Justice for All (23 page)

“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.”
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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.”
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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.
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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.
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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.”
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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.
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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.
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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.
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California 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.”
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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.”
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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.”
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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.

The committee of the state bar that investigated Radin's background took testimony from many people critical of Radin and from Radin himself. The questioning was probing but not vengeful. In his remarks, Radin denied that he was a Communist or that he had ever been affiliated with any Communist group; he acknowledged that he believed one of the
Point Lobos
defendants, Conner, was innocent, but said he had never done anything to publicize that view. The committee did not express a view of Radin's suitability for office. It urged only that the Qualifications Commission closely inspect its investigative file. But then the board overseeing the state bar took the unusual step of voting on a resolution to spell out the criteria it considered relevant for the Qualifications Commission to consider when assessing a judicial nominee. The resolution suggested that no nominee should be confirmed if he had “given just ground to a substantial number of the public for believing that he is either a member of, or in sympathy with, subversive front party organizations” or if he had “given just cause for a substantial number of the public to believe that he is lacking in financial or intellectual integrity.” The board approved those principles by a vote of 10-2, with three members absent, and it stressed that a nominee should be rejected if the public held those opinions, even if the nominee had not done anything to justify those public views.
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Those resolutions were sent to the commission, and now there was accumulating evidence that the nomination was in trouble. And yet as the vote approached, Warren's position still was in doubt. Newspapermen called in futile hopes of drawing Warren into a comment. Instead, Warren met out of public view with Knowland and Jesse Steinhart.
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When the commission convened on July 22, it ended the judicial prospects of Max Radin. “The commission considered all the facts, including a report of the board of governors of the State Bar association and has concluded that the appointment of Max Radin should not be confirmed,” Warren announced for the commission.
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Warren's comments were clipped. He declined to release copies of the evidence considered by the commission, and he would not even tell reporters what the vote had been or how he himself had voted. In fact, the vote had been 2-1 against the nomination. Warren's was the deciding vote.