by Jim Newton
Having operated within sight of police for years, the gambler may have assumed Warren was bluffing when he threatened raids in late July. If so, that was a misreading of the new attorney general, for Warren was not inclined to bluff. Nor, however, was Cornero one to surrender easily. When the attorney general’s navy arrived at the Rex, Cornero’s crew refused to let the Rex be boarded: “Either leave quietly or be thrown overboard,” the boarding party was told as it tried to step aboard the Rex. The officers retreated to their boats, and then the crew of the Rex opened fire on them with hoses.
Rather than try to force their way on board, the raiders, at Warren’s direction, backed off and encircled the ship. “It’s their next move,” Warren announced with studied indifference. “We are satisfied that the Rex is not doing business, and if he and his crew want to remain in seclusion three miles out in the ocean indefinitely, we can wait longer than they can.”35
Warren surmised correctly that Cornero could not hold out long. His ship was full of passengers, many of whom had hoped to duck out for a quick afternoon of gambling and who were expected back at jobs and homes. The longer the standoff went on, the more Cornero’s customers would grow impatient for a resolution. Since they could not take it out on Warren, they would inevitably demand that Cornero surrender. Cornero briefly fought for time, and Warren agreed to remove his increasingly restless passengers, leaving the captain and crew alone on the ship. That ended the gambling, but not the standoff, which dragged on through the week. After five days, during which time Cornero at one point threatened to seek Japanese registry for his ship—a gambit intended to raise the specter of accusing Warren’s agents of attempting to board a foreign vessel—the gambler folded and allowed the raiders on board. He would continue to fight in court until, in November 1939, the California Supreme Court upheld Warren’s view of the headland-to-headland definition of California waters. With that, Cornero realized he was finished, and he accepted a fine as well as the destruction of his gambling equipment, in return for the right to keep the Rex, so long as it left California waters. Warren was deeply satisfied, both by the smooth work of his little navy and by the now-clear waters of San Pedro and Santa Monica Bays. “Our ultimate objective of closing all the gambling ships was achieved, and I must say that, of all the raids on law violators I have known, these, as organized and executed by Warren Olney with the help of my investigators under Oscar Jahnsen, were by far the most intelligently planned and successfully carried out,” Warren wrote thirty years later.36
The standoff with the Rex did more than close down a gambling ship. It established the new power of the attorney general’s office under the amendments voters had approved in 1934. And as proof that good government can be good politics, too, the raids gave stolid Earl Warren a tough-guy glamour. He liked it, and kept at it. In the coming months, investigators from Warren’s office would travel the state and report back on gambling from Orange County to the Oregon border. Olney would review their work and recommend actions to Warren, who would then determine where to concentrate his efforts. Sometimes that merely involved a call to the local sheriff or district attorney; at other times, Warren could be brusque, even threatening. In Riverside County, for instance, the local sheriff resisted Warren’s efforts to shut down gambling in the hotels of Palm Springs. On January 3, 1941, he got an abrupt reminder of his duties from the attorney general:
Reliable information received this office that large-scale public gambling operations carried on on New Year’s Eve . . . that all of these establishments are intending to continue gambling operations tonight and tomorrow night. We understand you were informed by letter from District Attorney Neblett several days in advance that gambling operations in these establishments were contemplated on New Year’s Eve and that no action was taken by your office to prevent same.37
Warren called the sheriff’s attention to his obligations to enforce California laws and then demanded written notice that the gambling had been stopped. There is no record of the sheriff’s reply.
Warren’s campaign against gambling earned him headlines up and down California, and his determined effectiveness contrasted with the flailing efforts of the Olson administration. While Warren was taking gamblers off the high seas, Olson was beset by one petty argument after another with the legislature. The contrasting images—of a professional administrator charged with enforcing the law and a partisan, beleaguered governor arguing politics with other politicians—gave Warren the upper hand in his building feud with Olson, and that advantage became especially significant as the world lurched toward catastrophe.
