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supreme court historical society yearbook: 1982

 



The Warren Tapes: Oral History and the Supreme Court

Amelia Roberts Fry


(Editor's note: Oral history is a branch of scholarship and documentation which is comparatively new, and particularly new in the area of judicial history. But a major step forward in the latter field has been the comprehensive project on the pre-Court career of the fourteenth Chief Justice of the United States, which is described here by the person who directed the project from 1969 to the present. Although much of the material on the California years of the later Chief Justice may at first appear to have limited usefulness for the legal historian of the Supreme Court, Mrs. Fry's demonstration of the interrelationships which become more evident with the increasing range of interviews in a project of this importance is in itself an indication of the potential which oral history has for future research by scholars on both Earl Warren and the Supreme Court.)

In the early sixties Daniel Boorstin, now Librarian of Congress, drew a bead on lawyers and judges and handed down a non-judicious opinion. "Future historians will marvel that our society could have put the custody of our legal institutions into the hands of a profession with so little historical perspective."[1] About the same time Dr. Boorstin was passing sentence on the judiciary, Chief Justice Earl Warren was mulling over a request from his alma mater, the University of California at Berkeley, which also dealt with the historic void. The staff of the Regional Oral History Office (ROHO) had asked Warren if he would consent to be interviewed in a project to document his era in California for the Bancroft Library archives.

Two months later, after further urging by his classmates and others, he sent a typically deliberate reply to ROHO which opened the way for oral history to make its own documentation of the history of the "third branch:" He noted that "I have never intended to make an intentional record of my activities in public life," but was willing to listen to argument. "Some day when I am at the University, I will be happy to talk to you about your own method of doing things and how it might fit in with my position on the Court."[2]

The "method of doing things" was oral history, but at that time neither the lexicons of historians nor the public's conventional wisdom had settled on a name for it. Today the technique is described by the Oral History Association as "a method of gathering and preserving historical information in spoken form." It is usually intended as a time capsule of sorts, to be deposited with related collections of papers in archives where future historians, biographers, and (perhaps now) legal historians can find the raw material and primary sources they need to recreate or enrich the record of events.

The Chief Justice agreed to participate in the project after an exchange of predictable assurances: on his part (voluntarily), he gave the University complete independence in its research and operation. On ROHO's part, the project agreed to focus on only his California years because he was still on the bench at the time. That Warren was protective about certain areas of inquiry into Supreme Court cases did not mean he was unaware of problems historians were having with increased reliance on press accounts; in fact, he comments on that source's reliability in his published Memoirs:

The media [do] not consider the Court's work newsworthy until it makes a decision which stirs emotion on the part of great numbers of people on the losing side. Then the media give a superficial judgment which is often wide of the mark, and leave the matter to the public in that unsatisfactory condition. This is largely because news gatherers are not deeply concerned with the proceedings before the Court until decision day; their homework is thus generally inadequate.[3]

John P. Mackenzie explained the view from the Washington Post in 1968: "Secrecy at several levels both protects and obscures the Court and its work. The process of marshalling a Court, of compromise, of submerging dissents and concurrences, or of bringing them about, can only be imagined or deduced. . . " He cites the process of handling petitions for certiorari as "a process which . . . eludes the attempts of newsmen to fathom, much less to communicate to the general public, a sense of what the Court is doing."[4]

Warren sidestepped the dilemma between what ROHO saw as the historical mandate to provide as full a record as possible, and the judicial imperative to maintain confidentiality about specific decisions reached in past litigation; he simply requested that ROHO's study not delve into his experience on the bench. Today however, federal justices and historians working together have evolved a workable approach that respects both judicial and archival mandates. In a series of interviews that ROHO is conducting with federal district justices of the Ninth District, Justice Albert C. Wollenberg sent the interviewer, Dr. Sarah Sharp, a list of cases he had selected for their discussion of sentencing:

Wollenberg: The point I wanted to make with you now is that these things are confidential and you can see the reason.. .. We shouldn't be referring to them I don't think by the case name and individual.

Sharp: Sure, most questions are just real general.

Wollenberg: Yes, I appreciate that. I just mean, let's not be specific about who we are talking about. We'll just simply talk about Mr. B, or something like that.

