Justice for All (29 page)

“Yes,” Warren answered, “that is true. I never apologize for a past act. Besides, that is just a matter of history now.”
⁸¹

And with that, Earl Warren tucked in his chin, set his jaw, and pressed forward through the line. He never looked up, never took the bait, never apologized to those who could not reconcile the great civil libertarian with the man who had interned their parents and grandparents, without a charge having ever been filed or a suspicion ever verified.
⁸²

The closest that Warren would come in his lifetime to saying he was sorry for his role in the internment came in the form of a letter endorsing the Japanese American Citizens League's long quest for repeal of Title II of 1950 Internal Security Act. That title gave the government authority to open detention camps during a national emergency, and the JACL had begged Warren, then retired, to join them in seeking its repeal. Receiving no reply from him directly, members of the organization lobbied through his son, Earl Jr., then serving on the bench in Sacramento. Warren's response finally came, in the form of a letter written to Jerry Enomoto of the JACL. In it, Warren supported repeal of the law, which he described as “not in the American tradition.” And in a wistful allusion to his own role in just such a violation of the “American tradition,” Warren added, “I express these views as the experience of one who as a state officer became involved in the harsh removal of the Japanese from the Pacific Coast in World War II, almost 30 years ago.”
⁸³

With that, Uno and his colleagues accepted the closest thing to an apology they would ever receive from the chief justice during his life. Only in his memoirs, published after his death, did Warren finally and publicly acknowledge how wrong he had been, and even then he fought a rearguard action to circumscribe his responsibility for it. Warren noted the atmosphere in California and the strong support for removal, and emphasized that his position had been “not to intern in concentration camps
all
Japanese, but to require them to move from what was designated as the theater of operations, extending seven hundred and fifty miles inland from the Pacific Ocean [emphasis in original].”
⁸⁴
Warren must have recognized the limited usefulness of that hedge, for he hastened to add, “Of course, for most of them it was the same as directing their confinement.” Having lamely attempted to limit his responsibility to his testimony and to confine his testimony to removal, Warren then finally admitted error:

 

That apology was long overdue, and it was given only after excruciating effort. Indeed, some of the apology may not even have been Warren's at all.

In the draft of his memoirs, which Warren felt were sufficiently complete to send to close associates for their review, he did allow that he “regretted” the order, but it was only in his edited reflections, released after his death, that his apology had been scaled up to say that he “deeply regretted” it. Indeed, an advance copy of the text, leaked to the
Washington Post
after Warren died, included this sentence as it appears in Warren's manuscript: “I have since regretted the internment....” Warren's regret somehow deepened only after he had died.

For some of those who had lost homes and property, Warren's expression of regret was welcome, although many resented having had to work for it for so long and to have heard it only after he died. And yet for some who had stood with him, it was unnecessary, even objectionable. Warren Olney was Warren's great ally in that and so many other fights, but he took rare issue with Warren over the apology. Reflecting on the events that led to the internment, Olney correctly noted that Warren was disingenuous to blame the internment on “hysteria” when no such clamor had existed until politicians, including Warren, created it. Olney also emphasized the threat of invasion in those months and concluded of the internment, “It was believed to be necessary in order to meet an immediate and major danger to the safety of the country. I was convinced then and am convinced now that it was motivated by nothing else.”
⁸⁶

For Warren, the decision to push for exclusion represented a concession to fear, along with a more admirable devotion to security. In one sense, in fact, it reflected his exaggerated and in this case misguided sense of service. Warren was committed to the public interest, and he defined that interest as the general security of California, not the particular protection of its Japanese residents. It is notable, for instance, that in his eventual apology, he took care to remark that he had “always believed” that he was not motivated by racism, leaving open the possibility that he was so motivated but was unaware of it. He advocated internment not to punish the Japanese but to protect the rest of California. Warren was not, then or ever, a racist in the most venal sense of that word. But he embodied the racial callousness of his times. In the debate over the internment, that hardness tragically shielded him from the implications of the policy decision he worked to achieve.

Warren's position on the internment also reflected the peril of allowing his political philosophy to be grounded foremost in associations. As 1942 began, Warren was a member of the Native Sons. His supporters included the American Legion and Associated Farmers, Joseph Knowland and the
Los Angeles Times
. He had tempered those relations, always emerging at the moderate edge of his conservative base. His inclination to seek the center had helped him, keeping him at arm's length from California's reactionaries, even as he managed to take their votes. In 1942, however, those cultural and political leaders lurched to the right. Warren's sponsors and friends abandoned all devotion to the constitutional rights of thousands of their fellow citizens. And when they plunged over that cliff, Warren, whose political philosophy was insufficiently developed to give him a strong personal counterweight, went right with them. “I think he was entrapped to a certain extent by his own political support . . . and a kind of political environment out of which he came in California,” McWilliams said of Warren at that juncture.
⁸⁷

He never did again. After that episode, a larger Warren—bigger in his appreciation of people, deeper in his commitment to social justice—came to dominate his persona. It did not come about all at once; in his first year as governor, he would sound again the alarm about the West Coast Japanese. But the 1942 campaign would expand Warren's vision, just as the attorney generalship had broadened his reach. By the end of that campaign, Warren, though philosophically not a different person, was a man of more solid beliefs, more sensitive to the vulnerabilities of the minority, less subject to the stampede of the majority.