On September 1, 1939, Hitler invaded Poland. Roosevelt was sleeping when the invasion began but was awakened by a call at three A.M. from William Bullitt, the American ambassador in Paris. “Well, Bill,” the president said. “It has come at last. God help us all.”38
Chapter 7
DUEL FOR POWER
Now deeds like this were many;
Great Warren stood alone.
And soon he sought to tumble
King Cuthbert from his throne.
WILLIAM SWEIGERT (CUTHBERT IS CULBERT OLSON)1
THROUGH THE WINTER of 1939 and the following spring, Earl Warren’s widowed mother, Chrystal, struggled with her health and fortunes. After Methias’s death she had settled his estate. Her health, never strong, continued to fail. One of her few remaining pleasures was shopping with her granddaughter, Virginia, Earl and Nina’s oldest daughter. The two spent many afternoons picking out gloves or other finery in downtown Oakland.2
One Tuesday afternoon in April, Chrystal was heading downtown to meet Nina Warren, where they too planned to spend an afternoon. Chrystal arrived first at the office building where they were to meet, but she then stumbled and collapsed outside a beauty parlor. She was carried inside, while Dr. Hamlin, the family doctor, rushed to the scene. Hamlin sent Chrystal Warren to Providence Hospital, just a few miles away. Earl Warren was at work across the Bay when the phone rang with the news. He rushed to the hospital, where he was met by his sister. Chrystal Warren never regained consciousness, but she died with her children at her side.3 On May 3, her son presided over her funeral at Grant Miller’s chapel in Oakland. Her body was cremated.4
With Chrystal Warren gone, her son was severed from Bakersfield and the childhood he now had left behind. He rarely would speak of it in the years to come. And yet his mother’s gentle passing seems not to have moved him in the same way that the violent circumstances of his father’s murder did. Warren neglected to even mention her death in his memoirs, leaving her to simply drift off the narrative as his life continued. As was so often the case, it was left to others to articulate his loss.
“As you know, the Attorney General and I have been very close personally for so long that there is a personal as well as an official feeling in my mind,” his colleague Everett Mattoon wrote to Helen MacGregor after she told him of the news. “Earl has suffered much from bereavement within the past year or so but enjoys the blessings of a glorious family to be thankful for.”5
Ezra Decoto added, “I know your mother was a fine woman because her children have been fine children, and I know that all through her life you pleased her and that she enjoyed your success in life and was proud of the reputation you built for yourself.”6
Friends paid their respects: Warren Olney, Bill Knowland, John Mullins, Frank Ogden—all sent their sad farewells. Less personal letters poured in from across the nation, tribute to Warren’s rising political position. Prosecutors, police chiefs, Governor Olson, and J. Edgar Hoover (“Dear Earl,” his letter began) were among those to send their condolences. The funeral home received 164 floral arrangements for the service honoring Chrystal Warren, an immigrant widow who lived out her final years in a modest Oakland apartment.7 Then the service was over, the mourners were gone. And Earl Warren was alone.
His mother’s death darkened what was in many ways already a sad, stressful period in Warren’s life, one that he shouldered with heavy grace.
Though he never spoke of it, his parents’ long separation undoubtedly weighed on him, and his father’s murder had unnerved him to the rare point of displaying public emotion. He had pressed on in the face of that murder and through the continuing investigation, but his new job as attorney general was creating additional pressure on him personally. After years being based in Alameda County, Warren, as the attorney general, was now in the first job that forced him to work away from home. And though he was able to spend most days in the San Francisco office, even that distance meant that he often was not home for dinner and that he often slipped out of the house before dawn.
His children saw less of him, missing their Sunday outings with their father, now in demand across the state. At home, he was still the cheerful center of the family, but even there, he showed signs of wear. It was during those years that Warren developed a lifelong habit: He would nod off in any spare moment. Conversation would lull, and his head would droop. For a few minutes, Warren would sleep, then awake and take up the conversation exactly where he had left off. His children learned simply to wait during those catnaps.8
For Warren, whose parents were remote to him but whose wife and children constituted so much of his happiness, the new demands of his work were a burden.
