by Jim Newton
Langer’s actions could have been explained by eccentricity or bad judgment were it not for two facts that he deliberately concealed from the committee and the public. Langer knew when he aired the charges against Warren that they were without merit. That was proof of bad faith. Even more telling was a subtler act of deceit. Through both the public and closed sessions of the committee, Langer presented himself as a disinterested fact finder. He professed to be surprised, even offended, by the allegations but duty-bound to investigate them. But Langer was hiding the truth. After the blowup on February 20, Langer’s subcommittee met in secret to evaluate the allegations against Warren that Langer had made public the day before. There Olney, now in his role as associate attorney general, presented the committee with the Justice Department’s research on the chief accusers, Wilson and McCloskey. As Olney laid out the facts of McCloskey’s history, Langer sat quietly, interjecting a question or two but volunteering nothing.
What Langer did not say was that he had known McCloskey at least since 1938—perhaps earlier—that he had given him advice throughout his career, that McCloskey considered the senator his political idol, and that the two had been working together on a variety of fronts in the months leading up to the Warren hearings. Nearly a year earlier, McCloskey, addressing the senator as “Dear Bill,” urged Langer to weigh in on a raging farm battle outside Detroit. The letter was friendly and familiar, closing with “I thank you from the bottom of my heart for all past favors, and remain, Very sincerely yours.”46 Responding, Langer addressed “Dear Burr” and promised that he would make a staff member from the Judiciary Committee available to meet with McCloskey and review the dispute.47 Their correspondence continued through 1953 and early 1954, as the Warren nomination came before Langer’s committee. In November, writing on the letterhead of the American Rally, McCloskey updated Langer on the farm situation, invited him to address two of the organization’s state conventions, and for the first time raised the idea of contesting Warren’s appointment (Warren had taken his seat the previous month). In that note, McCloskey detailed for Langer the American Rally’s efforts to place a candidate on the California ballot in the 1952 elections. “In this struggle, I became well acquainted with the corruption of both machines and the culpable relationship of then-Governor Earl Warren,” McCloskey wrote. “I understand that your Senate Committee will shortly conduct hearings on the fitness of this Earl Warren to be approved as Chief Justice of the U.S. Supreme Court. I am here petitioning you for time as a witness before your Committee in order to protest the Warren appointment.”48
And yet when McCloskey and American Rally were attacked by the Justice Department representatives in the closed session of the Judiciary Committee, Langer feigned ignorance. “What is the American Rally?” he asked.49
Langer denied knowledge for a reason. The transcripts do not supply it because no one in the room during those hearings knew enough to challenge Langer. But context provides what the text cannot. Ignorance of McCloskey suited Langer’s purposes. He did not want to appear vindictive toward the chief justice, whose confirmation he knew to be likely. All Langer wanted was to smear Warren, to discredit him and the Eisenhower administration. To denigrate Warren without openly opposing him, it benefited Langer to strike a pose of neutrality and to have McCloskey bear the burden of leveling the specific charges. Langer even went further than that, unctuously proclaiming during a closed session of the committee that he, in fact, supported Warren—“He is one of the best friends I have,” the senator said, undoubtedly to the disbelief of his colleagues. 50 It was a smear, not the first and certainly not the last leveled against a judicial nominee, but distinct in its mendacity and deviousness.51
Warren himself gave the hearings a wide berth, no doubt concluding that his presence would only lend dignity to a proceeding that was collapsing of its own weight. He declined, for instance, an invitation to appear before the committee and defend himself. That is not to say, however, that he was not aware of or troubled by the attacks on him. Olney remembered Warren being “irked” by the proceedings, by the parade of false charges and dubious witnesses and by the committee’s retreat into closed sessions, where Warren was left to imagine what they were hearing.52
Even after the tumultuous public meeting of February 19 and the contentious private session on February 20, Langer was not quite willing to let Warren go. The following week, he convened the committee, again in secret, to hear from Roderick J. Wilson, the California representative of the American Rally whose allegations McCloskey had forwarded with Langer’s encouragement. Wilson was a private investigator of dubious credentials, wanted for perjury and apparently lying low to avoid a warrant for his arrest. More alarming to the committee, he was a rambling, incoherent witness. His allegations against Warren turned out to be drawn mostly from his reading. His charge that Warren had abetted organized crime, for instance, was based on the findings of the California Crime Commission. That commission was created by Warren and chaired by Olney, who not only could refute the charges but also happened to be in the room as Wilson testified and interjected to correct the witness. Wilson then turned to question Olney, infuriating the dignified Olney and his colleague, Deputy Attorney General Rogers. “I do not think we should submit to cross-examination by this witness,” Rogers finally said, interrupting, his patience at an end. “I resent it very much.”53
Bad enough for senators to have been dragged through Langer’s hoax; now they were party to a circus, and they were done. Senator Arthur Watkins of Utah dismissed Wilson’s testimony as “fourth-rate hearsay,” and another member then called the question, moving that the committee favorably report Warren’s nomination to the Senate. The vote was 12-3, with Senators James Eastland and Olin Johnston voting against the nomination on substance—both Southern Senators were concerned about Warren’s views on civil rights—and Senator Harley Kilgore bizarrely joining them to send a message to the newspaper editors and columnists who had expressed dismay over the committee’s handling of the appointment. If Walter Lippmann would agree to apologize, Kilgore said, he would vote for Warren. 54 Exasperated, his colleagues recorded the final vote. The event’s laughable coda: Langer voted in Warren’s favor.
