Eisenhower in War and Peace

by Jean Edward Smith

  Johnson and his fellow New Deal Democrats from the South were caught between a rock and a hard place. They did not want to diminish the authority of the president to conduct foreign policy, but their constituents expected them to vote for the Bricker Amendment. In Johnson’s case his major financial backers, Texas millionaires Sid Richardson, Clint Murchison, H. R. Cullen, and H. L. Hunt, insisted that he vote in favor of it.

  The strategy Johnson devised was convoluted, even by LBJ’s standards. First, he convinced elderly Walter F. George of Georgia, the doyen of the Senate who for many years had chaired the Foreign Relations Committee, to introduce a more benign resolution as a substitute for the Bricker Amendment.g Then he convinced his caucus to vote against Bricker’s amendment in favor of the George substitute.60 The almost solid Democratic phalanx, supported by Eisenhower Republicans, would ensure the defeat of the Bricker Amendment. Finally, and most important, Johnson had to count noses well enough to ensure that he and his southern colleagues could safely vote for the George substitute, but that it would ultimately fail to win the necessary two-thirds for passage. Except for the occasional Medici prince in Renaissance Florence, there were few politicians other than Lyndon Johnson who could have framed such a scheme.

  The Senate commenced consideration of the Bricker Amendment on January 27, 1954. For the next month the “Bricker Debate” generated headlines across the country—a no-holds-barred battle pitting the White House and its few Republican supporters against the aroused anger of the party’s Old Guard—with most Democrats aligned on Ike’s side. White House operatives, including even Sherman Adams—who as a former congressman had access to the floor—besieged the Republican cloakrooms; Johnson worked the Democratic side.

  On Friday, February 26, 1954, the Senate began to vote. First, on the Bricker Amendment itself, S.J. Res. 1, which, when initially introduced the year before, had enjoyed 64 cosponsors. As the clerk called the roll, it was evident the amendment was going down. Of the 19 Democrats who had originally signed on in support, 13 voted no. White House pressure caused additional Republicans to defect, and when the tally was announced, the Bricker Amendment was defeated 42 votes to 50. Not only did the amendment fail to receive the necessary two-thirds, it did not receive even a simple majority.61

  The administration introduced its own resolution, the Knowland-Ferguson Amendment, but the Senate voted overwhelmingly (61–30) to put it aside in favor of the George substitute. Bricker and the Republican Old Guard rallied to support George’s amendment as the best that could be worked out, and Vice President Nixon, who was in the chair for the historic vote, ordered the clerk to call the roll. It was a moment of high drama. Johnson and the southern Democrats voted as a bloc in favor of the George substitute; all the while LBJ was nervously following the count. When the roll call concluded, 60 votes were recorded in favor and 30 against, precisely the two-thirds needed for passage. One of Johnson’s no votes had failed to answer the roll call. Senator Harley Kilgore of West Virginia, tenth on the Senate’s seniority list and a firm opponent of limiting presidential power, was not on the floor. The vote was kept open as Johnson’s aides frantically searched for Kilgore. He had fallen asleep on the couch in his office, apparently having lost an afternoon bout with the bottle. As Johnson stalled, Kilgore made it to the floor, pulled himself together, and nodded to the chair.

  “The Senator from West Virginia,” Nixon said.

  “Mr. Kilgore,” the clerk intoned.

  “No,” Kilgore voted, as he walked unsteadily to his seat in the Democratic front row of desks.

  “On this roll call,” Vice President Nixon announced, “the yeas are sixty, the nays are thirty-one. Two-thirds of the Senators present not having voted in the affirmative, the joint resolution is rejected.”62

  Eisenhower won the Bricker Amendment fight, but his leadership had been hesitant. Not until John W. Davis and Professor Corwin aroused him to the constitutional danger posed by the amendment did he take his opposition public. The true victors in the amendment fight were Davis, who organized the opposition and knew which buttons to press, and Lyndon Johnson, whose Machiavellian dexterity ultimately saved the day.

