by Jim Newton
Once allowed to take his official place among his new colleagues, Langer, whose nickname “Wild Bill” was in his case an understatement, built an agenda shaped largely by three factors: his radical isolationism, his genuine desire to advance the interests of North Dakotans, and his near physical unwillingness to accept no for an answer.
Langer opposed the formation of the United Nations, the military draft, the Marshall Plan, and every foreign aid bill that was presented to him. He opposed foreign entanglements of all types, but reserved a special hatred for Britain. On the final day of 1951, as Winston Churchill was approaching the United States by ocean liner, Langer cabled the vicar of the Old North Church in Boston. Langer asked him to hang two lanterns in the belfry.9 Such antics made Langer easy to ridicule—he bore some resemblance to California’s Jack Tenney—but he was nothing if not determined, and through his nearly two decades in the United States Senate, Langer solidified his North Dakota base with his intense commitment to delivering services and appointments to his constituents. With the seating of the 83rd Congress, Langer’s seniority landed him atop the Judiciary Committee, and he happily set out to use that position, as he had his place on the Postal Committee, to force the administration to give North Dakotans positions of influence.
In 1950, Langer had announced his intention to block any nominee to “head any office” unless that person came from North Dakota.10 The following year, Langer proved he was not kidding when he refused to back Eisenhower’s pick for ambassador to Switzerland—no North Dakotan, Langer announced, had ever been named an ambassador. By 1954, most of Washington appeared to have forgotten Langer’s pledge or underestimated his grit. But he was steadfast, and thus it was with predictable dismay that Langer received word that a Californian, not a North Dakotan, would occupy the next important judicial opening. Moreover, Warren was not Langer’s type. Warren had demonstrated considerable fondness for international engagements—he was a long-standing supporter of the United Nations and comfortable within Eisenhower’s internationalist wing of the Republican Party. Gallingly, from Langer’s perspective, Warren had even recently returned from Britain, where he had acted as one of Eisenhower’s emissaries to the coronation of Queen Elizabeth. And in general, Warren was philosophically and temperamentally something of Langer’s opposite: Warren the stable political moderate, in contrast to Langer the ping-pongy individualist.
Through the fall of 1953, while Warren had been settling in at the Court, some of his detractors had written to the Judiciary Committee to express their disapproval of his appointment.11 Langer husbanded them carefully, and by early 1954, he had in hand a stack of material regarding the nominee. On February 2, the senator convened a public hearing of the committee, which heard from witnesses for and against Warren’s nomination, but that session was overshadowed by a closed-door meeting of the panel. It was there, Langer announced later, that he presented his colleagues with ninety-seven “protests” against Warren’s confirmation. The protests, Langer said, included numerous charges against the nominee and required investigation by the committee and by the FBI. But Langer used those protests tactically, not forthrightly. He initially promised them to the FBI so that agents could investigate, then withdrew that offer; similarly, he showed the stack of letters to his colleagues but would not let them read them.12 Leaving the meeting, Langer explained to reporters that a vote on Warren’s nomination had to be delayed because “too many charges” had been leveled against him to be evaluated in a single session.13
That was where the matter stood, as far as the public knew, in early February 1954. In fact, as the long-delayed opening of the Judiciary Committee files revealed fifty years later, the letters were a jumble of unsupported allegations and expressions of ideological disagreement. The vast majority included no charges at all. Any FBI agent or committee member would have recognized the irrelevance of those communications instantly—had Langer allowed them to see the correspondence. Typical was the note from Claudia Babcoke of Los Angeles: “As one lone voter, I protest the appointment of Earl Warren, former Governor of California, as Chief Justice. Why can’t Senator Joseph McCarthy get something as important as that?”14 Or Mr. and Mrs. Fulton of Glendale, California, who warned the committee in a single-page, handwritten note that Warren “leaned too far to the left.”15 Or Michael Gorke of Little Neck, New York, who sent a postcard stating simply, “Warren’s appointment is a disgrace.”16
