Justice for All (44 page)

The 1948 presidential campaign marked the first time that voters anywhere had said no to Earl Warren. And yet, even in defeat, this campaign—like the one for attorney general in 1938, when Warren focused on civil rights, and like the gubernatorial election in 1942, when Warren expanded into issues beyond public safety—marked an important stage in his personal political development. As with 1938, the occasion was a request for him to define himself, then in terms of civil rights, this time in the form of a query from the
New York Times,
which asked him to define “liberalism” and to describe what it meant to him as a philosophy. On his own, Warren was not inclined to philosophize, but when asked in 1938 to do so on civil liberties, he formed his ideas around his response. Now he did so again. Warren's reply to the
New York Times
linked his politics and those of Hiram Johnson but did so in a way that made clear that Warren was not bound by the old-style definition of a Progressive. He had grown beyond Progressivism's proscriptive notions—the elimination of vice and corruption—and turned it into a more affirmative and constructive philosophy. With his response, Warren also served notice that those inclined to see him as simple and hardworking but unimaginative had not looked hard enough. His approach to governing, developed in five years as governor, had in fact hardened into a philosophy, reflective and practical, deliberately moderate but ambitious, too. For the rest of his life, whether as governor or as chief justice, Warren would never substantially depart from its basic principles. Warren's answer, quoted here at length:

Chapter 13

LOYALTY

GOVERNOR EARL WARREN
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NINETEEN FORTY-NINE opened with the specter of international Communism gathering around the world. Much of the Western world felt threatened and afraid, and their preoccupations turned to the question of loyalty. In California, much of the state's conservative press and leadership decided that Communists were a danger not just in Peking and Moscow and their orbits of satellites, but at home, in state offices, and in schools. And in order to identify those who posed a danger to the government, the defenders of the Republic settled on an approach: they determined to ferret out Communists by administering an oath. The oath would demand rejection of Communism. Those who refused to take it presumably would be Communists, who could then be fired or prosecuted or otherwise harassed.

At first, there was little to suggest that loyalty—and the oaths meant to validate it—would upend institutions. The anti-Communist leadership in California was personified by state senator Jack Tenney, whose oafish obsession with the subject made him an object of something close to ridicule in Sacramento. He boasted of having gotten his start playing piano in a Mexican whorehouse—perfect training, the joke went, for a life in politics. Tenney's fame and fortune derived from a song: He was the author of the maudlin little border waltz “Mexicali Rose” (“Dry those big brown eyes and smile, dear . . .”), and with its royalties Tenney sought a place for himself in the ferment of 1930s Los Angeles politics. In 1936, he won his first campaign for the Assembly, debuting as a leftist admirer of Upton Sinclair's and a protégé of California's premier lobbyist, liquor industry representative Artie Samish. Tenney served for a time as the leader of the local musicians' union, but after he lost that post, he pivoted to his right. As Samish recalled in his colorful memoir, “He saw reds under every bed. As a chaser of Communists, he made Martin Dies and Joe McCarthy seem like pinkos.”
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And yet while Tenney might have been humorous, even absurd, he also was an elected official. He could reach into California's budget, and he had a grasp of its legislative machinery. Tenney could be laughed at, but he could not be ignored. When, in early 1949, he began his familiar rumble with a host of bills intended to cleanse California of its menace, others took note.

Tenney thought he spied subversion in the university ranks, and he meant to take care of it. One of his bills proposed stripping the University of California regents—a panel of appointees named by the governor and confirmed by the legislature—of the power to determine the loyalty of university employees. Under that bill, vouching for the loyalty of university staff—faculty as well as nonfaculty employees—would move instead to the legislature itself, where Tenney and his allies were poised to wreak mischief. The bill was intended as a deliberate affront to the university's ability to manage its own affairs.

Sproul, president of the University of California system, eyed the clouds forming with concern but not panic. Clever as well as smart, Sproul had begun his time at Berkeley as a student and then, after a brief period away, had commenced his rise through its administrative ranks. He understood its finances, and he knew politics. He was strongly supported by its faculty—notwithstanding that he himself did not have a doctorate—and he was devoted to the university's health and prosperity.

What's more, Sproul had in Warren an extremely well-connected friend. The two men had been students together at Berkeley, Warren a year ahead of Sproul. Like Sproul, Warren loved his alma mater, and he respected few men so much as the university's president, a campmate in the redwood glens of the Bohemian Grove. Sproul and Warren were frequent, cordial correspondents, and often guests in each other's homes. Earl Warren could be counted on to stand up for Bob Sproul just as Sproul had done with his nominating speech for Warren at the Republican National Convention in 1948.
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If Sproul had experience and relationships on his side, however, Tenney seemed to have timing on his. In those early months of 1949, Communism as a global force was terribly real and genuinely threatening to American interests. From behind the Iron Curtain across Eastern Europe, Stalin consolidated his dominion through the late 1940s. Communist parties waged disruptive uprisings in Greece and Turkey in 1947, rattling the Truman administration. By 1948, Stalin was sufficiently confident to cut off Berlin, and to blockade that stranded city behind his forces. Truman countered in June 1948 with Operation Vittles, an airlift of supplies to the residents of West Berlin otherwise trapped inside East Germany. Peace in that theater hung on the discipline of young troops, eyeing one another as they patrolled a narrow boundary, always a single mistake away from war.