  Eisenhower’s battles with McCarthy, Bricker, and the Old Guard of the GOP drove him toward the center—toward the Democrats and the liberal wing of the Republican party. When Chief Justice Fred Vinson died unexpectedly of a massive heart attack on September 8, 1953 (Vinson was sixty-three), it was natural that Ike should look to his left for a replacement. Eisenhower’s first instinct was to promote from within. That was the Army’s method, and it made imminent sense. There would be no break-in period. The obvious choice was Associate Justice Robert H. Jackson, who had been American chief prosecutor at the Nuremberg war crimes trials. The fact that Jackson was a Democrat did not seem to matter. What ruled him out was the bitter public feud he was conducting with Justice Hugo Black. Brownell warned Ike against taking sides, and also noted that Jackson, as an assistant attorney general, had backed FDR’s court-packing effort in 1937. The only Republican on the court was Harold Burton, a former senator from Ohio whom Harry Truman had appointed in 1945. But Burton was in poor health and probably not up to the job in any case.

  With an internal appointment ruled out, Eisenhower looked outside. His first choice was John W. Davis, scarcely a liberal, but whose credentials were unassailable. But Davis, who had been Woodrow Wilson’s solicitor general, had been born in 1873 and was far too old for the post. As a matter of courtesy, Ike asked Dulles if he were interested, but the secretary declined. “I’m highly complimented,” he told the president, “but my interests lie with the duties of my present post.”63

  That left Earl Warren. During the campaign, Eisenhower had met with Warren on several occasions and discussed the possibility of either a cabinet post or a Supreme Court appointment.h In early December, as president-elect, Eisenhower called Warren to tell him that he would not be asked to join the cabinet. “But I want you to know that I intend to offer you the first vacancy on the Supreme Court. That is my personal commitment to you.”64

  After his inauguration, Eisenhower appointed Warren one of four American delegates to the coronation of Queen Elizabeth II in London on June 2, 1953. (Marshall, Omar Bradley, and Fleur Cowles, wife of the publisher of Look, were the other delegates.) On his return to California following the ceremony, Warren stopped off in Washington, where Attorney General Brownell suggested that he accept the post of solicitor general prior to joining the court. According to Brownell, it had been some time since Warren had practiced law, and “the President believed that service as Solicitor General would be valuable prior to membership in the Supreme Court.”65 Warren, who was preparing to step down after three terms as governor of California, agreed to think about it. “I meditated long and hard,” Warren wrote later. “The position of Solicitor General is probably the most prestigious one in America in the practice of the law. Finally I wired the Attorney General in a sort of self-devised code that he but not others would understand, and notified him that if tendered the position by the President, I would accept.”66 On September 3, Warren held a news conference in Sacramento to announce he would not seek reelection as governor. There was no indication that he would be going to Washington as solicitor general, and Chief Justice Vinson died five days later.

  Eisenhower may or may not have assumed that his commitment to Warren included the chief justiceship. In his Memoirs, Ike said he did not. Warren assumed it did. In any event, finding himself unable to make an internal appointment, and with Davis and Dulles out of the picture, Eisenhower dispatched Brownell to California to offer the post to Warren. The fall term of the court would begin on October 5, and Ike wanted the vacancy filled before then. A number of important cases were on the calendar—including reargument of the great desegregation case Brown v. Board of Education—and it was important to have a full bench.

  Brownell flew to California and met clandestinely with Warren at McClellan Air Force Base, ten miles from Sacramen
to, on Sunday morning, September 27. Brownell made the offer and Warren accepted. The only condition, said Brownell, “is that you take your seat a week from tomorrow.” Warren allowed as how that was “a helluva way” to leave the governorship of California after eleven years, but if it was necessary it could be done.67 At his press conference three days later, Wednesday, September 30, Eisenhower announced Warren’s appointment as chief justice of the United States. It was a recess appointment, Congress was not in session, and Warren took the oath of office in the Supreme Court chamber on October 5.i

  Reaction to Warren’s appointment was overwhelmingly favorable. “Warren is honest and highly intelligent,” said The New York Times. “He is a liberal and humanitarian when basic issues must be faced. If rancor exists on the High Bench—as unhappily it does—there is no person better qualified than Earl Warren to sooth and mollify.” Governor Dewey said his former running mate would make “a superb Chief Justice.” Adlai Stevenson called it “an excellent appointment.”68 The Far Left and Far Right registered dissents. The Nation and The New Republic cited Warren’s support for the evacuation of Japanese Americans from the West Coast after Pearl Harbor and questioned whether he would be able to protect human rights and civil liberties.j The Republican Old Guard deplored Warren’s “leftist” attitude as California’s governor. Barry Goldwater scolded Eisenhower for appointing someone “who hadn’t practiced law in twenty-five years and was a socialist.”69