Sharp: I wondered, first of all, why you picked these cases?

Wollenberg: Well, I didn't "pick" them.., only to this extent: they're a good cross-section; they're all different cases. There's tax fraud; there's bank robbery; there's receiving stolen property; use of a telephone or interstate wire for fraudulent use. [Reading] "importation of heroin.., possession and passing of counterfeit money.. . possession of cocaine with intent to distribute;" and tax evasion. . . . These cases are all the result of trials. They're not pleas of guilty

That's why they were picked.[5]

Wollenberg then proceeds to discuss each case separately But Warren's interviews of a decade earlier do not touch upon such subjects.

Oral History's Unique Contribution

The Chief Justice probably was aware that for a century oral histories had been an intrinsic part of his alma mater's extensive collection of manuscripts in the Bancroft Library Old Hubert Howe Bancroft himself, ranging from Alaska to Mexico, had filled several shelves with "Dictations" of Mexican grandees and Yankee pioneers that he, his agents, and sometimes his wife and daughter took down in notebooks. Today the thirty-nine volumes are major sources for anyone writing on the history of the nation's nineteenth century westward movement. Bancroft stopped his work in the 1880's, and the faculty at Berkeley resumed the oral history program in 1953 as tape recorders began appearing on the market. At Columbia University, historian Alan Nevins had already experimented with the new electronic gadgetry to obtain "from the lips and papers of living Americans who have led significant lives a fuller record of their participation in the political, economic, and cultural life of the last sixty years."[6]

The fact that two large universities, one on each coast, were developing oral history offices almost simultaneously was a sign of a mutual discontent with a sort of nationwide amnesia caused by twentieth century technologies. Once our society had plugged into a telephone system, important pieces of the historic record self-destructed the moment a receiver was hung up. Easy plane travel encouraged person-to-person discussions which likewise remained unrecorded. Gone was the practice, perhaps the luxury of painstaking explanatory letters and memos which for centuries had created documentary material for archives of the future. Diary writing, once commonplace, became rare.

Paradoxically, the nation's bureaucracies were simultaneously intent on producing a rising tide of paper. (The San Francisco Chronicle noted in 1973 that the National Archives accessioned seven million cubic feet of new records each year, and this was only three percent of what the government produced.) But most of the information in papers today consists of records of routine transactions, self-serving reports to the boss, cautious memos justifying decisions already made, and tons of public pronouncements designed with an audience in mind. More and more, historians are having to look to newspapers in a gloom exceeded only by their skepticism: news stories may be excellent as quick reportage in the first blush of an event, but they were never intended to be carefully probed evidence or first-hand, first-person source material.

Clearly, the records preserved in archives across the land needs supplementary material. Now, as technology discouraged production of much treasure in conventional sources, it finally provided access to new riches through new electronic capabilities. The invention of the tape recorder made oral history a practical means of counteracting the growing anemia in important written sources.

The Earl Warren Oral History Project did not get under way until 1969–evidence that part of the problem that Boorstin described lay with funding agencies' priorities. Finally, a small grant came from the National Endowment for the Humanities, matched by donations from Warren 's previous law clerks, from small local foundations, and from friends of the Bancroft Library

Thirteen years and 121 memoirists later, the oral history project can now announce its final volume, the oral record from the Chief Justice himself, on the shelf alongside the other fifty-three bound volumes of transcripts. Altogether they form more than the biography of the Chief Justice; it is a biography of the state and nation from 1925 to 1953–give or take a few years. The set is in the California State Archives and in the law library of the College of William and Mary, as well as at UCLA and, of course, Berkeley's Bancroft Library Selected volumes may be found in research collections all over the country.[7]

For the narrator, producing an oral history requires less time than writing memoirs; it is usually more enjoyable, and it is easier because the interviewer does most of the research. But it does require a commitment of time segments that the interviewee has to schedule. As for interviewees, initial selections were based upon: (1) the person's proximity to a political or governmental inner circle, or to the life of the central figure in the project– in this case, Warren; (2) the angle of the point of observation, such as that of the legislature, the lobbies, the press, and so on; and (3) the individual's health and ability to articulate and conceptualize, as well as his memory (Oliver Wendell Holmes–a Justice who was too early for oral history–correctly anticipated the wariness of oral historians when he wrote, "Oh, this terrible gift of second-sight that comes to some of us when we begin to look through silvered rings of arcus senilis!") Finally, (4) there was the balance needed for all sides of the proverbial blind man's historical elephant. The latter criterion required spokesmen not only for each political view but also for specific subdivisions of the time frame.

