as vivacious as he was staid. She seemed to bring out the mischief in Warren.
“I do wish I could get away from this camp for a few days,” Warren wrote Ina from Camp Lee. “And by the way, don’t you dare to leave N.Y. before I get up there to see you. . . . The first chance I get I am coming to N.Y. and you must be there to celebrate with me.”
In his letter, Warren allowed himself to complain, something he rarely would do as he became a more public figure. Writing to Ina without such inhibitions, he grumbled about not liking the people of Virginia and about his confinement to the camp: “Just think, I have been here nearly five months, and have only slept outside of camp two nights in all that time.” He worried the war would end before he could fight, and envied another young man who had recently shipped out. “If he ever gets a chance to cut loose at the Huns with machine guns, he can be positive that he has ‘done his bit,’” Warren wrote, adding that he hoped his own bayonet work, once employed in battle, “would kill enough Germans to keep the rest of their army busy.” More personally, Warren encouraged Ina to fend off the advances of an older man, and he attempted humor along with charm. But Warren’s naïveté is the letter’s dominant undercurrent. He tried, for instance, lamely to joke about Ina’s recent weight gains: “So you have gained nine pounds on your trip,” he wrote. “Just you look out or you will be in the heavyweight class, and that isn’t the style now, is it?”
Closing his note, Warren added, “Well, ‘Fatty,’ I guess I will say ‘olive oil.’”31
Warren did not make it to New York for his hoped-for celebration with Ina Perham and the romance fizzled out, though they maintained a formal friendship through the years. Promoted to first lieutenant on November 4, 1918, he was transferred just a few weeks later to Camp MacArthur in Waco, Texas. And then, quickly, the war ended. Warren was discharged from the Army on December 9, 1918, and returned home to Bakersfield for Christmas. He arrived in uniform and continued to wear it during his job search. Partly the reason was financial: Warren left the service with only $60 in muster pay, and spent much of that on Christmas presents for his family.32 His old suits no longer fit the more muscular veteran, so he did not have much to wear. That said, it did not hurt in 1919 to be identifiable as a veteran while looking for a job.
After a month in Bakersfield, Warren picked up his life again. His old partners had moved on, so he dropped thoughts of starting up the law firm. And he certainly had no interest in staying in Bakersfield, which he already had left once. His sister provided him with an option. Ethel, who had dropped out of high school before graduating, had by then married Vernon Plank, a Southern Pacific man just like Methias, and the couple had moved north.33 Theirs would prove a sad life—Vernon Plank died one day on the golf course before his fiftieth birthday, and their daughter, Dorothy, would die of tuberculosis after a long and unsuccessful attempt at recovery in a sanatorium. But now they offered Earl a base in Northern California, and Earl was by then far more a man of Berkeley than of Bakersfield. He accepted, and headed back to Oakland, by the Bay where he had spent his college years.
Warren stayed for a time with Ethel and Vernon before a chance encounter with old classmates sent him to Sacramento. Leon Gray, a former colleague from Robinson and Robinson, had just been elected to the state legislature from Oakland, and he offered Warren a job as a legislative analyst, a post that paid $5 a day. Warren agreed, but hoped he could find something to supplement that when he got to Sacramento. Soon after arriving, he sought out another classmate, Assemblyman Charlie Kasch. Warren, still in uniform, found Kasch in the legislature and asked him if he would check around for openings. Kasch promised he would. The next morning, Kasch was back at his desk when Warren strode up again, pleased with himself. With the help of still another classmate—Berkeley supplied more than its share of the California state legislature in those years—he had recently landed a job as clerk to the Judiciary Committee, earning $7 a day. “It was a very good [job], even better than he expected,” a friend recalled.34 Warren held the position for the length of that year’s legislative session, commencing a career of public service that stretched across more than fifty years with barely an interruption.
Sacramento, this time, was a brief stop—the session ran from January through the spring—and Warren returned to Oakland. Associates had tried to use leverage to force the Alameda district attorney, Ezra Decoto, to hire Warren, but Warren demurred, uncomfortable with the notion of strong-arming his place onto the prosecutor’s staff. Instead, he made one last attempt at a private career, hanging out a shingle with Leon Gray. But before Warren could land a single client, the Oakland city attorney, H. L. Hagan, offered Warren a job in his office. Warren would have the chance to advise city officials and defend them from legal action, and he would have access to policy decisions and help guide the public interest. Sensing that his meandering search for a career was over, Warren accepted. “[A]t last,” he said, “the heavy gate was opening for me.”35
Chapter 3
PROSECUTOR, FATHER
He was always known to us as “the Chief,” and he still is.
CLARENCE A. SEVERIN1
I’ve always had a father, and I never called him anything but Dad.
JIM WARREN, ADOPTED SON OF EARL WARREN 2
WARREN TURNED DOWN his first chance to become a prosecutor, when he was considered for the job only because his political friends were willing to put pressure on District Attorney Ezra Decoto to hire him. But the alternative, his job in the city attorney’s office, though an entry into public service, was never what Warren had in mind for a career. Ever since Bakersfield, he’d dreamed of the ordered romance of trial lawyering. His chance came in early 1920, when Decoto, impressed by the young man who had refused to apply pressure at his disposal, offered to let Warren try cases on behalf of the People of the State of California for $150 a month. That meant taking a pay cut—the job as city attorney paid $200 a month—and it required moving from the modern offices of the city attorney to the county’s rickety courthouse, where the district attorney’s office was up an old flight of wobbly stairs. None of that mattered to Warren. He was being offered the career he had imagined since he was twelve years old. He accepted, and on May 20, 1920, he became a deputy district attorney for the county of Alameda.3
It was not a placid time to accept responsibility for enforcing the laws of California, particularly not for an idealistic, moderate young man. The state was divided into opposing camps, moving further apart with each passing year. On one side were the state’s business leaders, largely Republican, consolidating their fortunes and trying to build a modern economy; on the other was organized labor, powerful but confused in San Francisco, suppressed in Los Angeles. Neither side had much patience for compromise; both were all too willing to reach for the bludgeon or the dirk.
There was no single event that caused that fissure; indeed, the state’s history seemed to ordain it. But the particular set of calamities that set the temper in 1920 began a decade earlier, with the bombing of the Los Angeles Times by three union activists. They first denied their crime, and labor furiously rose to their support. Then two confessed, humiliating those who had championed them, setting back labor’s campaign in Los Angeles and sealing the paper’s violent antipathy toward labor; even in the 1950s, Norman Chandler, grandson of General Otis, could boast, “I have never bargained with a labor organizer or negotiator in my life.”4 Six years after the Times’s bombing in Los Angeles, another explosion, in San Francisco, scattered more victims across more pavement. This time, a belligerent union tough named Tom Mooney was arrested, along with Warren Billings, another Socialist.
They were prosecuted by San Francisco DA Charles Fickert—the same district attorney who had beaten the Progressive candidate in the election that Warren monitored as a student. On February 9, 1917, the jury in the Mooney case filed back. Its foreman caught the eye of one of the prosecutors and drew a finger across his throat. Mooney was convicted, and on February 24, sentenced to hang. Barely had the case concluded, however, before problems began to appear regarding the witnesses against Mooney and his codefendant. Some admitted to having concocted their accounts, others to embellishment. Strong evidence suggested that Fickert and his staff had offered bribes and doctored physical evidence. One witness, confronted with a contradiction in her testimony that put her in two places nearly a mile apart at the same instant, insisted that her flesh was in one location but that she had witnessed the bombing with her “astral eyes.”5 Eventually, even the trial judge became convinced that the case against Mooney had been unfair.
Mooney went to San Quentin and there became an international labor martyr. From his cell, he demanded his release and rejected attempts to cut a compromise under which he would accept parole.6 Mooney became, as historian Starr notes, both the “most revered martyr of the labor movement” and, after Douglas Fair-banks and Mary Pickford, the “best-known Californian in the world.”7 As the 1920s began, Tom Mooney was alive, angry, and in prison—a spark in California’s superheated politics.
At about the same time, another player added fuel. The International Workers of the World, formed in Chicago in 1905, came to California to organize its poorest workers, including migrants and minorities—groups beyond the interest of most of the state’s labor organizers. The IWW was ramshackle and its aims were at times incoherent, but it was ambitious as well. It embraced revolutionary rhetoric. Its organizing campaigns cut across industries and racial groups—unlike Debs’s American Railway Union, the IWW welcomed black and Asian members. That was enough to enrage California’s elites. The IWW’s loose-knit leaders—the Times was apparently the first to call them “Wobblies”8—were demonized and persecuted. They were subjected to sadistic assaults in Fresno (1910 to 1911), San Diego (1912), and Wheatland (1913), among other places, and vilified in the California legislature, a reliable engine of repression. It was during Warren’s brief service there in 1919 that the legislature passed the Criminal Syndicalism Act, intended specifically to give law enforcement additional power to suppress the IWW. The act prohibited advocacy of “any doctrine or precept advocating, teaching or aiding and abetting the commission of crime, sabotage . . . or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing
a change in industrial ownership or control or effecting any political change.”9 By allowing prosecutions for advocacy, rather than action, the Criminal Syndicalism Act vastly broadened the scope of illegal activity related to union organizing, at least as practiced by the IWW. Within months, scores of IWW members across the state were under arrest, charged with violating the act not by committing violence but for giving speeches or otherwise expressing the belief that force was justified in changing “industrial ownership or control.”
Under those circumstances, moderation was a hard value to practice, especially for a young lawyer in his first courtroom job. Earl Warren was assigned his first case less than a month after he joined the office, and he was paired with a senior prosecutor, A. A. Rogers. Warren’s assignment was to secure a conviction of John Taylor, a union leader and onetime Socialist candidate for mayor of Oakland whose affiliation with the Communist Labor Party brought him afoul of California’s Criminal Syndicalism law. With less than a month on the job, Warren entered California’s fast currents of labor, violence, and repression.
Taylor’s offense was not that he had committed acts of violence but rather that he believed in the principles of the Communist Labor Party and that he had admitted to once being a member of the IWW. Taylor represented himself at trial. He maintained that his beliefs might be radical but they were not violent, and he contended that police and police informers tilted their testimony against him and paid money to secure damning evidence. Warren rose on June 16, 1920, to deliver the prosecution’s response to those charges in the form of a closing argument. He accused Taylor of slander and demeaned Taylor’s attempts to introduce nonviolent socialist teachings into the case. Those writings were irrelevant, Warren told jurors, because Taylor had stayed with the Communist Labor Party when that party broke from the less violent socialists.10 Warren condemned Taylor’s attacks on prosecution witnesses, though in fact the prosecution had relied on a number of shady informers to make its case that the IWW was a violent organization. Labor fiercely resented those informers, describing one as a “self-confessed burglar convict, a stick-up man and trench dodger,” and another as “a twelve-time deserter from military and naval service . . . identified by hospital officials as evilly diseased and paretic.”11 Later, Warren too would express reservations about the witnesses used in that and other syndicalism cases. In his memoirs, Warren described the witnesses as “repulsive” and confessed to having felt “squeamish about them.”12 The jury in Taylor’s trial did not hear any of that, at least from the prosecution. Instead, Warren reminded jurors of the law and accused Taylor first of breaking it, then of lying to save himself from the consequences.