  Eisenhower’s brothers Edgar and Milton both criticized the choice. From his perch on the Far Right, Edgar said Warren’s appointment “would be a tragedy” and would cost Ike “a lot of support.” Milton, who was now president of Penn State, thought Warren to be dangerously to the right.70 Eisenhower took time off to reply to both. “What you consider a tragedy, I consider a very splendid and promising development,” he wrote Edgar. “I wonder how often you have met and talked seriously with Governor Warren. This I have done on a number of occasions. To my mind, he is a statesman, a man of national stature, of unimpeachable integrity, of middle-of-the-road views, and with a splendid record during his years of active law work.”71

  Ike told Milton he was surprised Milton thought Warren too far to the right, since so far “the only people that opposed the idea of his appointment were of the Chicago Tribune stripe.”

  “I believe we need statesmanship on the Supreme Court,” said Eisenhower.

  Statesmanship is developed in the hard knocks of general experience, private and public. Naturally, a man occupying the post must be competent in the law—and Warren has had seventeen years of practice in public law, during which his record was one of remarkable accomplishment and success, to say nothing of dedication.k He has been very definitely a liberal-conservative; he represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court.72

  When Congress reconvened in January 1954, Eisenhower sent Warren’s formal nomination to the Senate. The Republican Old Guard, led this time by William Langer of North Dakota, chairman of the Judiciary Committee, mounted a desperate attempt to derail the nomination in committee. Crackpot organizations of every variety testified that Warren was either a “100 percent Marxist” or an abettor of organized crime. Warren, as was customary at the time, declined to testify, and Eisenhower fought back with the full force of the administration. “If the Republicans [in the Senate] should try to repudiate him, I shall leave the Republican Party and try to organize an intelligent group of Independents, no matter how small,” Ike confided to his diary.73 Langer eventually found himself outnumbered, the Judiciary Committee voted to confirm Warren 12–3, and Majority Leader Knowland called the nomination to the floor on March 1. Warren was confirmed unanimously by voice vote. “One must hope,” said The New York Times, “that this kind of circus will not play again in Washington.”74

  Eisenhower’s appointment of Earl Warren to be chief justice of the United States, like John Adams’s appointment of John Marshall, was one of the major events of his presidency. Ultimately, Ike would appoint five justices to the court, including John Marshall Harlan and William Brennan.75 His appointees ushered in a judicial revolution in citizenship law, civil liberties, and civil rights. Eisenhower did not always agree with the decisions of the Warren Court, but he accepted his constitutional responsibility to “take care that the laws be faithfully enforced.” He was also the first president to submit his judicial nominees to the American Bar Association for formal vetting (a practice discontinued by George W. Bush but resumed by President Obama). His appointees to the lower federal courts, moderate Republicans such as John Minor Wisdom in Louisiana and Elbert P. Tuttle in Georgia, were judicial heroes in the civil rights struggle. Those who would criticize Eisenhower for not moving fast enough on civil rights should remember that it was his judicial nominees who made the revolution possible.

  * * *

  a Truman, Hoover, and Jimmy Carter did not play.

  b Eisenhower’s brother Edgar sent him a cartoon from the Chicago Tribune critical of his golfing. “My only comment,” Ike replied, “is that while I may allow my eye to stray from the ball, I am never so careless as to let it stray far enough so as to read the Chicago Tribune.” DDE to Edgar Newton Eisenhower, June 9, 1953, The Papers of Dwight David Eisenhower, vol. 14, The Presidency 287. Cited subsequently as 14 The Presidency.

  c In the argot of the 1950s, the damaging information in Bohlen’s security file pertained to his “family life,” a euphemism for his sexual orientation. The suggestion was that he was homosexual. The accusation, which was unfounded, was based on the fact that once while serving abroad he had rented his house in Washington to a homosexual couple.

