by Jim Newton
The committee of the state bar that investigated Radin’s background took testimony from many people critical of Radin and from Radin himself. The questioning was probing but not vengeful. In his remarks, Radin denied that he was a Communist or that he had ever been affiliated with any Communist group; he acknowledged that he believed one of the Point Lobos defendants, Conner, was innocent, but said he had never done anything to publicize that view. The committee did not express a view of Radin’s suitability for office. It urged only that the Qualifications Commission closely inspect its investigative file. But then the board overseeing the state bar took the unusual step of voting on a resolution to spell out the criteria it considered relevant for the Qualifications Commission to consider when assessing a judicial nominee. The resolution suggested that no nominee should be confirmed if he had “given just ground to a substantial number of the public for believing that he is either a member of, or in sympathy with, subversive front party organizations” or if he had “given just cause for a substantial number of the public to believe that he is lacking in financial or intellectual integrity.” The board approved those principles by a vote of 10-2, with three members absent, and it stressed that a nominee should be rejected if the public held those opinions, even if the nominee had not done anything to justify those public views.16
Those resolutions were sent to the commission, and now there was accumulating evidence that the nomination was in trouble. And yet as the vote approached, Warren’s position still was in doubt. Newspapermen called in futile hopes of drawing Warren into a comment. Instead, Warren met out of public view with Knowland and Jesse Steinhart.17 When the commission convened on July 22, it ended the judicial prospects of Max Radin. “The commission considered all the facts, including a report of the board of governors of the State Bar association and has concluded that the appointment of Max Radin should not be confirmed,” Warren announced for the commission. 18 Warren’s comments were clipped. He declined to release copies of the evidence considered by the commission, and he would not even tell reporters what the vote had been or how he himself had voted. In fact, the vote had been 2-1 against the nomination. Warren’s was the deciding vote.
Warren’s handling of the Radin nomination was not his finest hour, and his actions suggest more than met the eye. As Warren had to know, the ethics charges against Radin were thin, and his other credentials were outstanding. Warren’s closest friends did not believe that Warren would have rejected him because of his politics. “It surely wasn’t Radin’s so-called liberal views or espousal of liberal causes,” Warren Olney said later. “Warren wouldn’t have turned him down for that.”19
After the commission’s rejection of Radin, Warren stonewalled all efforts to inquire about it. One group of liberal activists complained, arguing that the effect of the decision—as well as the secret manner in which it was reached—was to “not only undermine trust in the selective process provided by the Constitution, but to deprive the people of this state of the services of an outstanding and courageous public servant.”20 Warren was unmoved. The Radin vote stood.
Warren’s silence was telling. He did not like to admit error, and when he made a mistake, his response often took on a sullen stubbornness, his true feelings revealed only to a few close friends and indirectly even to them. A few months after the commission vote, Warren had lunch with U.C. Berkeley President Robert Gordon Sproul, a friend and supporter of long standing, a man Warren could trust. In language so blunt that Sproul filed it away, Warren chastised Sproul for defending Radin and for making him a member of the Berkeley law school faculty. It was, Sproul recorded, “a vigorous denunciation of Professor Radin, which very evidently contained a good deal of personal animus.” Intemperately, Warren even accused Sproul of “glorifying” Radin by denying publicly that he was a Communist.21
A hint of the source of Warren’s “personal animus” comes through in the Sproul memo, as Warren recounted that a friend had told him that Radin believed the Point Lobos defendants were “framed.” Radin had denied that publicly, but Warren appears not to have believed him. If so, that would suggest to Warren that Radin was a radical, for believing that the defendants were framed, and a liar, for denying it. And, most important, an enemy, for believing that Warren himself had done the framing.
With that, Warren hunkered down. He omitted all mention of the controversy in his memoirs—the only reference to the incident was added by editors after his death.22 Warren’s silence makes his actions unexplained, but the most logical inference is that Warren concluded that Radin was a radical and punished him for it. When others tried to disabuse Warren of that view, he refused and then blotted out the episode from his own history.
A seething Olson resolved to get even. And he did so by striking at Warren’s sore point, the Point Lobos prosecution. Warren already knew that Olson might attempt to reopen the Point Lobos case. The wife of George Alberts had written to Warren to say she was worried that Olson might agree to let her husband’s murderers stand for pardon or parole.23 Warren promptly replied, telling her that “nothing could be more unjust” than to free those killers. “I want you to know,” Warren added portentously, “that at the proper time I will make it definitely known to the public that I am unalterably opposed to either the parole or the pardon of these men. To release them at this time for the horrible crime they committed would simply be an invitation to others so inclined to deprive other wives of their husbands and children of their fathers.”24
In early 1940, the Advisory Pardon Board met to consider whether to recommend pardons for the three men, and Lieutenant Governor Ellis Patterson read a statement proclaiming his belief that “King, Ramsay and Conner were innocent and that justice had been miscarried.” Warren, already angry that the meeting room had been changed to allow more supporters of the defendants to be present, curtly replied, “There was no question as to the guilt of any of the three men.” Warren’s side prevailed on a 4-1 vote, with only Patterson recommending pardons.25
That settled the matter for the moment, but after Warren rejected the Radin nomination, Olson ventured into Point Lobos again. Without consulting Warren, Olson visited the Point Lobos defendants at San Quentin in October 1940, an act so sure to provoke Warren’s anger that it unquestionably was done with that in mind. At a news conference on October 15, the governor revealed his visit and told reporters that the men he’d met did not strike him as murderers. Olson said he was considering pardons or parole for the three men. (Wallace, also convicted of the murder, was not defended by labor, which resented his testimony against his codefendants, along with his admission of having actually participated in Alberts’s beating. California law also barred Olson from pardoning Wallace, because he had a prior conviction. In any event, Olson appears never to have contemplated freeing Wallace.) In a real sense, that announcement cost Culbert Olson his political future, as it roused Warren from private anger to public rage.
