The Brethren (62 page)

Dear Chief,

I think the analysis tracks your oral analysis yesterday of the issue. Needless to say insofar as its incorporation, or any part of it, furthers your preparation of the opinion I freely deed it to you in fee simple absolute.

I don't think I presume in saying that that is also the thought of the brethren who have sent you memos on this and other issues. I think Lewis, Potter and Bill Douglas (I borrowed some of the attached from Bill's memo) have written out some particularly persuasive views.

I repeat that I enthusiastically share the view expressed I think by all yesterday that we should announce our decision in this case as promptly as the preparation of a thoughtful and comprehensive opinion will permit. To the extent you find useful what others of us have written out, that objective is of course furthered.

When the Chief got the memo, he didn't think it offered much help. Only Brennan would be so presumptuous. Of course, no decision should wait beyond the time necessary to prepare "a thoughtful and comprehensive opinion."

To Douglas, Richard Nixon was, and had been for nearly thirty years, the enemy. The Nixon presidency had all the earmarks of a hostile takeover of government.

Nixon was "the other side." Douglas told friends how Nixon had once reminded him of a speech Douglas had given more than thirty years before to Nixon's law-school class at Duke University. Nixon said the speech had been so impressive that it inspired his own political career. Hearing that, Douglas said, was the most upsetting moment of his life, the only time he actually felt "suicidal."

Douglas was overjoyed that the case was going against Nixon. He wanted to keep the Chief happy and see to it that Burger's opinion was as solidly anti-Nixon as possible. But Douglas was worried about the timing. If he had been assigned to write the opinion, it would have been out in a day or two. The work was already done and the quickest denial of Nixon's claim was in order. The House Judiciary Committee had just released its own transcripts of eight of the Nixon tapes that had been turned over earlier. In an elaborate
131
-page, side-by-side comparison the Committee had demonstrated that Nixon's version was hopelessly incomplete, that it had twisted meanings and had omitted damaging portions.

Nixon's former aide John Ehrlichman, meanwhile, was on trial at the Federal District Courthouse for approving the break-in at the office of Daniel Ellsberg's psychiatrist. That outrageous crime typified Nixon and his administration as far as Douglas was concerned. Douglas had long suspected that the White House had broken into his office and stolen a copy of his memoirs, and had bugged the conference room. He was sure, although he had no proof.

Since Nixon's strategy was delay, the opinion writing must be speeded up. Late in the morning of July
10,
Douglas phoned Brennan. Would Brennan join in another attempt to persuade the Chief to divide the opinion among all eight Justices? Warren's death had changed things, Douglas said. Burger would have the funeral preparations to worry about. The opinion could not be allowed to drag on all summer. Without a joint effort, it might do just that.

Brennan found Douglas's request amazing. Why hadn't he spoken during conference? He needed only to have seconded Brennan's motion. This was unforgivable. The time to speak up had passed. Brennan would not lead a charge up that hill again.

But Douglas pushed him, and Brennan agreed finally to accompany Douglas to the Chief's office to discuss the matter. When they arrived, the Chief seemed more relaxed than usual. He was conciliatory. He was aware of their feelings, he said, but this was one of those cases that would be better if written by a Chief Justice. Of course he would welcome the assistance of all the others. He sounded sincere to Brennan.

Brennan could not help but feel that Warren's death had sobered the Chief. An outpouring of national praise for Warren as a great leader, healer and compromiser might have prompted Burger to reassess his relations with his colleagues. Perhaps Burger would adopt Warren's willingness to lead through compromise.

The Chief said that he would circulate each section of his opinion as soon as he finished it. Something would be ready in a day or so, and he would welcome suggestions.

Douglas and Brennan knew the Chief had closed his mind on the subject. It was unlikely that he would turn the opinion over to the others, now that he had begun work. They left, concluding that it might have been worse. Perhaps a unanimous opinion was still possible—even from the Chief's chambers, Brennan said.

The Chief felt pressured. He had spent hours at his desk with his two clerks. The work was going smoothly. Honoring his promise, he decided that the first two sections of the draft were ready to circulate. One dealt with the facts, the other with the technical, though uncontroversial, question of appealability. Just over a week had passed since conference. Perhaps now he would convince the skeptics of his ability to turn out an opinion in timely fashion. Burger read the material over and decided to add a brief cover memo.

MEMORANDUM TO THE CONFERENCE

The enclosed material is not intended to be final, and I will welcome—indeed I invite—your suggestions. Regards, WEB.

Though the job had eluded him, or he it, Potter Stewart knew what it meant to be a Chief Justice. A Chief must be a statesman, a master of the Court's internal protocols, able to inspire, cajole and compromise, a man of integrity, who commanded the respect of his colleagues. But, most of all, a Chief Justice had to be a student of the nation's capital, able to see the politically inevitable, willing to weigh the Court's destiny against other Washington institutions. A Chief Justice, Stewart believed, should be
a
man not unlike himself.

Warren Burger was none of these things. He was
a
product of Richard Nixon's tasteless White House, distinguished in appearance and bearing, but without substance or integrity. Burger was abrasive to his colleagues, persistent in ignorance, and, worst of all, intellectually dishonest "On ocean liners," Stewart told his clerks, "they used to have two captains. One for show, to take the women to dinner. The other to pilot the ship safely. The Chief is the show captain. All we need now is a real captain." Stewart was convinced that the Chief could never lead them to a safe, dignified opinion befitting one of the most important cases in the Court's history.