Those letters—and dozens more in the committee files—contained no allegations to investigate, no charges of any kind. Of the 122 letters received by the committee during the weeks leading up to the nomination and preserved in its files, just fourteen included any allegation regarding Warren.17 And most of those “charges” were ludicrous on their face. One former inmate charged that Warren, as governor, had used his “despotic power” to lock him away for an unfair sentence;18 another promised “unquestioned evidence” that Warren had been an officer of the Ku Klux Klan while serving as district attorney in Alameda. 19
One letter was different. It did in fact contain allegations of wrongdoing by Warren. Specifically, it detailed ten charges arising from Warren’s time as attorney general and governor. It alleged: (1) As attorney general, Warren practiced and encouraged discriminatory prosecution against migrants during the Dust Bowl years; (2) Warren was under the domination of liquor lobbyist Artie Samish; (3) Warren, as “chief magistrate” of California, failed to rein Samish in, encouraging his illegal lobbying; (4) Warren had allowed organized crime to flourish in California; (5) unemployment trust fund money was missing, lost during his administration; (6) California administrative procedures were misused for the purpose of “taking over of a corporate state,” a development the writer compared to Mussolini’s tactics in Italy; (7) Warren permitted gambling at California racetracks; (8) Warren encroached on the legislature’s authority; (9) Warren ignored allegations of corruption by California officeholders; and finally, (10) Warren prosecuted or investigated allegations of corruption only when they involved people in disfavor with his administration.20
Those at least assumed the form of charges, as Langer had told the press. But even a cursory examination would have exposed their falsity without delay. Warren was not even attorney general during the Dust Bowl. Far from encouraging racetrack gambling, he actually had shut it down. His efforts against organized crime had been among the most aggressive in the nation, and had been publicly recognized as such. The two charges relating to Artie Samish were undermined by the fact that Warren had criticized Samish and supported stronger legislation to curb lobbying—legislation specifically inspired by Samish’s record. Although Samish had been prosecuted federally, not by the state, it was Warren’s old friend and ally, Warren Olney, who had led that prosecution, further evidence of Warren’s distaste for the flamboyant liquor lobbyist. Indeed, Samish himself blamed Warren for much of his trouble.
Two more allegations in the letter, those relating to public corruption, were so vague that investigating them would in all likelihood have been impossible, and they were contradicted by the known fact that Warren had built much of his reputation in California on his anticorruption work as a prosecutor. That left the two administrative charges—that unemployment money had been misspent and that administrative procedures had been misapplied. Neither was directed at Warren personally, and thus they were allegations more of neglect than of misconduct. Still, the first, if true, might have merited committee attention; the second, with its allusion to Mussolini, seemed to say more about the alleger than it did about the accused.
So ridiculous were some of the charges—and so shaky many of the accusers—that Olney believed those making the allegations were fronts for Warren’s California enemies, notably the still-angry Bill Keck, left over from the gasoline sales tax debate. Keck, Olney knew, “hated Earl Warren like poison.”21 Warren accepted that theory as well.22
Keck may well have been behind the effort—he had motive, and it was not beneath him. Nominally at least, ho
wever, Warren’s accuser was a man named Burr McCloskey, who put his charges in a letter to the committee on the letterhead of a Chicago-based group called the American Rally. McCloskey was an odd figure, perennially on the fringes of Midwestern politics. A series of alliances and memberships had led him to found the American Rally, a self-described nonpartisan organization dedicated to “promoting the principles of peace, abundance and the Constitution.”23 A young man drawn to grandiosity rather than principle, thirty-four years old in 1954, McCloskey had flirted with left- and right-wing fringe politics, first attracting attention as a high school student in Akron, where he organized the United Students Alliance to challenge his school administration.24 He attended the University of Akron from 1937 to 1938, then dabbled in various shades of left-wing politics before joining the Army on November 12, 1943;25 he was discharged in 1945. On Christmas Eve of 1948, a month after divorcing his first wife, he married again, this time to a woman named Brunhilde. McCloskey continued to work as an