Warren called the governor’s comments “shocking” and responded, “Every good citizen of California should resent it. Everyone who disbelieves in assassination should protest it. Everyone who is loyal to our country in its present crisis should fight to prevent it.”26 Evidence of Warren’s suppressed anger erupted elsewhere in the same statement. “Heretofore, I have never said one word against the Governor or any of his official acts,” Warren said, implying that he had had plenty to say but had chosen not to, “but silence on my part in this matter would be cowardice.”
The testy exchange between Olson and Warren was extended in letters between the two men over the next several days, as they goaded each other and then shared their correspondence with the press. On the day after Warren’s statement was released, Olson wrote to the attorney general, promising to give the case a thorough review and snidely adding, “I hope that your own convictions regarding the guilt of these men in connection with the murder of Mr. Alberts are based upon material, tangible and convincing evidence and not upon the prejudice which seems to be exhibi
ted in this statement of yours.” Olson chastised Warren for pointing out that he had not been consulted prior to Olson’s remarks, and then closed by deploring “this matter of newspaper controversy between a Governor and an Attorney General.” “My decision,” Olson wrote, “will finally be reached regardless of whom it pleases.”27
As the combative tone of his letter makes clear, by this point Olson had concluded that Warren was an implacable rival, and that mollifying him was impossible and arguably counterproductive. Whether or not that was true at the moment, the public exchange of statements made it so from then on—a striking example of the self-fulfilling quality of their rivalry. Warren responded to Olson’s letter with one of his own, agreeing that conflict between top political leaders was distasteful but continuing it nonetheless. Olson’s letter, Warren said, “does not cause me to change one word of my statement to the effect that it was shocking to me and to everyone who believes in law enforcement.”28
Warren ended that letter with a pledge to discuss the matter with the governor despite their differences. Months went by without action by the governor. Then, on November 27, 1941, the state parole board, whose members were appointed by Olson, voted to release the three men.29 Warren excoriated Olson in language that precluded any reconciliation:
The murderers are free today, not because they are rehabilitated criminals but because they are politically powerful Communistic radicals. Their parole is the culmination of a sinister program of subversive politics, attempted bribery, terrorism and intimidation which has evidenced itself in so many ways during the past three years.30
Mooney was the first conflict between Olson and Warren, but they skirted a direct confrontation in that case. The Radin nomination was Warren’s most regrettable contribution to their fight, and Olson understandably hit back. The release of the Point Lobos defendants, however, was of a different type: It challenged Warren directly and personally, and it hinted that he lacked integrity. Once those defendants walked free, Olson could never again count on support from the state’s attorney general.
With their feud now a matter of public record, the two men turned to the state’s most pressing concern, its readiness for war. As they did, their antagonisms sharpened, and their genuine dislike for each other ripened.
By January 1941, Warren had already begun moving on his own to establish his place as the leader in preparing California for war. That month, he convened law-enforcement officers, and emerged with a plan to divide the state into nine regions, with systems in place for coordinating any needed response between police agencies. “One thing we have to avoid is the stampeding of highways for places of safety in the suburbs in case of bombing or sabotage in the San Francisco and Los Angeles areas,” Warren said at that conference.31 This type of planning came naturally to Warren: It placed him in a group of police and prosecutors, and it was nonpartisan in nature and dedicated to addressing a specific, urgent problem. Throughout 1940 and 1941, he pursued that effort through his group, named the State Civil Defense Council.
Viewed through Olson’s eyes, Warren’s moves looked like political base-building by a man bent on higher office. In those months, Warren told friends and family that he relished being attorney general and was inclined to run again for that office, but Olson did not know that and probably would not have believed it in any event. So he set about to check Warren’s efforts, treating Warren’s civil defense planning as pure politics. Olson created his own State Council of Defense, installed himself as chairman, and picked Richard Graves, an old friend of Warren’s, to serve as its executive director.
