by Bob Woodward
The Chief also expressed concern about Marshall's recent emergency appendectomy. Marshall had not allowed the news media to know about complications that had arisen from a stomach ulcer. And though Douglas was healthy, he had had his heart "pacemaker" batteries replaced three months before.
The message was clear. Reluctantly but inevitably, the Chief was having to assume additional burdens of leadership. One of the most pressing problems of the approaching term was the evident confusion of the lower federal courts in the wake of the Charlotte desegregation and busing decision. Many district judges had ordered massive busing in an apparent attempt to achieve racial balance in each school, the Chief explained. This had provoked a massive public outcry. It was all unnecessary, the Chief said. The Charlotte decision did not require racial balance. He told the clerks how he had struggled to overcome Black's adamant opposition to any busing. Only his personal effort had allowed the Court to come down with a unanimous decision.
One of the clerks, familiar with the case from a year's clerking at the Fourth Circuit Court of Appeals, politely challenged Burger. In the Charlotte case, the Supreme Court had approved Judge McMillan's order and McMillan had used racial balance in devising the busing remedy.
No, the Chief explained patiently, as the author of the opinion he knew what the Court was trying to achieve. Since the original school desegregation decisions in 1954 and 1955, the lower courts had been confused about whether the Supreme Court was calling for desegregation or for integration. Clearly, the Court was calling only for desegregation. Forced racial mixing, racial balance, or total integration had not been demanded.
Federal district judges in about twenty desegregation cases in large Southern metropolitan regions had misread the Charlotte opinion, Burger told them, and the result had been orders for massive busing. As it happened, he had an emergency request on his desk from the Winston-Salem, North Carolina, school district to stay a busing plan ordered by a district court judge. The judge had mistakenly ordered busing to achieve racial balance. Burger said he would end the unnecessary confusion over busing by writing a single-justice opinion to accompany his order. This would be no "post hoc" repair job, Burger said, but simply a clarification.
The clerks had heard the rumors of the rancorous debates over the Charlotte case. Varying scenarios placed Stewart, Brennan, Harlan, Douglas and even Marshall in key roles resolving a conflict brought to a head by the obstinacy of both Black and the Chief. Now, they were bewildered to find that Burger expected them to believe that he had been the single author of the final opinion. Several wondered whether the Chief even understood what he had "authored" in the Charlotte case. He was espousing the position he had been forced to surrender last term.
Burger turned to other matters, pausing briefly here and there before spinning off in new directions. Several clerks glanced at their watches. They had hundreds of cert petitions and scores of memos to complete. The Chief's head clerk noticed that the nodding of one of the new clerks was becoming more and more pronounced. He seemed to be asleep. A nudge was passed along the perimeter of the table.
It was nearly three o'clock when Burger got up and returned to his office to deal with the Winston-Salem case. He telephoned several of the other Justices, some of whom were not yet back in Washington.
Brennan was adamantly opposed to a stay. The lower court had acted properly, he declared. Several of the Justices also expressed their opposition. On the other hand, the week before, Black had issued a stay order in a similar busing case (Corpus Christi), saying that the situation way too confused to be considered on the spur of the moment. Burger did not want to grant the stay on his own; his intention could too easily be misunderstood. He did, however, want to make the point that integration and strict racial balance were not required. He finally thought that he knew how to achieve both objectives. He wrote that an inadequate record and the fact that only one week remained before the schools were scheduled to open made it impossible to grant a stay in the Winston-Salem case. But any interpretation that the Charlotte opinion required racial balance was "disturbing," and might involve "misreadings." He believed the district and appeals court judges in Winston-Salem had read the Charlotte opinion to mean that racial balance was required. The Chief wanted to send a message to those judges and all other lower-court judges.
In the Charlotte opinion, the others had insisted on saying that racial balance was not simply a means to assess whether there was a violation of the law, but that it was "a useful starting point in shaping a remedy to correct past Constitutional violations." Some selective editing was needed, Burger concluded.
He wrote that racial balance was "an obvious and necessary starting point to decide whether in fact any violation existed," and he stopped there, leaving out any reference to its use in shaping a remedy. Then he carefully chose from the Charlotte opinion the language that he felt was important. "If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would then be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole." To be sure that no one missed the point, the Chief added the emphasis. He released his ten-page opinion on August 31, the day after the schools opened in Winston-Salem.
Brennan was especially unhappy with the tone. The order had been written as if it were meant to be construed as a majority opinion, as if the Chief were speaking for the Court. Burger had mischaracterized the case, Brennan told his clerks. The Court had settled all this last year.
There were, Brennan was well aware, vague, even contradictory notions in the Charlotte opinion. That had been inevitable, given the demand for unanimity. But the lower court judges had interpreted it correctly, as Brennan had hoped they would. Now, in order to put the brakes on the lower courts, Burger was trying to confuse the situation all over again. Brennan was offended that the Chief in his opinion would go so far as to offer his view that three hours average daily busing was excessive. Brennan agreed, in fact, with this view, but it was inappropriate for the Chief to offer his personal standard.
