Justice for All (58 page)

Hoover had been doing favors for Warren for more than a decade, and the FBI background check reflected Hoover's protectiveness of his charge. It amounted to little more than a collection of testimonials to Warren's abilities and character. It cited two picayune associations between Warren and Communism—a written greeting that Warren had sent to a pageant commemorating the third anniversary of Russia's war against Nazi Germany (America's war, too, after all), and his attendance at a 1945 banquet in San Francisco hosted by the American-Russian Institute, later identified as a Communist front organization by the attorney general.
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There were a few Warren critics quoted, though even some of those said they supported the nomination. The bulk of the report was devoted to synopses of interviews with Warren backers, who praised him lavishly, describing him as of “good moral character,” as the “best-informed man in the three branches of government,” “superb,” “completely devoid of bias,” and “one hundred percent in every respect.”
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The report was transmitted to the Justice Department and shared with Langer on February 16. That same day, an FBI agent assigned to the Judiciary Committee proceedings made one last attempt to convince Langer to share with him the accusations that had been filed with the committee. Langer had been dodging the Bureau for days, publicly insisting that the accusations merited review but refusing to let them be reviewed, at least by the FBI. Now, on February 16, Langer admitted he had nothing. “Langer stated he had gone over the complaints and that he had concluded that they were of no value and, therefore, he would not turn them over for investigation.”
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That, then, seemed likely to end the matter. Langer admitted he had nothing incriminating on Warren, and the FBI turned up nothing, either. But three days later—three days
after
acknowledging that his files contained nothing damaging against Warren—Langer called his colleagues into session. As the hearing opened, Langer directed the counsel to read the charges against Warren (they had been edited yet again, and as presented no longer included the allegations regarding drunkenness; the balance of the allegations were included). Warren was accused of permitting organized crime in California, of collaborating with Artie Samish (that was news to Samish), of favoring the “Marxist line,” of running an escrow racket, and of mishandling government funds, among other things. Langer knew those charges were baseless—he had admitted it to the FBI three days earlier. But the public did not know that, would not know it for more than fifty years. William Knowland, Warren's old friend and then the majority leader of the Senate, was in the audience when Langer had the charges read in an open hearing room, with press and public present. “I would not submit a town marshal to this type of anonymous charge,” Knowland complained.
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After the session, he added, “The procedure followed today in the case of Chief Justice Warren is the most shocking event I have observed in my eight years in the Senate.”
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Another Californian, Vice President Richard Nixon, echoed Knowland's anger and pivoted in Nixonian fashion. “Rather than wasting its time investigating the charges [against Warren],” Nixon suggested that it “could well spend some time investigating those who made them.”
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Eisenhower, vacationing in Palm Springs, released a statement standing by Warren, whom he described as “one of the finest public servants this country has produced.”
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Across the country, editorial boards rose up with unusual unanimity. Outrage poured from the
Memphis Press-Scimitar
and the
Oregon Journal
, the
Long Beach Press-Telegram
and the
Tampa Sunday Tribune
, the
New York Times
and the
Santa Monica Evening Outlook
. The
Outlook
's editorial nicely captured the national revulsion: “The North Dakota Senator, who had some reputation as a screwball before, has now climbed far out on the special limb hitherto occupied by the nastiest little viper in the Senate and has told Senator Wayne Morse to move over.”
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Curiously, Langer's attention to the seedy charges against Warren distracted from three areas where Warren's record might have provided legitimate grist for senators considering his worthiness for the Court. One letter writer had argued that Warren's support for the internment of the Japanese should count against his ascending to a tribunal charged with the protection of civil liberties, a worthwhile point but one that Langer chose to ignore altogether.
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Several others questioned Warren's actions during the loyalty oath debate in California. There, the risk to Warren was less substantive but more political: Eisenhower and Warren had different views on the value of oaths, so Warren's contrary position in the California debate could have surfaced a policy difference between the president and his nominee. Again, Langer's attention was focused elsewhere.
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Finally, a third and potentially fruitful avenue for inquiry was Warren's continued membership in the Native Sons of the Golden West. Nearly seventeen years earlier, Hugo Black's ascension to the Court had been disturbed by the revelations of his past Ku Klux Klan membership. The Native Sons were not the Klan, but they too had espoused an openly racist agenda, in their case with respect to California land ownership. And whereas Black had resigned his membership in the Klan, Warren remained a dues-paying Native Son. But Langer was more offended by internationalism than racism. There is no evidence that he ever considered probing Warren's relationship to the Native Sons.

Langer's actions could have been explained by eccentricity or bad judgment were it not for two facts that he deliberately concealed from the committee and the public. Langer knew when he aired the charges against Warren that they were without merit. That was proof of bad faith. Even more telling was a subtler act of deceit. Through both the public and closed sessions of the committee, Langer presented himself as a disinterested fact finder. He professed to be surprised, even offended, by the allegations but duty-bound to investigate them. But Langer was hiding the truth. After the blowup on February 20, Langer's subcommittee met in secret to evaluate the allegations against Warren that Langer had made public the day before. There Olney, now in his role as associate attorney general, presented the committee with the Justice Department's research on the chief accusers, Wilson and McCloskey. As Olney laid out the facts of McCloskey's history, Langer sat quietly, interjecting a question or two but volunteering nothing.

What Langer did not say was that he had known McCloskey at least since 1938—perhaps earlier—that he had given him advice throughout his career, that McCloskey considered the senator his political idol, and that the two had been working together on a variety of fronts in the months leading up to the Warren hearings. Nearly a year earlier, McCloskey, addressing the senator as “Dear Bill,” urged Langer to weigh in on a raging farm battle outside Detroit. The letter was friendly and familiar, closing with “I thank you from the bottom of my heart for all past favors, and remain, Very sincerely yours.”
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Responding, Langer addressed “Dear Burr” and promised that he would make a staff member from the Judiciary Committee available to meet with McCloskey and review the dispute.
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Their correspondence continued through 1953 and early 1954, as the Warren nomination came before Langer's committee. In November, writing on the letterhead of the American Rally, McCloskey updated Langer on the farm situation, invited him to address two of the organization's state conventions, and for the first time raised the idea of contesting Warren's appointment (Warren had taken his seat the previous month). In that note, McCloskey detailed for Langer the American Rally's efforts to place a candidate on the California ballot in the 1952 elections. “In this struggle, I became well acquainted with the corruption of both machines and the culpable relationship of then-Governor Earl Warren,” McCloskey wrote. “I understand that your Senate Committee will shortly conduct hearings on the fitness of this Earl Warren to be approved as Chief Justice of the U.S. Supreme Court. I am here petitioning you for time as a witness before your Committee in order to protest the Warren appointment.”
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And yet when McCloskey and American Rally were attacked by the Justice Department representatives in the closed session of the Judiciary Committee, Langer feigned ignorance. “What is the American Rally?” he asked.
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Langer denied knowledge for a reason. The transcripts do not supply it because no one in the room during those hearings knew enough to challenge Langer. But context provides what the text cannot. Ignorance of McCloskey suited Langer's purposes. He did not want to appear vindictive toward the chief justice, whose confirmation he knew to be likely. All Langer wanted was to smear Warren, to discredit him and the Eisenhower administration. To denigrate Warren without openly opposing him, it benefited Langer to strike a pose of neutrality and to have McCloskey bear the burden of leveling the specific charges. Langer even went further than that, unctuously proclaiming during a closed session of the committee that he, in fact, supported Warren—“He is one of the best friends I have,” the senator said, undoubtedly to the disbelief of his colleagues.
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It was a smear, not the first and certainly not the last leveled against a judicial nominee, but distinct in its mendacity and deviousness.
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Warren himself gave the hearings a wide berth, no doubt concluding that his presence would only lend dignity to a proceeding that was collapsing of its own weight. He declined, for instance, an invitation to appear before the committee and defend himself. That is not to say, however, that he was not aware of or troubled by the attacks on him. Olney remembered Warren being “irked” by the proceedings, by the parade of false charges and dubious witnesses and by the committee's retreat into closed sessions, where Warren was left to imagine what they were hearing.
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Even after the tumultuous public meeting of February 19 and the contentious private session on February 20, Langer was not quite willing to let Warren go. The following week, he convened the committee, again in secret, to hear from Roderick J. Wilson, the California representative of the American Rally whose allegations McCloskey had forwarded with Langer's encouragement. Wilson was a private investigator of dubious credentials, wanted for perjury and apparently lying low to avoid a warrant for his arrest. More alarming to the committee, he was a rambling, incoherent witness. His allegations against Warren turned out to be drawn mostly from his reading. His charge that Warren had abetted organized crime, for instance, was based on the findings of the California Crime Commission. That commission was created by Warren and chaired by Olney, who not only could refute the charges but also happened to be in the room as Wilson testified and interjected to correct the witness. Wilson then turned to question Olney, infuriating the dignified Olney and his colleague, Deputy Attorney General Rogers. “I do not think we should submit to cross-examination by this witness,” Rogers finally said, interrupting, his patience at an end. “I resent it very much.”
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Bad enough for senators to have been dragged through Langer's hoax; now they were party to a circus, and they were done. Senator Arthur Watkins of Utah dismissed Wilson's testimony as “fourth-rate hearsay,” and another member then called the question, moving that the committee favorably report Warren's nomination to the Senate. The vote was 12-3, with Senators James Eastland and Olin Johnston voting against the nomination on substance—both Southern Senators were concerned about Warren's views on civil rights—and Senator Harley Kilgore bizarrely joining them to send a message to the newspaper editors and columnists who had expressed dismay over the committee's handling of the appointment. If Walter Lippmann would agree to apologize, Kilgore said, he would vote for Warren.
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Exasperated, his colleagues recorded the final vote. The event's laughable coda: Langer voted in Warren's favor.

Even with the recently released materials and the light they shed on the story of Warren's nomination, they leave one question pregnantly unresolved. Why? Why would Langer go to such lengths to denigrate a sitting chief justice named by a popular president of his own party, especially when he had to know there was almost no chance that he would succeed? Part of the answer to that question rests with Langer himself, whose perverse sense of political theater was gratified by the Warren fight. Reston was the first to uncover Langer's old pledges to block any non-North Dakotans from office, and that observation, widely repeated in subsequent coverage, provided the most complete rationale in its day. And as discussed, Langer had plenty of reason not to like Warren: The Californian was too moderate, too internationalist, and too accommodating on civil rights, among other things, for Wild Bill's taste.

By themselves, however, none of those facts seems enough to warrant the scathing and unfounded public attack that Langer encouraged. A more specific possibility is suggested by a single document in the confirmation files and by later events that reunited Langer and McCloskey. As Langer listened to Wilson's pained testimony, with its loopy conspiracy theories and unconnected dots, the senator doodled on a pad. He made line drawings of masks and swirly figures, some resembling the letter S or an infinity sign. Several times, he sketched the number 5. And then, near the bottom of the page, he wrote “1955” and underlined it elaborately. Just above it, in bold writing, obviously traced again and again, was another number: “ '56.”
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