organizer, affiliating with a group known as the United Labor Party, which advocated the formation of a national union. That party in turn gave birth to the American Rally. But while much of McCloskey’s political résumé suggests a somewhat aimless leftist, he also considered himself a “farmer’s rights fighter,”26 he countenanced Senator Joseph McCarthy, and he was critical of the Senate for failing to rally behind McCarthy’s anti-Communist purge.27 McCloskey, taken with his own importance, urged the FBI to investigate him in order to discover his true political beliefs. The FBI declined, though agents did conduct an interview with him.28 Other members of American Rally, meanwhile, were alarmed by McCloskey’s embrace of right-wing causes and candidates; some feared he was stalking for fascist elements.29 For a man thus more drawn to the spectacle of politics than to its content, the nomination of a Supreme Court justice was a tempting opportunity to ascend the national platform that had eluded McCloskey his entire restless life. Recognizing his moment, he grabbed it. It was, one observer at the time noted, the “crowning achievement of his career.”30
And yet even as he grabbed a sliver of the national spotlight, McCloskey took care to insulate himself against reprisal. In his letter, for instance, he noted that he was serving merely as a conduit, relaying reports he had received from the American Rally’s California representative, a similarly shady character named Roderick Wilson. Invited to appear before the committee, McCloskey showed up late and instead forwarded his allegations in writing. He was gone from Washington by the time they were received.
All of that smelled suspicious, but the true deceit belonged to Senator Langer. Without evaluating the substance of the charges against Warren—and while still clinging to exclusive control over the other letters received by the committee—Langer had the committee’s lawyer produce a charge sheet summarizing the allegations. The lawyer struck a few but included most of the McCloskey/Wilson allegations, along with others plucked from the mail. The additions included charges that Warren, while the Alameda DA, was “many times . . . so drunk . . . that his assistants had to help him stand up in court,” that as governor he uniformly supported the “Marxist . . . revolutionary line,” and that he knowingly appointed and promoted dishonest judges.31 The drunkenness charge was culled from a single note. It read, in its entirety:
Dear Sir,
Yes, it was well known around Oakland when Warren was the DA, he was often so damned drunk his assistants had to hold him up in the courtroom! Chief Justice? Wow. 32
It was signed: “News Reader” and included no return address. From that, counsel and chairman of the Senate Judiciary Committee listed Warren’s courtroom drunkenness as a charge worthy of investigation by the United States Senate. While still refusing to share the letters, Langer asked the Justice Department to direct the FBI to investigate Warren’s background. Deputy Attorney General William Rogers pointed out that no chief justice had ever undergone such an inquiry—the Constitution’s doctrine of separation of powers cast some doubt as to whether it was appropriate for the legislative branch to direct the executive branch to investigate a sitting member of the judicial branch.33 When it became clear, however, that Langer would not proceed with the nomination unless he got his investigation, Rogers backed down. On February 9, Rogers told the FBI that “we have no other choice but to make a quick investigation,” but he suggested that the Bureau keep it short—the issue, Rogers insisted, was in fulfilling the principle of requiring an FBI report rather than submit a genuinely thorough review.34 After ensuring that Rogers understood that the Bureau would submit only a “limited” report, Hoover dispatched agents to check Warren’s background. The same week, one visited an old colleague of Warren’s in Sacramento, who told Warren of his visit and assured him that nothing seemed amiss. The agent, Warren’s friend wrote, “indicated it was pretty much of a formality.”35
Hoover had been doing favors for Warren for more than a decade, and the FBI background check reflected Hoover’s protectiveness of his charge. It amounted to little more than a collection of testimonials to Warren’s abilities and character. It cited two picayune associations between Warren and Communism—a written greeting that Warren had sent to a pageant commemorating the third anniversary of Russia’s war against Nazi Germany (America’s war, too, after all), and his attendance at a 1945 banquet in San Francisco hosted by the American-Russian Institute, later identified as a Communist front organization by the attorney general.36 There were a few Warren critics quoted, though even some of those said they supported the nomination. The bulk of the report was devoted to synopses of interviews with Warren backers, who praised him lavishly, describing him as of “good moral character,” as the “best-informed man in the three branches of government,” “superb,” “completely devoid of bias,” and “one hundred percent in every respect.” 37
