Justice for All

by Jim Newton

  The other members fell much more quickly into line (Ford would later tell Arlen Specter that he, like his then more famous colleagues, resisted; in fact, the congressman and future president accepted his place without protest).31 They were in some senses a homogeneous group: All seven members were men; all were white; all were lawyers. And they were all, indisputably, among the most admired members of America’s political leadership. But they also represented a diversity of backgrounds and views. They came from different parties (five Republicans and two Democrats) and different parts of the country—none, by design, from Texas, but Cooper, Russell, and Boggs all came from the South or border states. Most important, they arrived with different conceptions of what had happened in Dallas. Warren believed the assassination was motivated by hatred and bigotry; Russell was inclined to see Castro and Cuba as the agents of the deed. McCloy, too, believed others were at work. They were not, individually or as a group, predisposed to believe that Oswald acted alone. Nor were they inclined to agree out of friendship or common worldview. When others wondered much later about whether the Commission collaborated on a cover-up, Warren snorted in reply, “As if Gerry Ford and I could conspire on anything!”32

  At ten A.M. on December 5, Warren opened their first session. “Gentlemen,” he began:

  This is a very sad and solemn duty that we are undertaking, and I am sure that there is not one of us but what would rather be doing almost anything else that he can think of than to be on a commission of this kind. But it is a tremendously important one. The President, I’m sure, is right in trying to make sure that the public will be given all of the facts of this sordid situation, so far as it is humanly possible to do it, and I feel honored that he would think that I, along with the rest of you, are capable of doing such a job, and

  I enter upon it with great feeling of both inadequacy and humility because the very thought of reviewing these details day by day is really sickening to me.33

  With that, the Warren Commission was at work. Johnson had encouraged the Commission to take a small view of itself, and Warren accepted that. He initially conceived the Commission’s work as limited to reviewing the work of the FBI, analyzing that work, and reporting its findings. Given that narrow task, the Commission would not, in Warren’s view, need to conduct an independent investigation of its own. Warren came to that first meeting believing that the Commission did not need subpoena power and would not hold public hearings. Although he would be forced to reconsider each of those positions, they were natural ones for a chairman who wanted to make quick work of this panel and who, as a governor, had entrusted much to the work of his commissions in California, where he placed confidence in small gatherings of experts to lead government to dispassionate, nonpartisan conclusions.

  It was McCloy who first suggested that the Commission needed a top-notch general counsel—a “rattling good counsel,” in his words—and Warren clearly had been thinking along the same lines. In fact, he arrived at the meeting that day with one in mind.34 It was, unsurprisingly, one of the men he had trusted most for the longest time, a friend and colleague of estimable reputation and one arguably closer to Warren than any man alive: Warren Olney III. Since returning to work with Warren in 1958, Olney had brought his lifelong devotion to detail and professionalism to the post, which gave him administrative authority over all federal courts and courthouses except the Supreme Court itself. Olney monitored budgets, congressional hearings, the status of legislation, and delicate matters such as complaints against judges. He met regularly with Warren, and Warren relied on his judgment.35

  To the Commission, Warren presented Olney’s credentials, his education at the University of California, Berkeley; his lineage as part of one of California’s most esteemed legal families; his service to Warren in a series of positions; his well-regarded tenure at the Department of Justice; his studied aversion to partisan politics. Before coming to the Commission that day, Warren had discussed with Olney the general counsel position, and Olney had agreed to take it.36 But Warren had barely laid Olney’s merits before the Commission when Gerald Ford spoke up to object. “There can be some,” Ford interjected gingerly, “unfairly perhaps, who would then say that the Chief Justice is dominating the Commission and it will be his report rather than the report of all of us.”37 When McCloy added that he was reluctant to approve Olney right away for a different reason—he sensibly noted that there was no reason to jump at the first name put before the Commission—Olney’s appointment was shelved for the day in order that the commissioners could make inquiries.

  They returned the next day, and Olney was knocked out of contention. The commissioners, conscious that a stenographer was recording their comments, albeit in executive session, talked around the reasons why Olney was unacceptable. Warren withdrew his name rather than debate the matter in a forum that might someday become public. All that was said in that early discussion was that commissioners had checked up on Olney and decided he was not the right man for the job. Late in the session, however, McCloy let the reason slip. The issue that had tanked Olney and deprived Warren of his trusted aide was, McCloy said, “that he was at swordspoint with J. Edgar Hoover.”38 What McCloy did not say, but what was later to become evident, was that Hoover and the FBI were determined to exercise influence over the Commission. They monitored its work, withheld information from it, and meddled in its business. And at its outset, they had help from an especially well-placed and eager informant, Congressman Gerald Ford.