When the Chief's first two sections came in, Stewart read them carefully. The facts section was poorly written, dashed off with little care. There was not enough attention to the sequence of events or to the key issues.

The section on appealability was not much better. It offered no cogent response to St. Clair's argument that Sirica should first have held Nixon in contempt before the case could be brought to the Court. This should not have become
a
complicated section to draft. Douglas's draft had already included two simple reasons why the Court could and had to intervene: the risk of a constitutional confrontation between the two branches of government; and the protracted litigation that might result if normal contempt procedures were followed.

The next afternoon, July u, Stewart and Powell talked about what should be done with the Chief's sections. The two men agreed that they were awful. If they were not vastly improved, the sections would be an embarrassment to the Court. Even worse, if they foreshadowed the quality of what was to come, the opinion not only would hurt the Court's reputation, but could damage its future relations with the other branches of the government. This opinion would be analyzed and dissected for years to come.

All of the eight Justices seemed to be in general agreement on the basic outline. It would be
a
shame not to produce the best possible piece of legal work, which the Chief could not conceivably do alone. Despite what he said about welcoming comments from the rest, they knew Burger rarely incorporated individual suggestions unless he saw a risk of losing his majority.

Stewart and Powell talked strategy. Brennan's suggestion of a joint opinion could be implemented, but they would have to work behind the Chief's back. Each of the other Justices would systematically propose alternative drafts to various of the Chief's sections. They all could then express their preference for the substitute sections. Seeing that he was outnumbered, the Chief would be forced to capitulate. They would have to gauge White's thinking and see if he could be brought along. Blackmun would have to be won over at once. Although he had broken with Burger in the past and was disgusted by Watergate, Blackmun might support Burger here. They would have to enlist him quickly, tactfully, somewhat indirectly. They knew that Blackmun enjoyed preparing the detailed facts sections in cases. If he could be persuaded to redo the facts section, the others could praise it, suggest it be incorporated, in reality substituted. That would cement an alliance with Blackmun. In turn, he would support the alternative drafts on the other sections. Once committed, Blackmun could oppose the Chief as forcefully as any of them. Stewart left the discussion convinced that the center could once again control the outcome, though it would not be easy.

In addition, Stewart was as concerned with Powell as with any of the others. His proposed section on executive privilege had been Powell both at his best and at his worst. By trying to steer a middle course, Powell had accepted too much of the claim of executive privilege. On Powell's bottom line, the President lost and would have to turn over his tapes, but his language was hat-in-hand. It might provide the President with a rationale for defiance.*

* Powell's proposal said that in deciding the case
"a
court should be guided by a solicitous concern for the effective discharge of [the President's] duties and the dignity of his high office." Powell had said that there was a "public interest in preserving the confidentiality of the Oval Office and in avoiding vexatious harassment of an incumbent President. . . ." Protecting the confidentiality of the President "is of an entirely different order of importance" than protecting that of an ordinary citizen.

Powell saw it differently. He was sure that his memorandum would set the style and tone of the final opinion. Brennan had already told him he was "greatly impressed," and Brennan could bring his liberal colleagues, Marshall and Douglas, on board. Stewart was in agreement. Blackmun could be persuaded. White, of course, had to be convinced, perhaps with Stewart's help.

That left the Chief. Powell believed that his approach would appeal to Burger. Powell was sure that the Chief wanted to push Nixon off the cliff at the point where the fall was the shortest. Powell's memorandum gave weight to executive privilege, recognizing each of the President's arguments. His was the only proposal that solved the delicate problem of issuing an order to another branch of the government in a manner least likely to provoke defiance.

Later that afternoon, Powell and Stewart approached Blackmun. The Chief's facts were inadequate. Only Blackmun could repair the damage, they said. Blackmun readily agreed. He would do his best with the facts. He certainly could do better than the Chief had done. He gathered all the relevant material and headed for the Justices' library.

When Brennan heard of the Stewart-Powell plan, he thought it was magnificent He was also delighted to learn that Blackmun had so enthusiastically expressed his independence. Brennan agreed that Blackmun should handle the facts. He thought the rest of the line
-
up equally obvious. Douglas should take on appealability; he himself standing; White the
17
(c) rule on admissibility and relevance; and Powell and Stewart, together, the extremely sensitive executive privilege section. Marshall, the Court's least productive worker, could be mollified without giving him a section.

Stewart took the first step. "Dear Chief," he wrote, "Responding to your circulation of yesterday, I think, with all due respect, that Bill Douglas's draft on appealability is entirely adequate ..."

Brennan quickly followed with
a
similar memo to the Chief praising Douglas's section.

Powell dictated a single cautious sentence: "Dear Chief: Potter's suggestion as to Bill Douglas's draft on appealability is entirely acceptable to me. Sincerely, Lewis."

Douglas sent his own "Dear Chief" memo saying Brennan had shown him
a
proposal on the standing section:

". . . It seems to me to be adequate and might put us quickly another rung up the ladder if the other Brethren agree."

When a copy of Douglas's memo arrived in his chambers, Brennan was afraid that it might appear that he was circulating sections privately. He immediately sent his standing section, previously given only to the Chief and Douglas, to all the others.

The four memos from Stewart, Powell, Brennan and Douglas were greeted by the Chief with some consternation. He had hardly begun and four of his colleagues were already criticizing his work. Everyone seemed to be in such a hurry. Deciding to meet what he thought they saw as the major problem—a possible delay of the opinion—Burger gathered together his drafts of the standing and
17
(c) sections for circulation. In a cover memo, he said: "I believe we have encountered no insoluble problems to this point."