He accepted them as part of the price for a job he loved and responsibilities he enjoyed. He never complained at home. But sparks of his unhappiness flickered, despite himself. Speaking at a memorial service for Justice Louis Brandeis, Warren looked out on the crowd gathered at Oakland’s Temple Sinai and lamented, “I have so little opportunity to see my Oakland friends individually.” That was partly simple politeness, but he added a note of sorrow: “While my home is still only a very short distance from your Temple, I am rarely in Oakland in the daytime. It seems I have become only a night resident of our city.”9
And add to this the mounting stress and fear of war. The years 1939 and 1940 were a tense interregnum period in American life. The war destroyed friends and allies abroad, as Germany thundered through Europe, and Britain begged for American help. FDR strained to check American isolationists, including Charles Lindbergh and his America First organization, while still lending Britain enough assistance to keep it in the fight. Domestically, the threat of war sharpened political choices. Those years were good for leaders, bad for politicians. FDR in 1940 became the first president elected to a third term by voters convinced that it was no time to play politics with government. The world had suddenly become too dangerous to entrust to partisans.
Californians were of the same mind, which colored the gathering conflict between Warren and Olson.
The battle between these two stubborn, determined men had roots in their personalities, their politics, and their backgrounds. Its inevitability was assured by the pressures of war, as was its outcome. Olson had ascended through the left wings of Utah and California politics, while Warren’s route had taken him through the Native Sons, the American Legion, and California’s conservative newspapers. Olson and Warren had different clubs, different friends, different lives. Olson was theoretical and abstract, an atheist raised by Mormons; Warren was simpler and more direct, the son of immigrants, his father a railroad man.
Their fundamental differences were apparent in their choice of friends and advisers. By 1938, Warren’s inner circle included Joe and William Knowland, two stalwart conservatives. But Warren also turned with increasing trust to Jesse Steinhart, a gifted, liberal San Francisco lawyer who came, naturally, from Warren’s left but whose unerring commitment to good government won his affection and admiration. Also there at the smallest Warren table, at the most delicate moments, was Warren Olney III, heir to the long Olney family tradition—a conservative tradition but principally one of service, not of ideological struggle. And in 1940 Warren brought another adviser to his inner circle. Bill Sweigert was a poet and a man of common sense, a Democrat and a Catholic, a supporter of FDR and the New Deal who was loyal to Warren and yet willing to challenge him on areas from states’ rights to the free market. Sweigert thus rounded out an ideologically rich group of intimates— rare is the politician who can draw upon a friend as conservative as Joe Knowland and another as liberal as Bill Sweigert. As a group, they checked one another’s impulses and gave Warren a range of intelligent views.
In contrast, Olson’s advisers, though sometimes brilliant, were narrower. Olson’s son, Richard, was a problematic source, loyal to his father but self-interested as well. Olson’s cabinet comprised Democratic Party loyalists, many chosen to reward them for service, not to provide Olson with advice. Two of Olson’s best appointments were that of his executive secretary, the able and intelligent Stanley Mosk, who went on to a remarkable career as a judge, attorney general, and justice of the California Supreme Court, and his commissioner of immigration and housing, the brilliant Carey McWilliams. Those were smart and capable men, and McWilliams was California’s great social analyst and champion of its farmworkers. Still, even Mosk and McWilliams largely reinforced Olson’s view of Warren—neither was a source of nonpartisan perspective. Indeed, McWilliams was happily a radical, reviled by California’s conservatives. The Associated Farmers considered McWilliams the state’s “number one agricultural pest,” and McWilliams would see their work in the rise of Earl Warren, whom McWilliams derided as “the front-man” for the farmers and their big-business allies.10
Over the course of their concurrent terms, Warren and Olson viewed each other with increasing suspicion. Their personal differences were exaggerated by a combination of personal traits and political styles: Olson was a fiercely partisan Democrat, and Warren was sensitive to slight, so when Olson acted politically, Warren took it personally. When Warren followed his instincts, Olson thought he spied political maneuvers. As they fought, their views of each other became self-fulfilling: Olson saw Warren as a schemer, and Warren at times became one in order to fend Olson off. Warren believed Olson to be a stiff partisan, and Olson retreated to partisanship when he felt Warren was maneuvering against him. Once their conflict began, there would be no ending it until a winner was definitively declared and a loser decisively dismissed.