  THE INITIAL MEETINGS of the Commission had not gone well for Warren. The other members challenged his conception of the panel’s work and rejected his choice of a top assistant. And yet Warren seemed to regain his footing after those setbacks. In that, Warren was aided by the hiring of a general counsel who, though not his first choice, brought a rational and more expansive view of the Commission’s work. Warren knew J. Lee Rankin from the latter’s service as solicitor general in the Eisenhower years, and the two men liked and respected each other. Rankin, in the view of the chief justice before whom he had so often argued, was “a splendid man in every respect.”39 Russell may have harbored some doubts about Rankin, who was prominently associated with desegregation, but the Commission already had scotched Warren’s first choice, and it now moved to accept Rankin with Warren’s blessing.

  Ten days later, at the commission’s December 16 executive session, a new tone crept into the proceedings—one of confidence, manifested both in the Commission’s own steps to organize and in its new willingness to exercise skepticism about the reliability of the agencies whose work would supply it with much of its material. Warren opened the December 16 meeting by having his old colleague, now retired Justice Stanley Reed, swear in the Commission, then ticked off the Commission’s organizational accomplishments: Rankin had accepted the position, 10,000 feet of office space in the newly built Veterans of Foreign Wars Building had been arranged—the fourth-floor offices were “clean as a thistle,” Warren proudly reported. Commissioners also had received the FBI’s initial report, as well as one from the State Department; others from the Secret Service and the CIA were expected soon.40

  But if those were the signs that the Commission’s work was coming into focus, the enormous scope of that work also now was becoming clear. Having read the FBI report, Warren and several of the others found little to praise. “To be very frank about it,” said Warren, “I have read that report two or three times and I have not seen anything in there yet that has not been in the press.”41 Russell agreed, as did Boggs, who noted that “reading the FBI report leaves a million questions.”42 Dulles voiced his dissatisfaction with the reports of Oswald’s activities in the Soviet Union during the period of his defection. McCloy wanted more information on the attempted shooting of General Walker, a right-wing military man living in Dallas, whom Oswald was accused of trying to kill in the months leading up to the Kennedy assassination. As the expressions of dissatisfaction mounted, Warren presented his colleagues with a motion to require the various a
gencies to turn over their raw materials to the Commission so that it could conduct its own analysis. With that, the Warren Commission moved subtly from reviewing the analysis of government agencies to conducting its own, more thorough and probing investigation. Neither Warren nor the other members were under any illusions about the implications of the expansion of their work. Commenting on the documents they were now requesting, Russell bemoaned, “[I]t will take a truck.” Warren replied, “Yes, I have no doubt.”43

  The Commission’s unhappiness with the report was reinforced by skeptical press coverage of the document, which was leaked to reporters at about the same time it was transmitted to the Commission. Hoover professed fury at the leak and blamed Warren for handing it to Pearson. “I informed the Attorney General [Bobby Kennedy] that Pearson got a good portion of the story from the Chief Justice with whom he is very close,” Hoover told his top aides.44 Although Hoover was right about the friendship between Warren and Pearson, he almost certainly was wrong about the leak. Press accounts of the report’s contents began appearing even before the Commission received the document, suggesting that the sources for it were within the FBI itself.45 While it thus seems more likely that FBI officials, perhaps without Hoover’s knowledge, were the source of the leaks, Hoover’s willingness to blame Warren—and to do so with the brother of the dead president—says much about how far gone were the days of the Bureau’s “Cooperation with Governor Warren.” With Hoover now angry over the leak, and Warren thwarted by Hoover in his desire to select Warren Olney, the old ties that once bound them were unraveling fast.

  The new, self-imposed mandate of the Warren Commission—to review the raw reports included in every government document relevant to the assassination—necessitated a new staff plan as well. Rankin, with the support of the Commission, divided the assassination into topic areas and began to recruit a full staff of lawyers. Former NYPD Commissioner Francis Adams and Chicago trial lawyer Albert Jenner were the first two picked for the Commission, and Rankin was given permission to go out and recruit more. Through late December, he did just that, drawing on personal and professional contacts to assemble two tiers of legal talent: senior lawyers drawn from top law firms and public service, and a second group of young attorneys who would end up carrying the bulk of the Commission’s work. Warren interceded only occasionally in that process, helping to bring on three lawyers he knew and admired: Joe Ball of Long Beach, a leading member of the California bar and longtime friend of Warren’s; Sam Stern, who had clerked for Warren at the Supreme Court and then was practicing in Washington; and Richard Mosk, a recent law school graduate and veteran whose father had once been Culbert Olson’s chief of staff—and in those years, a Warren foe, but his family had grown close to Warren during Warren’s governorship. Mosk wrote to Warren to ask for a place on the staff before beginning a clerkship on the California Supreme Court. Warren brought him on.46

  One other aspect of the Commission’s December 16 meeting is worthy of note, if only because of the controversy that would come to shadow its findings. At that session, Warren clearly believed others might have assisted Oswald. The man who frequently gave Oswald a ride to and from the home where Marina Oswald then was living, for instance, “certainly had to be checked out,” Warren said, as others added their suspicions regarding Oswald’s time in Russia and other movements. Whatever one may say later about the Commission’s conclusions, it is clear that as it began its work, its members were open to the possibility that Oswald was not a lone gunman but rather someone working with the help of others.