The report was transmitted to the Justice Department and shared with Langer on February 16. That same day, an FBI agent assigned to the Judiciary Committee proceedings made one last attempt to convince Langer to share with him the accusations that had been filed with the committee. Langer had been dodging the Bureau for days, publicly insisting that the accusations merited review but refusing to let them be reviewed, at least by the FBI. Now, on February 16, Langer admitted he had nothing. “Langer stated he had gone over the complaints and that he had concluded that they were of no value and, therefore, he would not turn them over for investigation.”38
That, then, seemed likely to end the matter. Langer admitted he had nothing incriminating on Warren, and the FBI turned up nothing, either. But three days later—three days after acknowledging that his files contained nothing damaging against Warren—Langer called his colleagues into session. As the hearing opened, Langer directed the counsel to read the charges against Warren (they had been edited yet again, and as presented no longer included the allegations regarding drunkenness; the balance of the allegations were included). Warren was accused of permitting organized crime in California, of collaborating with Artie Samish (that was news to Samish), of favoring the “Marxist line,” of running an escrow racket, and of mishandling government funds, among other things. Langer knew those charges were baseless—he had admitted it to the FBI three days earlier. But the public did not know that, would not know it for more than fifty years. William Knowland, Warren’s old friend and then the majority leader of the Senate, was in the audience when Langer had the charges read in an open hearing room, with press and public present. “I would not submit a town marshal to this type of anonymous charge,” Knowland complained.39
After the session, he added, “The procedure followed today in the case of Chief Justice Warren is the most shocking event I have observed in my eight years in the Senate.”40 Another Californian, Vice President Richard Nixon, echoed Knowland’s anger and pivoted in Nixonian fashion. “Rather than wasting its time investigating the charges [against Warren],” Nixon suggested that it “could well spend some time investigating those who made them.”41 Eisenhower, vacationing in Palm Springs, releas
ed a statement standing by Warren, whom he described as “one of the finest public servants this country has produced.”42
Across the country, editorial boards rose up with unusual unanimity. Outrage poured from the Memphis Press-Scimitar and the Oregon Journal, the Long Beach Press-Telegram and the Tampa Sunday Tribune, the New York Times and the Santa Monica Evening Outlook. The Outlook’s editorial nicely captured the national revulsion: “The North Dakota Senator, who had some reputation as a screwball before, has now climbed far out on the special limb hitherto occupied by the nastiest little viper in the Senate and has told Senator Wayne Morse to move over.”43
Curiously, Langer’s attention to the seedy charges against Warren distracted from three areas where Warren’s record might have provided legitimate grist for senators considering his worthiness for the Court. One letter writer had argued that Warren’s support for the internment of the Japanese should count against his ascending to a tribunal charged with the protection of civil liberties, a worthwhile point but one that Langer chose to ignore altogether.44 Several others questioned Warren’s actions during the loyalty oath debate in California. There, the risk to Warren was less substantive but more political: Eisenhower and Warren had different views on the value of oaths, so Warren’s contrary position in the California debate could have surfaced a policy difference between the president and his nominee. Again, Langer’s attention was focused elsewhere.45 Finally, a third and potentially fruitful avenue for inquiry was Warren’s continued membership in the Native Sons of the Golden West. Nearly seventeen years earlier, Hugo Black’s ascension to the Court had been disturbed by the revelations of his past Ku Klux Klan membership. The Native Sons were not the Klan, but they too had espoused an openly racist agenda, in their case with respect to California land ownership. And whereas Black had resigned his membership in the Klan, Warren remained a dues-paying Native Son. But Langer was more offended by internationalism than racism. There is no evidence that he ever considered probing Warren’s relationship to the Native Sons.