Burger had also suggested that if the busing was too extensive, students should be allowed to transfer to schools nearer their homes. This was an invitation to school districts to subvert desegregation orders, Brennan thought. One of Brennan's clerks joked that Nixon—who the month before had ordered the Department of Health, Education and Welfare to hold busing to "the minimum required by law"—had given Burger his marching orders.
No, Brennan responded, Warren Burger did not need Richard Nixon on this issue.
Tension over Burger's unilateral redefinition of the Charlotte case was eclipsed by the rapid physical deterioration of Black and Harlan.
The Pentagon Papers case turned out to be only a temporary reprieve for Black. His headaches had resumed with greater frequency and intensity. Douglas counseled Black to resign. But Black would not accept the advice.
He had checked into the Bethesda Naval Medical Center for four days in mid-July and returned for two more days of tests later in the month. Despite his doctor's conclusions to the contrary, Black was certain that he had cancer. He had lost his appetite and weighed barely 115 pounds when his doctors asked his family to bring him back to the hospital in mid-August. Two days before he entered, he asked a former clerk, Lou Oberdorfer, a prominent Washington attorney, to draft a letter of resignation. Oberdorfer brought a copy to Black the next night. Black left the date open, but he signed it. "This," he said, "will protect the Court."
Black entered the hospital the next morning, August 27. Harlan, undergoing diagnostic testing for recurring back pains, was in the next room.
In contrast to Black, Harlan continued to run his chambers from his hospital bed. Nearly blind, he could not even see the ash from his own cigarette, but he doggedly prepared for the coming
term. One day a clerk brought in an emergency petition. Harlan remained in bed as he discussed the case with the clerk. They agreed that the petition should be denied. Harlan bent down, his eyes virtually to the paper, wrote his name, and handed the paper to his clerk. The clerk saw no signature. He looked over at Harlan.
"Justice Harlan, you just denied your sheet," the clerk said gently, pointing to the scrawl on the linen. Harlan smiled and tried again, signing the paper this time.
Black didn't want to see any visitors. He was convinced that he was going to die. Nixon sent a letter saying he wanted to pay him a visit. Black declined. Burger came by to chat but Black didn't respond. Harlan tried repeatedly to cheer Black, and he failed.
"I can't see," Black told one of his sons. "I've got to quit. . .. And I'll tell you something else, John Harlan can't see a thing. He ought to get off the Court, too."*
Black's major concern, from the moment he entered the hospital, was to make sure that his most private papers, memos and conference notes were burned. Publication would inhibit the free exchange of ideas in the future. He felt that he had been treated unfairly in the late Justice Harold H. Burton's diary, in which Burton had written that Black at first resisted desegregation. Black had also been shattered by the biography of former Justice Harlan Fiske Stone, written by Alpheus Thomas Mason. Black had told Burger that when he read Stone's biography, he had discovered for the first time that Stone couldn't stand him.
Black didn't want that kind of use made of his private papers. He ordered his son, Hugo, Jr., to burn them. His son stalled for a time, hoping that his father's condition would improve, but Black's health continued to deteriorate. His papers were finally retrieved and burned. On September 17, Black's messenger delivered his letter of resignation to Nixon. He was eighty-five. He had served thirty-four terms.
At about the same time, Harlan received the news he had feared. The tests showed that he had cancer. Harlan decided to resign, but he delayed his announcement to avoid detracting from the attention and the adulation he knew Black would receive. On September 23, Harlan submitted his letter of resignation. He was seventy-one and had served sixteen terms.
Two days later, Black died.*
With the Court down to seven Justices, the conference met quickly to revise its schedule. The Justices realized the Court might be shorthanded for some time if there were protracted confirmation battles.
A number of capital punishment cases, scheduled for argument the first day of the term only two weeks away, were the first to be postponed. Such cases would require a full nine-man court. In any case, Burger was interested in deferring as many cases as possible. With Harlan and Black gone, Douglas's anticipated votes to grant cert in the war cases were gone. Burger was certain that Nixon's new appointees would be natural allies.
But when the administration made its move, it seemed to Burger that Nixon had learned nothing from the Haynsworth-Carswell,disasters. The first name that was sent to the American Bar Association screening committee was conservative Republican Congressman Richard Poff of Virginia. The prospect was greeted unenthusiastically in legal circles. It seemed unlikely that the A.B.A. committee would give Poff anything approaching a strong endorsement. Poff quickly withdrew his name.
Other possibilities were leaked. One that caused an uproar in the press and legal establishment was Democratic Senator Robert Byrd of West Virginia. Nixon wanted Byrd's name sent to the screening committee, even though
* The minister selected to deliver the eulogy went to Black's library and found various books that Black had underlined, including The Greening of America, by Charles Reich, one of his former clerks. The minister selected some of the underlined portions to read at the funeral. During the eulogy, Brennan gently nudged Stewart. "Hugo would turn over in his grave if he heard that," Brennan said. Only Black's intimates knew that Black thought Reich's book absurd, and that Black underlined the sections he disliked.