Had Graves been allowed to function, Warren probably would have acquiesced; he agreed to accept a position with the council, and through much of 1941 Warren and Graves met often. Minutes of their sessions show both men contributing and lending help to each other.32 But Graves felt hamstrung in the position, and Olson expended political capital in a labored effort to create a state guard—needed, he said, to protect California in the event that the National Guard troops were called up and sent into combat, leaving California defenseless. Olson had some legislative and press support for that idea, but as was often the case during his administration, he became embroiled in a self-defeating struggle with the legislature, in this case over the size and funding of the organization. The debates stretched on, and deals whittled away at the size and composition of the force. The eventual bill to reach Olson’s desk authorized a force of only 7,000 men and no infantry units; he signed it reluctantly.33 Yet again, Warren’s effort had the appearance of being professional—an impression reinforced by the Republican media—while Olson came off as compromising and ineffective.
While Olson and Warren jostled for position, Warren was moving elsewhere to extend his reach. One of those moves, in the spring of 1941, catapulted him into new and influential company. Founded in 1872 by journalists at the San Francisco Examiner , the Bohemian Club was well established in fact and lore. Herbert Hoover was a member, as was Robert Sproul, Warren’s friend and schoolmate from U.C. Berkeley. Its other two thousand or so members included much of the business and political elite of California and the nation. It was staid, solid, moneyed, powerful. And its annual summer camp near the Russian River was already—and soon would become even more—a legend, a conglomeration of the nation’s powerful men, hidden in a redwood grove from public view and engaged in the chummy warmth of powerful men at ease. What’s more, the Bohemian Club with its Grove appealed to other, less conspicuous but more deeply tended aspects of Warren’s personality. It cultivated artists and encouraged song and revelry—indeed, artists were offered special memberships, and they helped enliven its annual summer retreats. As a politician, Earl Warren naturally was drawn to the contacts that the club supplied, but he was a poet of a sort, too, and the club spoke to him in that way as well. For Warren, the Bohemian represented an apex of his long cultivation of clubs. “I have long had a desire to be a member,” he wrote in 1941.34
Even though he was the attorney general of California, admittance was not guaranteed. He was required to produce sponsors and demonstrate a personal relationship with at least five members of the applicant committee. That he did. After due consideration, Warren was admitted to the club and, at its Grove, made a member of its so-called Isle of Aves, one of the Grove’s encampments. From that day forward, Warren would rarely miss spending a few days each summer at the Grove, to escape the heat of Sacramento. There he was known in the aviary lingo of the Grove as “Snow Owl Warren” (campmates included “Fledgling Fenston,” “Bald Eagle Hall,” “Grouse Ganter,” etc.). In the shade of the Grove’s famous redwoods, and with a breeze blowing off the ocean and the nearby river, Warren would relax in the company of California’s economic and political and artistic leadership.
Culbert Olson was not Bohemian Club material. So as Warren and Olson were taking the measure of each other in the fall of 1941, they were listening to the advice of two distinctly different groups of friends. That Olson would seek reelection was assumed and urged by his advisers. Meanwhile, William Knowland, after canvassing politicians throughout the state, wrote to Warren in September 1941 to report “unanimity of opinion that you would be by far the strongest potential candidate, and the only one in or out of the Republican party who could defeat Olson.” 35 Still, Warren continued to resist, and appears to have been genuinely conflicted. As 1941 drew nearer to a close, Warren remained undecided, torn between his frustration with the governor and his natural caution. He conferred and listened, searching for some definitive sign that would tip him decisively toward seeking reelection or taking on the governor. War provided it.
Chapter 8
“THE BEST PEOPLE OF CALIFORNIA”
Loyalty is a matter of the heart and mind, not of race, creed or color.
JUSTICE WILLIAM DOUGLAS, FOR THE COURT, DECEMBER 18, 19441
[H]ardships are part of war, and war is an aggregation of hardships.
JUSTICE HUGO BLACK, FOR THE COURT, DECEMBER 18, 19442
> AFTER THE DIFFICULT WEEKS of late 1941, Earl and Nina Warren looked forward to a languid Sunday on December 7. Earl was home for the weekend, and Oakland was stirring with Christmas. The papers carried news of war in Europe and preparations for war in the Pacific—as well as continued turmoil regarding the King, Ramsay, and Conner pardons, and updates on a municipal strike that loomed for Monday in Berkeley. But there was shopping to be done, trees to buy and decorate. At 88 Vernon, the basement was bare—but not for long. On Christmas Eve, after the children had gone to bed, Earl and Nina would set up a grove of little trees, each matching the height of a child. Beneath that child’s tree would sit his or her pile of presents. The children would wake and run to their trees.
With the season came festivities. That night of the sixth, the Claremont Country Club, where the Warrens were members of long standing, was hosting a Christmas gala to benefit West Oakland children. The Warrens passed, preferring to spend the night at home with theirs. All were home that holiday—except for Jim, a student at Harvard Business School, where he was enduring but unhappy, pining for his girlfriend, Maggie, soon to be his wife.3 The rest of the Warren youngsters, from thirteen-year-old Virginia to six-year-old Robert, were in the Warren nest on the morning of December 7. Earl Warren, Jr., always an early riser, puttered around the yard with the radio on. Bobby was in the kitchen with his mother, watching her cook and licking the spoon.4 As they worked and chatted in the kitchen, the radio interrupted with the news from Hawaii. Within minutes, the phone began to ring.