  d Of the thirteen no votes, eleven were Republicans: John Bricker (Ohio), Styles Bridges (New Hampshire), Everett Dirksen (Illinois), Henry Dworshak (Idaho), Barry Goldwater (Arizona), Bourke Hickenlooper (Iowa), George “Molly” Malone (Nevada), Joseph McCarthy (Wisconsin), Karl Mundt (South Dakota), Andrew Schoeppel (Kansas), and Herman Welker (Idaho). Democrats Pat McCarran of Nevada and Edwin C. Johnson of Colorado also voted no.

  e Franklin Roosevelt made a fatal error in 1937 when he intervened in the Democratic caucus to force the election of Alben Barkley (Kentucky) as majority leader instead of Pat Harrison (Mississippi), the Senate’s sentimental choice. Many senators, especially those from the South, never forgave the president. Jean Edward Smith, FDR 391–92.

  f At the beginning of the twentieth century, naturalists and other environmentalists became concerned that migratory fowl were threatened with extinction because of unregulated hunting during their biannual flights. In 1913, Congress passed legislation to restrict such hunting, but the courts struck it down because there was no provision in the Constitution that gave Congress that authority. The federal government responded by negotiating the Migratory Bird Treaty of 1916 with Great Britain (on Canada’s behalf), which accomplished the same purpose. This was upheld by the Supreme Court in 1920 in the leading case of Missouri v. Holland, 252 U.S. 416. Said Justice Oliver Wendell Holmes, Jr., speaking for the court: “Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared so when made under the authority of the United States.”

  g The “George substitute” for the Bricker Amendment deleted the objectionable “which clause”—“A treaty shall become effective as domestic law … only through legislation which would be valid in the absence of treaty”—as well as the provision that would have subjected executive agreements to congressional review. The text of the George substitute is reprinted in note 60.

  h Eisenhower was indebted to Warren for his action at the Republican convention, as well as for campaigning vigorously for the ticket. At the convention, California had supported Ike’s forces and voted for the “Fair Play Amendment,” which led to the seating of the Eisenhower delegations from Georgia, Louisiana, and Texas. Then he had remained in the race as a favorite son, denying California’s seventy votes to Taft. Eisen
hower always denied he was politically indebted to Warren, but that was often Ike’s way. See 14 The Presidency 564–70, diary entry October 8, 1953.

  i According to legend, after he left office Eisenhower is supposed to have said that his great mistake as president was to appoint Earl Warren chief justice of the United States. The legend has acquired the status of revealed truth, and countless writers have cited it as if it were fact. The problem is that Eisenhower never said that. I have found no evidence that he ever made such a statement. To the contrary, there is abundant evidence that he did not. Herbert Brownell, who was also concerned about the allegation, conducted his own detailed investigation and reported that the story was apocryphal.

  Myths about presidents and chief justices are plentiful. An analogous canard pertains to Andrew Jackson and Chief Justice John Marshall. After Marshall rendered the decision of the court in the 1832 Cherokee case (Worcester v. Georgia, 31 U.S. 515), President Jackson is alleged to have said, “John Marshall has made his decision, now let him enforce it.” Again, the problem is that Jackson never said that. It was concocted by Horace Greeley in 1864 and put in Jackson’s mouth. (Jackson died in 1845.) The story of Eisenhower and Warren is equally bogus.

  See Herbert Brownell and John P. Burke, Advising Ike: The Memoirs of Attorney General Herbert Brownell 173 (Lawrence: University Press of Kansas, 1993); Jean Edward Smith, John Marshall: Definer of a Nation 518 (New York: Henry Holt, 1996); Horace Greeley, 1 The American Conflict: A History of the Great Rebellion in the United States of America, 1860–64 106 (Hartford, Conn.: O. D. Case, 1864).

  j Curiously, Warren’s early support for the internment of Japanese Americans on the Pacific Coast led southern senators such as Walter George and Richard Russell of Georgia to vigorously support his nomination for chief justice, assuming that Warren would naturally support racial segregation. As for the evacuation, Warren later confessed that he had been wrong in 1942. “I have since deeply regretted the removal order and my own testimony advocating it, because it was not in keeping with our American concept of freedom and the rights of citizens. Whenever I thought of the innocent little children who were torn from their home, school, friends, and congenial surroundings, I was conscious-stricken.” The Memoirs of Earl Warren 149 (Garden City, N.Y.: Doubleday, 1977).