Byrd, a law school graduate, had never been admitted to the bar and had never practiced law.
From the hospital, Harlan expressed his concern to Stewart about the men being mentioned as possible successors. They were both puzzled by Nixon's seeming willingness to denigrate the Court by once more nominating lackluster, even obviously unacceptable, candidates. The rest of the Court shared Harlan's worry.
Nixon had two criteria. He was still looking for a Southerner, and he wanted another "first" for his administration. He wanted to appoint the first woman to the Court.
Mitchell quickly came up with a male candidate from Arkansas, a local municipal bond lawyer, Herschel Friday. On Thursday afternoon, October 7, Mitchell and Rehnquist interviewed him. The following morning, they interviewed their top woman candidate, Mildred Lillie, a California Court of Appeals judge.
The White House counsel, John Dean, was sent to interview the candidates. Mitchell had lost some credibility with the President in the wake of the Haynsworth and Carswell failures. Friday was a good lawyer, Dean reported, but he would make Carswell look good as a Senate witness. He knew very little constitutional law and would have trouble being confirmed. Lillie had similar problems, Dean said. The A.B.A. committee probably wouldn't approve her, since she lacked sufficient judicial experience.*
Rehnquist was also unimpressed. "Christ, we've got to be able to do better than this," he told Kleindienst. He preferred New York Court of Appeals Judge Charles D. Breitel, a brilliant conservative jurist.
But Mitchell was satisfied. On Tuesday, October 12, he sent the names of Friday and Lillie to the A.B.A. committee.
Burger was increasingly worried. Another Nixon attempt to appoint someone without qualifications, leading to another drawn-out battle with the Senate, would severely damage the Court's prestige. The possibility that the Court might have to limp along for an entire term with seven justices, because of White House bungling, was intolerable. The Chief had discussed the need- for prompt and careful selection of candidates with Mitchell on several occasions
* See John Dean, Blind Ambition, p. 50.
since Black's and Harlan's resignations. The message didn't seem to be getting through.
On October 13, Burger once more tried to get the point across in a "personal and confidential" letter to Mitchell. Burger asked Mitchell and his "client" (Nixon) to keep the Court's needs in mind. "It is beyond dispute, I think, that the Court as an institution has been sorely damaged in this last decade."
Reminding him of the embarrassment caused by L.BJ.'s effort to replace Chief Justice Warren with Fortas, and the subsequent scandal over Fortas's finances, Burger noted that the "completely unwarranted rejection of Judge Haynsworth and the subsequent rejection of Judge Carswell were also bruising episodes.
"The loss in September of two strong and able Justices— one of whom had become virtually a legend—is a blow of a different character but, nevertheless, a new injury to the institution," Burger said. The Chief said that he understood Nixon's desire to appoint a woman to the Court, but argued against a "woman appointed simply because she is a woman."
Burger also expressed sympathy for Nixon's wish to appoint a Southerner. "As I indicated to you in our conversation some weeks ago and again more recently, I recognize that geographical factors cannot be ignored by the President."
The Chief proposed that the President consider two candidates from the South in addition to Herschel Friday, whom he described as an attorney of "very superior professional qualifications." One was Lewis Powell, sixty-four, a private attorney in Richmond and a former president of the A.B.A. The other was Federal District Judge Frank Johnson of Alabama, a liberal with a strong civil rights record. Burger also put forward the names of seven other judges from the Northeast as possibilities.
The following afternoon, Mitchell and Burger met in the Attorney General's office. Two hours later, Mitchell told reporters that the administration was considering nine candidates besides Friday and Lillie.
By Monday, October 18, the head of the screening committee reported that
the main candidates, Lillie and Friday, would have serious trouble getting A.B.A. approval. The formal vote would be on Wednesday. Nixon and Mitchell didn't wait. At 8:20 a.m. Tuesday, Mitchell phoned Lewis Powell at the Waldorf-Astoria Hotel in New York. "I am authorized by the President to offer you an appointment to the Supreme Court," Mitchell said.
Powell declined. He reminded Mitchell of a letter he had written shortly after the Carswell defeat. At the time he had heard that he was on a small list of those under consideration, and he had written Mitchell to say that he didn't want the job, that at sixty-two he was too old to begin a new career. Now, Powell reminded Mitchell, he was two years older.
Mitchell was aware of the age problem. The President had agreed when Powell's name came up two years earlier that he was too old. He wouldn't have enough time on the Court to really influence it. But now the situation was more urgent. Powell could get confirmed.
Mitchell asked Powell if he would remain by the phone and promised that he would call him back at 10:30 a.m. Powell waited. It was almost 11:15 a.m. when Mitchell called to ask Powell to reconsider. Powell declined again.