Even with the recently released materials and the light they shed on the story of Warren’s nomination, they leave one question pregnantly unresolved. Why? Why would Langer go to such lengths to denigrate a sitting chief justice named by a popular president of his own party, especially when he had to know there was almost no chance that he would succeed? Part of the answer to that question rests with Langer himself, whose perverse sense of political theater was gratified by the Warren fight. Reston was the first to uncover Langer’s old pledges to block any non-North Dakotans from office, and that observation, widely repeated in subsequent coverage, provided the most complete rationale in its day. And as discussed, Langer had plenty of reason not to like Warren: The Californian was too moderate, too internationalist, and too accommodating on civil rights, among other things, for Wild Bill’s taste.
By themselves, however, none of those facts seems enough to warrant the scathing and unfounded public attack that Langer encouraged. A more specific possibility is suggested by a single document in the confirmation files and by later events that reunited Langer and McCloskey. As Langer listened to Wilson’s pained testimony, with its loopy conspiracy theories and unconnected dots, the senator doodled on a pad. He made line drawings of masks and swirly figures, some resembling the letter S or an infinity sign. Several times, he sketched the number 5. And then, near the bottom of the page, he wrote “1955” and underlined it elaborately. Just above it, in bold writing, obviously traced again and again, was another number: “ ’56.”55
Was Langer looking ahead to the next elections as he contemplated Warren’s fate? If so, he was either scheming or prophesying. In 1956, Langer, nationally renowned in part for his stand against the controversial Earl Warren, would be urged to run for president of the United States. The American R
ally, in its newspaper (“The Newspaper That Believes in the American People”), championed “Fighting Bill Langer” and titled its series on the senator “The Making of a President.”56 Later that year, the newly formed Pioneer Party, affiliated with the American Rally, convened delegates from sixteen states and drafted Langer as its nominee. Although Langer declined the third-party nomination—accepting it would have cost him his seniority in the Senate—the party picked him anyway. For his running mate, its nominee for vice president of the United States, the Pioneer Party chose Burr McCloskey.
Langer emerged from the hearings better known, if not better liked. Warren came through them having felt the sting of a legislative power not to legislate but to defame. And having felt that lash against himself, he did not need to consider the effect of legislative inquiry in the abstract. Two days after the public airing of the laundry list of allegations against Warren, a Philadelphia man named Burton Crane wrote to the chief justice to express his sympathy and outrage. Warren, he suggested, might well learn something from the experience he was undergoing:
Too many timid men have kept silent in the face of roving prosecutions sanctioned by the Senate. . . . With both your reputation and the high office you hold, I submit that it is your duty as a citizen of this country to add your voice in protest against the marauding bands ambushing our freedoms. Now that you have been shot at, you know what it is like.57
The message was received.
Chapter 17
ALL MEN ARE CREATED EQUAL 1
The humanitarian idealism of the Declaration has always echoed as a battle-cry in the hearts of those who dream of an America dedicated to democratic ends. It cannot be long ignored or repudiated, for sooner or later it returns to plague the council of practical politics. It is constantly breaking out in fresh revolt.
VERNON L. PARRINGTON 2
AMERICA’S DECLARATION OF INDEPENDENCE proclaims that all men are created equal—endowed by the same Creator, they are equally entitled to unalienable rights, among them life, liberty, and the pursuit of happiness. Government, the drafters of that profound and poetic document concluded, exists not to bestow but merely to secure the God-given rights of men. So elemental was that charge that the Declaration reserved for the people the right to destroy a government that failed to protect its people’s rights. America’s Constitution, struck just eleven years later, makes no such promises or threats. The Constitution was a triumph of ingenuity and a model of compromise, but its rights were more stingily proffered, and it brought into being a nation that embraced slavery, not to mention the disenfranchisement of women and most landless workers. The nation was the Constitution’s victory; slavery was its curse. The trade dehumanized its victims and debased its practitioners while warping both the economy and the morality of the American South. Slavery recalculated values, aroused furies, and undermined America’s place at the head of human liberty. And most perniciously, because the Constitution accepted slavery in order to make a union, it stood between America and its own Declaration. As late as the mid-twentieth century, the Declaration was best understood as a grand but unfulfilled pledge.
It was that chasm—between the ideals that gave birth to the nation and the rules that it chose to govern itself—that was responsible for America’s defining trauma, its soul-wrenching debate over the place of blacks in American society. As presented to the United States Supreme Court in the early 1950s, the broad question for the justices, one burdened with nearly two centuries of neglect, was this: Were black men and women—whose ancestors were brought to this country in bondage, then freed into a world of legal oppression—to be allowed the full blessings of liberty promised by the Declaration, or were they to remain subjugated by law as well as custom?