In that sense, the internment can be seen as the culminating mistake of the first act of Warren's life. From 1891 to 1942, Earl Warren grew up in California and learned from it—he absorbed the best and worst of its Progressivism, and he found a sober center when there was one to find. But he was in 1942 still in some ways a backward leader, one who extracted his views from others. The man whom California was about to discover as governor, and whom the nation would soon come to know as a justice, was still stubborn, still principled, still devoted to service. And yet he was bigger, too. The campaign of 1942 and the governorship it brought him would broaden Warren, and the Court would bring him the power to extend his vision to the nation. By 1953, Earl Warren was a more complete man and a more compassionate politician than the attorney general who lost his reason for long enough to incarcerate an innocent people.

If Warren never quite owned up to his responsibility for that calamity, he accepted his role in it and moved forward, as part of his lifelong, sometimes exasperating, determination not to dwell. “Mistakes are not uncommon to human nature,” he wrote many years later on a different subject, though in words resonant with the lessons of his actions in 1942. “[T]he test of character is whether one has done everything in his power to rectify them. If that has been done, and the lesson from it is firmly embedded in one's mind, it should become part of the dead past.”
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PART TWO

IN COMMAND

Chapter 9

VICTORY

EARL WARREN, JANUARY 29, 1943
¹

 

 

 

 

 

 

 

WHEN 1942 BEGAN, Earl Warren was easily misunderstood for a fully realized man and politician. He was half a century old. His oldest son was in business school, his youngest in first grade. He had lost both his father and his mother, one to murder, the other to age and illness. After more than two decades in public life, Warren had important friends. The state's leading newspapers, the Masons, the Bohemian Club, and the leaders of the Republican Party all formed a broad and significant base of influential support. He also was defined to some degree by his opponents: Organized labor still had not forgotten
Point Lobos,
and the liberal intelligentsia would never forgive his treatment of Max Radin. All of that suggested a type recognizable to most Californians: Warren was, by those outward appearances and ties, a Republican in keeping with California's long, dour tradition of that party.

Warren's political views, background, and predilections all seemed to corroborate that stereotype. He believed in restrained government and strong enforcement of the law. He deplored gambling and other vice, and had built a reputation for prosecuting political corruption. The New Deal offended his sense of propriety, never mind EPIC. He liked steaks and chops and nights out with men. He listened to others but guarded his own feelings. He was a veteran. He even looked the part. He was handsome but stern, his strong face framed in horn-rimmed glasses, his eyes usually hard with resolve, occasionally hinting at sadness. In official appearances, he was rarely photographed with a smile.

And yet Warren was not a fully developed man. Even after decades in politics, his horizons were narrow, confined mainly to public safety and law enforcement. He read often but not widely, history but not philosophy, poetry but with a bent toward the accessible, not the reflective. He rarely traveled outside California. He believed in God and saw to it that his children attended the Sunday school of his wife's faith, but he was not strongly religious. He joined clubs and organizations for the camaraderie, but with the exception of the University of California and the Masons, his participation in those groups was more social than heartfelt. He even had a more complex view of the New Deal than he allowed for publicly—its encroachments on states' rights and the right of contract annoyed him, but Warren recognized the need for centralization in the fields he knew best and was open to the importuning of friends more liberal than himself.

What all that meant was that Earl Warren, in early 1942, was a politician in a sense unallied, rooted in his relationships with people and organizations but still unencumbered or clarified by a guiding philosophy. He thought of himself as a Progressive, but that meant less as the Progressives passed from relevance. He had lit upon nonpartisanship as the way to describe his values, but his nonpartisanship was really the expression of opposition to something he abhorred—destructive adherence to a philosophy—not an affirmative statement of what he believed in. Sometimes, in fact, it felt like a bit of a dodge. As attorney general, Warren had touted nonpartisanship, but in a distinctly episodic fashion. He abjured partisanship in California but seemed comfortable with it elsewhere. Warren continued to represent California at Republican national conventions, and he supported the party's nominees in presidential elections. Moreover, much of his tenure as attorney general had been defined by his increasingly testy squabbles with Democratic governor Culbert Olson. It should not have surprised him that many Democrats, including Olson, thought nonpartisanship was a fraud, donned merely to help Warren politically in a state where Democrats outnumbered Republicans.

Beyond his abiding belief that government should solve problems where they arose, Earl Warren, even at the age of fifty, possessed no articulated theory of how government could best help its citizens across the range of human problems. Nineteen forty-two would change that. When it ended, Earl Warren had turned an important page. The war had helped to sharpen and intensify political choices, and Warren had evolved into a new breed of politician by the end of that year. He entered 1942 with friends and principles; he ended it with a philosophy.

Differences on pardons, labor, and civil defense set the tempo of the conflict between Warren and Olson, but it was the outbreak of war that gave their bout significance. Immediately after Pearl Harbor, Olson warned that “this state may at any time become a theater of war” and declared a state of emergency in California.
²
His proclamation was broadcast the following day as an all-points bulletin. It gave the relevant authorities the right to act under that decree. In naming those authorities, however, Olson omitted any mention of Warren, a slight that can only have been intentional in light of Warren's law-enforcement responsibilities and his public statements regarding civil defense. Warren pounced. The governor's authority to declare an emergency, Warren announced, was intended to combat natural disasters—earthquakes, fires, floods, and the like—and did not extend to wartime. In effect, Warren accused Olson of declaring martial law.
³
Olson protested, but Warren's staff scoured the proclamation for flaws, and exhaustively researched the legal history of the emergency powers of the California governor.
⁴
They eventually prevailed. Olson then sulked, refusing to call the legislature back into special session to deal with wartime matters, because he believed Warren and other Republicans would use the session to attack him. The resulting standoff only deepened the sense that Olson was unable to forge alliances in order to steer California in wartime.