As the superpowers waged that knife-edge conflict, the hunt for domestic Communists gathered intensity as well. On December 15, 1948, Alger Hiss, a once promising diplomat and statesman, was indicted for perjury, accused of lying about his relationship with Whitaker Chambers. Hiss was the quarry; his pursuer was a young congressman whom Warren knew well: Richard Nixon.

A month later, Communists came to power in China, and Mao would soon travel to Moscow to meet Stalin for the first time. By the end of 1949, the Soviets had exploded an atomic bomb. Aided by the espionage that helped secure the bomb and now bolstered by its power, Communist rule extended from the Elbe River to the Formosa Straits.
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And the maw was not satisfied. Stalin pined for Western Europe. Mao eyed Korea and Southeast Asia. Communism was formidable and growing, well armed and disciplined; its agents had insinuated themselves into positions of influence in America. Next to it, democracy seemed frail, and not just to alarmists.

In that context, the hunt for Communists at home and the use of loyalty oaths to find them seemed alternately vital and absurd. With armies in the field, spies at work, scientists pioneering new weapons, and diplomats struggling for strategic advantage, American security hardly seemed to turn on the question of whether a university admissions officer or PE teacher was willing to pledge loyalty to the United States. On the other hand, with such stakes rising monthly, almost no measure seemed too much if it might protect a nation that understandably saw itself in danger.

Sproul took heed of those sentiments and struck what he believed would be a defensible middle course. Urged on by university vice president James Corley, who was concerned about Tenney's potential for punishing the university by pinching its budget, Sproul proposed what he believed would be a harmless addition to the oath already required of state workers, including university employees.
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Rather than simply swear to uphold and defend the Constitution, as all government officers were required to pledge, Sproul suggested adding an explicit rejection of Communism. In order to remain employees of the university, all workers—professors, administrators, and others—would have to pledge the following: “I do solemnly swear or affirm that I do not believe in, and I am not a member of, nor do I support any party or organization that believes in, advocates, or teaches the overthrow of the United States Government, by force or by any illegal or unconstitutional methods.”
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Earl Warren was not present when the regents considered that proposal. Although California's governor sits as an ex officio member of the board of regents, neither Warren nor his predecessors or successors made a regular practice of attending. So Warren was not there when, after a brief discussion about the precise language, the regents adopted the oath, amending the state oath that had already existed since 1942, by a unanimous vote. Sproul promised the regents that the new oath would be included in the annual contract given to university employees.
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Sproul believed university employees would readily accept the additional language containing the specific rejection of Communism. Instead, as faculty members learned of the oath with the school year drawing to a close—the first official notice of it came in the May 9 issue of the
Faculty Bulletin
—they were suspicious.
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To many faculty members, the requirement that they take an oath or lose their right to teach represented an attack on intellectual freedom and a challenge to the principle of tenure—the idea that professors, once tenured, could be removed only under extraordinary circumstances. Moreover, the decision to impose a special oath on university employees implied suspicion of them—no other state workers were being asked to swear their abhorrence of Communism—and while many professors were willing to disavow Communism, they resented being singled out to do so.

Through 1949, the controversy surrounding the oath grew and shifted. Although Sproul had been the first to propose the oath, he represented the faculty, and his position became increasingly tenuous in the face of faculty resistance. He began to search for a way out. As he shifted his position, however, regent John Francis Neylan moved to counter him. Born in 1885, Neylan was a Progressive of the old school, a Hiram Johnson backer who had drifted into isolationism along with Johnson and Neylan's boss, William Randolph Hearst, whom Neylan had served as lawyer and San Francisco representative for years. Warren and Neylan had first met in Warren's young days as Alameda DA, when the newly appointed county prosecutor sought relief from punishing press coverage of his handling of the murder of Bessie Ferguson. Neylan's intervention at that delicate, early stage of Warren's career had helped the naïve young prosecutor sidestep a mine.
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In the years since, Warren and Neylan had been polite but restrained correspondents, with Neylan presuming a more confidential and personal tone than was reciprocated by Warren. Typical was one exchange in 1943: Neylan sent along a book by a Harvard philosophy professor, suggesting that “when you find yourself driven half-crazy by the job seekers and those with crackpot schemes to relieve the treasury of the surplus on hand, you take ten minutes to read it aloud to Mrs. Warren.” Warren did not respond. Instead, press secretary Verne Scoggins delivered Warren's “acknowledgment and thanks.”
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Neylan was first appointed a regent in 1928 (regents served for sixteen-year terms) and was reappointed to the board by Warren in 1944. Boastful and intimidating, Neylan was a force eager to unleash his powerful intellect on an adversary. When Sproul first proposed the oath, Neylan opposed what he considered a pointless requirement. Now, however, as Sproul moved to withdraw in the face of an angry faculty, Neylan switched his position, too, and decided to defend not so much the oath as the regents' right to impose it. He would not back down, because Jack Neylan did not back down. The regents ran the university and had the power to require an oath, and even if Neylan was never much impressed with the oath itself, he was devoted to making the faculty bow to the regents.