After canceling his appointments for several days to be with his family after Chrystal Warren’s death, Earl Warren returned to work. Within weeks, that meant fencing again with California’s governor, this time over the state’s Supreme Court. On May 23, 1940, California chief justice William Waste, suffering from age and exhaustion, was confined to bed. By the following week, his doctors had given up all hope. He died on June 7.
Olson indicated that he intended to elevate Associate Justice Philip S. Gibson to the position of chief justice, but the governor deliberated for several weeks on his choice to replace Gibson. As Olson ruminated, word spread that one top contender was Max Radin, a beloved Berkeley law professor who had long been considered a prime contender for a seat on the court should a Democrat ever win the governorship. Radin’s scholarship was extensive—his writings on Roman law were mandatory reading for Berkeley students—and his participation in liberal causes was legendary. It was no surprise, then, that conservatives attempted to knock Radin out early.
Sam Yorty, once a left-wing Los Angeles assemblyman but now an increasingly assertive conservative, accused Radin of impropriety for writing, on University of California stationery, to a Stockton city attorney to suggest that he urge a judge to impose light sentences on eighteen state employees who were held in contempt after they had refused to testify at a Yorty committee investigating the State Relief Administration. Radin suggested a “nominal fine or suspended sentence” for defendants he believed had suffered enough and whose primary offense was youth, not wickedness.11 Local farm and business groups passed resolutions urging Olson not to appoint Radin. There were rumblings, picked up by Warren undoubtedly, that Radin had supported the Point Lobos defendants and that he questioned Warren’s role in prosecuting them. Olson ignored the critics, and on June 26 announced that he was naming Radin to the court.12
C
alifornia law at the time placed confirmation in the hands of a three-member panel, the Judicial Qualifications Commission (also known as the State Qualifications Commission), consisting of the chief justice, the presiding judge of the state’s appellate courts, and the attorney general, Warren. The new chief justice, Gibson, was certain to vote for Radin, while the presiding appellate judge, John T. Nourse, was a conservative and expected to oppose the nomination. That left Warren likely to decide the matter, and Radin supporters initially were optimistic. As a proud alumnus of the Berkeley law school, Warren often touted his admiration for professors there, and in 1935 had described Radin as one of several “friends of many years standing.”13 And while some Republicans, notably Yorty, were opposing the nomination, Warren was, after all, a committed nonpartisan fresh from his prosecution of former governor Merriam’s aide.
On July 2, less than a week after Olson named Radin, Chief Justice Gibson was sufficiently confident of the outcome that he called Warren in the hopes of moving the matter to a speedy, successful conclusion. Warren’s secretary took the call and noted that the chief justice urged Warren to resolve Radin’s nomination “before next Tuesday, as he desires a full court.”14
In light of the partisan opposition to Radin’s appointment, however, Warren concluded that an investigation was warranted. For that task, he turned to the president of the California Bar Association, Gerald Hagar. That should have sent a warning sign to Radin supporters. Hagar was an archconservative, a curious man to tap for the job of investigating a liberal judicial nominee. In a letter to Carey McWilliams, Radin later fumed about the bar president: “Hagar, though professing great personal friendship for me, is to my knowledge a bitter Republican partisan . . . and a confirmed witch-hunter.”15 And yet, with attentions diverted, that telling decision by Warren went largely unnoticed for the time being. As the investigation proceeded, Warren seized upon Radin’s request for leniency in the Yorty case. That, too, should have signaled Warren’s predisposition regarding the Radin appointment. In truth, the request was hardly scandalous. There is no bar on law professors or others expressing opinions about sentencing, and even if Radin had done so on university stationery, it was hardly a serious offense. Warren himself had occasionally urged judges to go easy on a defendant. But Warren was assembling a dossier; the Radin letters went into it.