While that was the question the justices knew they faced, the cases upon which they were to write the answer were, as cases always are, more narrowly cast. In this instance, the specific issue—presented to the Court prior to Warren’s arrival but there still for him to decide—was whether Negro boys and girls were constitutionally entitled to attend the same public schools as white boys and girls. Much of the nation’s history and of the Court’s jurisprudence suggested they were not.
To understand why not, one must briefly step back to the end of the Civil War and the reunification of the nation under the postwar constitutional amendments, the Thirteenth, Fourteenth, and Fifteenth Amendments to the original Constitution. Those amendments, respectively, freed the slaves, promised the full rights of citizenship and equal protection of the laws to those who had been freed, and prohibited withholding of the right to vote on account of “race, color or previous condition of servitude.” Of the three, the Fourteenth was the amendment with the most far-reaching implications, as it extended to all American citizens the “privileges and immunities” of their citizenship, regardless of the state in which they lived. Moreover, it promised those citizens due process of law against any attempt to deny them life, liberty, or property and guaranteed, for the first time, the “equal protection of the laws.”
The language of the Fourteenth Amendment would seem to speak for itself, but it was written in an era of casual discrimination. Indeed, the same Congress that passed the amendment also continued to fund segregated schools in Washington, D.C. As applied by the Supreme Court in the late nineteenth century, the Fourteenth Amendment thus came to stand for protections far different from those suggested by its plain language. Through a series of rulings after the amendment’s adoption in 1868, the Court used it to protect contracts and corporations but withheld its guarantees from those whom the amendment was pointedly intended to help, Negro Americans. As the century drew to a close, the Court read into the amendment segregation itself, a finding it explicated in one of the most intellectually dishonest rulings in its history, Plessy v. Ferguson.3
Homer Plessy was a man seven-eighths and by all appearances white. Even that thin rivulet of Negro blood in him was too much for Louisiana, which required him and all other Negroes to ride in black-only railroad cars. Louisiana’s law was plain discrimination, but state authorities contended it did not violate the Fourteenth Amendment’s guarantee of equal protection, because those cars were “equal” to the cars set aside for whites. Plessy challenged that rule, sat in the car reserved for whites, and was arrested. He was convicted of violating Louisiana’s law and appealed his conviction all the way to the United States Supreme Court, which took the case in 1896. The purpose of the Fourteenth Amendment, the justices conceded, “was undoubtedly to enforce the absolute equality of the two races before the law.” But, they added, “in the nature of things, it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either.”4
As Richard Kluger, in his defining account of the Court and desegregation, aptly points out, one might well ask of the Plessy authors: Why not? Why couldn’t the Fourteenth Amendment have been intended to abolish distinctions based upon color when that is precisely what its language purports to do? And what, by the way, was meant by “in the nature of things”? Most appallingly, the Court had the audacity to blame Negroes for assuming that the establishment of separate facilities was intended to demean them. “The underlying fallacy of the plaintiff’s argument,” the Court ruled, lay in “the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”5 There are few instances in American history where men of such esteem have joined in a decision that was more hardhearted or more plainly false.
The one justice who disagreed, Justice John Marshall Harlan, denounced the opinion’s deprivation of liberty and equality. Harlan did not deny his own pride of race—his opinion specifically trumpets his belief that whites dominate society and predicts they will continue to—but for him and hi
m alone on his Court, the Constitution was not the place to write one’s prejudices:
The white race deems itself to be the dominant race in this country.And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty. But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.6
Notwithstanding that, the Court’s ruling in Plessy became the law. An ebullient South embraced it and used it to construct Jim Crow, the separate society for American blacks. Blessed and encouraged by the Court, that separation had become all but complete by mid-century. Theaters, parks, beaches, courtrooms, drinking fountains, public bathrooms, trains and buses, restaurants, and schools all were separated by race.
Against that tide rowed a few lonely but determined advocates, chief among them Charles Houston and Thurgood Marshall. Houston was an austere man driven by an abiding purpose, the construction of a civil rights strike force under the banner of Howard University, whose law school he transformed and whose students he inspired. Marshall was cut from different cloth, but stood out among those whom Houston had tutored. Witty and earthy, energetic and stubborn, Marshall grew up in a middle-class black Baltimore neighborhood, raised by tough parents and stern teachers who attempted to squeeze scholarship out of the mischievous boy. Luckily for Marshall—and the nation—his elementary school principal would punish his misbehavior by making him read and memorize sections of the Constitution. He was in trouble so frequently, Marshall would recall later, “before I left that school . . . I knew the whole thing by heart.”7 He studied first to be a dentist, but switched to the law when he clashed with a biology professor. Marshall’s law school options were limited, however: the University of Maryland law school in the early 1930s did not admit blacks. Accepted instead at Howard, Marshall studied under Houston and then joined him in one of the defining crusades of American political history: the painstaking, brave quest to roll away the nation’s segregation laws.