  The FBI monitored those developments closely and despite the secrecy of the proceedings heard about them almost immediately. Less than twenty-four hours after the Commission had met in closed session—with just its seven members, general counsel, and a stenographer present—the FBI knew of its work plan, its reaction to the FBI’s report, and even the names of those it was interested in hiring. It knew all that because it had a source inside the room: congressman and future president of the United States Gerald Ford. On December 17, Ford met with Cartha D. DeLoach, a senior official of the FBI, and briefed him in detail. He reported to the FBI the Commission’s initial reaction to the Bureau’s work on the case, though Ford presented that reaction far more favorably than the Commission had actually responded. He told DeLoach that two commissioners had doubts that Kennedy had been shot from the window of the Book Depository, he briefed DeLoach regarding the initial appointments to the legal staff, and he passed along the displeasure of some commissioners at public statements by a former Secret Service chief. All of this was dutifully recorded in the files of the FBI, and Ford’s contact passed information back to him as well. Ford, the FBI suggested, should tread carefully with his new colleague, Chief Justice Warren. The Bureau also warned that Warren was known to be close to Drew Pearson and thus might leak material to him.47

  Ford and the FBI closed their December 17 session with Ford making a request: He wanted to take the FBI report with him skiing over the Christmas holiday and wondered if the Bureau could get him a briefcase with a lock; the bureau delivered Ford an “agent briefcase” the following day.48

  THE AGENDA of the United States Supreme Court is partly its own. The justices choose the cases they hear, and any combination of four justices is enough to take up a case and either set it for argument or decide it on the briefs. But the Court cannot dictate what lawsuits will be filed, what cases prosecuted, what appeals pursued. It cannot avoid decisions because its members, even its chief, are preoccupied. And so, as the Warren Commission ground through its early labors, the Warren Court took stock of a momentous agenda. Warren had agreed at the first Court conference to write in the reapportionment cases, and even though he had since accepted the chairmanship of the president’s Commission, he refused to hand off the work. So now, as Rankin began hiring lawyers, Warren returned to Reynolds v. Sims. Reynolds was the first case of its kind to come to the Court in the post-Frankfurter era, and Warren now operated with the latitude that only Frankfurter’s absence could have provided.

  Alabama’s constitution was adopted in 1901, and it provided for a two-house legislature, which, as the 1960s opened, consisted of 35 senators and 106 members of the state House of Representatives.49 The state’s political balance had been struck with the adoption of its constitution, and in the sixty years since, it had grown unevenly, with cities such as Birmingham, Mobile, and Montgomery growing faster than rural areas. Although the state constitution also required a decennial reapportionment, Alabama’s leaders had ignored that provision, and its courts, while finding that a violation, took the Frankfurter view that politics was beyond the reach of judges.50 The result was a pattern of voting that denied urban—and thus, black—voters anywhere near the power afforded to rural whites. Bullock County, for instance, had a population of 13,462 and was given two representatives in the state legislature; Mobile, with a population of 314,301, had three. It was, in the language of the law, an “invidiously discriminatory plan completely lacking in rationality.”51 And yet it stood.

  Warren set out with Reynolds to complete the work of Baker v. Carr, but he did so while also chairing the Warren Commission. As a result, he relied heavily on his clerk, often talking with him by phone or meeting at the beginning or end of long days. Beytagh and Warren settled on some early drafts and began to circulate them among the justices. It was immediately clear that they would prevail. “The opinions issuing from the chambers of the Chief Justice in those cases were joined without the slightest apparent hesitation or reservation by Justices Black, Douglas, Brennan, and Goldberg,” Brennan’s clerks recorded that year.52 That gave Warren a majority, but a slim one, and he asked Beytagh to continue to hone the writing, specifically with an eye toward attracting White’s vote. Beytagh drafted and corrected drafts, and Warren worked on White personally, dropping by his chambers, urging him to consider the fairness implications of rules that gave so much more power to some voters than others. By spring, White was wavering, and Beytag
h and Warren were discussing the finer points of the ruling, among them the question of how often legislatures should be required to redraw district lines. In his draft, Beytagh had proposed a decennial reapportionment to coincide with the census. Warren was not convinced.

  In that case, Beytagh said, “I have an alternative. We can go back to the Brown case and use ‘all deliberate speed.’ ”

  “No,” Warren replied, shocked at the idea of reviving the phrase that had caused him and his Court such grief. “I’m not going to do that.”

  “I’m just pulling your leg,” Beytagh said, and the two relaxed in a moment of laughter. Laughter came all too rarely in 1963 and 1964.53

  By the end of the term, White had come around on Reynolds, and he eventually joined in its reasoning and its memorable language, much originally the work of Beytagh, though all of it supervised by the chief justice. “Legislators represent people, not trees or acres,” the opinion for the Court noted. “Legislators are elected by voters, not farms or cities or economic interests.”54 More than four decades afterward, those remain the most quoted words of the Reynolds opinion, but Reynolds also contains a parting shot by Warren at Frankfurter and the votes he once commanded: