The Brethren (5 page)

Many who knew Burger's old foe, Bazelon, suspected that the comment was his. But Bazelon denied having talked to the press. "I was speechless and sick for a week," he said.

Burger stayed home to avoid the reporters who had gathered at the bottom of the driveway of his Arlington, Virginia, home. He requested that the reporters and cameramen be kept off the fifth floor at the Court of Appeals, where his office was, even though he was staying away. Later, he learned that the lobby had been filled with the press despite his request "The only way they could have gotten in is Bazelon," Burger told his staff. "If I can prove it's true, I'll punch him in the nose."

Burger expected that his confirmation hearing before the Senate Judiciary Committee, which had to approve the nomination before it would be passed to the full Senate, might be a bloody battle. He envisioned a whole confederation of liberal interest groups planning to tear into him. "They're out to get me," he told his clerks as he brooded over the prospect The opposition included Bazelon, the other liberals on the U.S. Court of Appeals for the District of Columbia, and some liberal Justices like Brennan. It also included the young coat carriers, who seemed to rotate from a clerkship with Bazelon to a clerkship at the Court, perhaps for Brennan, before taking a job on the Hill, where they were always whispering into the ears of liberals like Senator Edward M. Kennedy at hearings.

Burger was sure that Kennedy would lead the opposition on the Senate Judiciary Committee. As a Republican nominee before a heavily Democratic Senate, he would be hard pressed. Nixon's pronouncements about changing the Court were an open challenge to the liberals.

Burger went to discuss the confirmation process with the chairman of the committee, Senator James O. Eastland of Mississippi. The aging conservative was a sure supporter. Eastland recommended that Burger use Eastland's own personal attorney, Roger Robb, already a close friend of Burger's, to assist him in the hearings. Burger took the advice. With Robb, he set up an office in the Watergate office complex, where they assembled records and previous opinions and tried to anticipate what curves the liberals might throw at Burger. They also gathered support from the organized bar associations, from law school deans, and from influential private attorneys.

Burger went to the Supreme Court one day and stopped by to see Brennan, the consensus builder in the Warren Court. Burger knew it was Brennan, with his instinct and passion for political maneuvering, who was the key strategist among the liberal bloc on the Warren Court. As Burger entered Brennan's chambers along the south corridor, he walked through the office used by Brennan's law clerks. There, hanging on a wall, was a grotesque rubber mask of Nixon, a souvenir of the counter
-
inaugural demonstration that had been staged by antiwar activists and others opposed to the President. He recognized one of Brennan's clerks as a Bazelon clerk of the previous year. The clerk was scheduled to begin work for Kennedy on the Senate Judiciary Committee at the end of the term.

Learning that Brennan was not in the office, Burger turned to leave. On the inside of the door there was a Black Power poster with the clenched, raised fist. Burger sensed what he was up against. Brennan's law clerks did not share his values. They were part of a different world. Bazelon to Brennan to Kennedy.

On Tuesday, June
3,
two weeks after his nomination, the Senate Judiciary Committee opened hearings. Burger was ready as the session opened at
10:35
a.m
. Behind him in the audience sat six past presidents of the American Bar Association, eleven past presidents of the Federal Bar Association, and twelve past presidents of the District of Columbia Bar Association. All were prepared to speak in support of his nomination.

Burger was offered a few easy questions by Eastland and other members of the committee. Finally, from his hunched position, Eastland turned to the man Burger was certain would present him with a problem. "Senator Kennedy," Eastland mumbled.

"No questions, Mr. Chairman," Kennedy replied in his confident Boston accent.

Each Senator took his turn, and there was not a word of criticism. The members seemed almost to compete with each other to praise Burger and take shots at the Warren Court. The hearing was adjourned in less than two hours. Burger was ecstatic. The committee unanimously recommended his confirmation to the Senate. Six days later the Senate voted
74
to
3
to confirm him. The process from nomination to confirmation had taken only eighteen days.

A week later, only one week before he would be sworn in as Chief Justice, Burger was in his office at the Court of Appeals when he got some very distressing news. The Supreme Court had announced that it had overruled his Court of Appeals decision in a case involving the flamboyant New York black Congressman Adam Clayton Powell. The vote was an overwhelming
7
to
1,
with Stewart the lone dissenter. Warren himself had written the majority opinion
(Powell
v.
McCormack).
The press would have
a
field day.

The House of Representatives had voted to deny Powell his seat because he had flouted a slander judgment and allegedly had misused funds. Burger's opinion, one of three separate ones, held for the House against Powell. Powell had appealed to the Supreme Court, and now Warren had declared for a heavy majority that Congress could not deny the Congressman his seat. The reversal was a typical example of the Warren Court's activism—mere meddling in Burger's view. He had already been overruled twice that year, but this was the first time since his nomination. There should have been some way for Warren to avoid a direct slap at him, perhaps with an unsigned opinion. Being reversed by the Supreme Court, however, would soon be
a
thing of the past. He could take comfort in that. In one more week, the Warren era would be over.

Burger vowed to himself that he would grasp the reins of power immediately. David Bazelon would be his model. For the past six years he had watched enviously as Bazelon used his position as Chief Judge to serve his own philosophy. As spokesman for the Court of Appeals, as its senior judge and chief administrator, Bazelon was able to assign extra law clerks, and control the office space, supplies and accouterments that make working conditions a pleasure or an annoyance. His influence with his colleagues, and especially the new judges, was legendary. They fell all too easily under his spell. For Burger, that too was now an old battle,
a
thing of the past.

Later that week, Burger left his office in the Court of Appeals and went out to Pennsylvania Avenue to meet the Solicitor General Erwin N. Griswold, the man responsible for arguing the federal government's cases before the Supreme Court. Griswold had the presidential commission, signed by the President and the Attorney General, that appointed Burger. It was to be delivered to the Court before the swearing-in.

Griswold and Burger took a cab to the Court, where Warren greeted them in his chambers. The Powell case was apparently on his mind. "I hated to decide for Powell," Warren told them.

Griswold thought Warren was going to explain the difficulty and awkwardness in overruling the next Chief Justice —perhaps apologize, saying that, of course, he had to call them as he saw them. Instead, Warren told them that he didn't like Powell and regretted having to decide in his favor. Powell was a disgrace, Warren said. But as a matter of law, it would be impossible to let Congress exclude members in such fashion. In denying Powell his seat, Congress had asserted an absolute and unreviewable right to determine who was suited to sit, contrary to what the Constitution said. "It was perfectly clear," Warren remarked. 'There was no other way to decide it Anybody could see that."

My God, Griswold thought, Warren must not realize that Burger was one of the lower court judges he had just overruled. Griswold knew Warren did not write his own opinions, but was he so out of touch? Griswold carefully avoided looking at Burger. He would have smiled, and perhaps Burger would not think it one bit funny. The meeting was soon over and as they walked out, Burger good-naturedly shrugged off Warren's comment "He certainly didn't give me much credit for what I did in the Adam Clayton Powell case," he told Griswold.

Burger had heard that Warren delegated the writing of his opinions to his clerks. That was only one of the many practices that he was going to stop. As far as he was concerned, the Warren legend was a fabrication. He thought Warren was sloppy, politically motivated, interested more in results than in legal reasoning. He was a man playing to get himself a place in history, a man without intellectual honesty. Burger used to talk scornfully to his clerks about Warren's liberalism. It was late in coming, he said. Warren had been aligned with the right wing of the Republican party in California and was supposedly a states' rights champion. As governor he had strongly supported the internment of Japanese-Americans during World War
II.
As district attorney, he had authorized offshore searches of questionable legality outside the three-mile limit. Burger told his clerks that Warren was "right-wing when it paid to be right-wing, then had shifted when that became fashionable."

On June
23,
Burger joined the members of the Court, the President, Attorney General Mitchell, other ranking Justice Department officials, including F.B.I. Director J.
Edgar Hoover, and members of the legal and Republican law-enforcement establishment for his swearing-in at the Supreme Court

Since it was the last day of the term, the Warren Court first handed down its three final opinions. The decisions, all involving criminal cases, effectively overruled three more conservative precedents. They were precisely the kinds
of
opinions that Nixon had campaigned against

Nixon, dressed in a formal cutaway, showed
no
emotion. When the last opinion was read, Warren recognized the President. Nixon stepped to the podium. "There is only one ordeal which is more challenging than
a
presidential press conference, and that is to appear before the Supreme Court." He reviewed Warren's career and praised the Chief Justice. But, he added, "The Chief Justice has established
a
record here in this Court which will be characterized in many ways."

In response, Warren gave a lecture—his last words from the bench—which seemed directed at Nixon. There was acid in the oblique graciousness. His theme was continuity. "I might point out to you, and you might not have looked into the matter, that it is a continuing body
...
the Court develops the eternal principles of our Constitution in accordance with the problems of the day." It was Warren's way of saying that Richard Nixon too would pass. The Court, Warren said, serves only "the public interest," is guided solely by the Constitution and the "conscience" of the individual Justices. He was stepping down, Warren said, with a feeling of "deep friendship" for the other Justices "in spite of the fact that we have disagreed on so many things.

"So I leave in a happy vein, Mr. President, and I wish my successor all the happiness and success in his years on the Court, which I hope will be many."

1969 Term

By July
, Chief Justice Warren Burger was in his new offices. With three months before the start of the new term, and the other Justices spending the recess at home or on vacation, he intended to consolidate his power. First, he would assume control of the building itself. On July
19,
Burger, in shirt sleeves, assembled his law clerks and the Marshal—the top administrative and business officer of the Court—for a tour of the large building.

Beginning in his own small office Burger remarked that it was smaller than his old one at the Court of Appeals. More distressing was the absence of an adjoining office that could be used as a workroom. As Chief Justice he was third in protocol as official representative of the United States government after the President and Vice-President He would receive ambassadors and visiting dignitaries. "How can I entertain heads of state?" he asked, pointing to his relatively cramped quarters. It would never do. What would his guests think?

Passing through the secretaries' outer office, the procession stepped through to the most secret place of the Court, the conference room where the nine Justices met to vote and decide cases. Few outsiders had seen the conference room during the Warren years. No person—clerk, staff member or secretary—was in attendance when the Justices met, usually on Fridays, to discuss cases and take initial votes.

Burger surveyed this large, oak-paneled room and its rich carpet. A twelve-foot-long table covered in green felt stood in the center of the room under a splendid chandelier, and was surrounded by nine handsome high-backed green leather swivel chairs. A brass nameplate on the back of each chair identified its occupant. The Chief Justice sat at one end of the table, the senior Associate Justice at the other. The other Associates sat three on one side, four on

the other. Now this room, the Chief said, is perfect for entertaining guests. He told the group that in the original architect's plans, the room had been intended for the Chief Justice. Perhaps the conferences might be better in larger, more formal settings, the East and West conference rooms on the other side of the building. It might be more appropriate in that "neutral corner," Burger said. Then this room could become the Chief Justice's ceremonial office. He could also use it as a private dining room. Next, Burger led the group across the corridor to the courtroom proper. They entered from behind the bench, as the Justices did when they came to hear oral arguments or announce decisions. Burger stepped down to the pit in front of the mammoth bench. The large dignified room, with its dark-red curtains, had twenty-four marble columns rising forty-four feet, cathedral-like, to a sculpted marble panel.