An oral historian, who is creating archives, can be delighted one day with a historical "scoop" on tape, and the next day he may face the challenge of effectively using his 90-minute appointment with an interviewee who is either too taciturn or too discursive. Processing costs per tape mean that such problems, if not handled adroitly, can either bankrupt a project or alienate an interviewee. When a research project's sources are a variety of living personalities, the human variables often defy the best efforts to keep the process efficient and on a predictable schedule. To cut down on the chances of delays and surprises, a project's staff at the outset needs to explore judiciously the criteria for screening interviewees, choosing research topics, seeking advice from knowledgeable experts, and building basic themes for questions.

History While It's Hot

The Warren Project was fortunate in that two biographies of Warren himself had just appeared–respectively, by John Weaver and Leo Katcher[8]–which were indispensable as starting points for discussion with the authors for advice on priorities of interview themes, and links between personalities and issues. From their own experience in interviewing some of the same characters, they knew to which topics a particular interviewee could best address himself.

The first round was with persons who were in more peripheral positions in the power structure. This provided not only more information for project files but a more subtle sense of definition of attitudinal patterns. The result was that subsequent interviews .with people closer to the center of events could at least be more empathetic and usually more knowledgeable. The following is an example of a question raised by an earlier interview which was followed up in a subsequent interview with someone closer to the event:

Listen to that master observer, Carey McWilliams, for years an editor of The Nation, and critic-at-large of California's society and government. Then hear a follow-up recorded by Ford Chatters, who had worked closely with Warren as his publicity chief for the same campaign that McWilliams describes. First, McWilliams, on November 12, 1969:

Warren, I always thought, was always thinking of where he wanted to go next, politically speaking. My impression of him as a California politician was that he was very cautious. He was pretty much the law enforcement type. No reason why he shouldn't be because that had been his career. He was pretty grim. . . . until he retained public relations specialists Whitaker and Baxter when he first ran for governor. Then I was amazed at what they were able to do with Warren. I think it was one of the first professional image-changing jobs, and a very good one. I remember still the shock, after Warren announced his candidacy for governor, at seeing in the Southern California papers big photographs of Warren at a grunion hunt on the beaches.. . Here was our candidate for governor in a bathing suit, laughing and running up and down the beach, et cetera et cetera. Now I had never seen a photograph of Warren like this. Never. . . I said to myself, "That is the hand of Whitaker and Baxter. . . ."[9]

Carey McWilliams had known only the exterior of the story, but his perceptions instigated new questions for the project's question bank. Two years later Ford Chatters gave history a closer look at that episode. He was showing the interviewer one of the family pictures used in the campaign.

Fry: Warren liked that picture?

Chatters: Well, at first he didn't want it used.

Fry: Why?

Chatters: Oh, just the desire to keep the family out of it [the campaign]. Especially when we talked in terms of using hundreds of thousands of them, all we could afford to distribute.

Fry: Who talked Warren into O.K.'ing it I wonder.

Chatters: Oh, Clem and Leon Baxter probably.[10]

One of the most difficult tasks for a biographer is not the tracing of a person's chronology, but the collecting of the human events and social attitudes around him in order to identify those which seemed pertinent to him at any given time. Oral histories are probably richer with clues for this process than letters and written records. Take, for instance, the circumstances around Warren, as state attorney general, when World War II broke out in Hawaii. He was already in a war himself–with a governor over the control of civil defense, in a state with a thousand-mile coastline exposed to Hawaii, and beyond that, Japan. Several of the project's interviewees recalled their perceptions, among them Helen MacGregor, Earl Warren's executive secretary and deputy attorney general:

. . . All law enforcement people and fire department people looked to him, as attorney general, for guidance on all civil defense matters. I remember the day of Pearl Harbor. Mr. Warren called us around two o'clock in the afternoon. Phone calls were coming in–some of them sounded hysterical. There was some sabotage as I recall, but no major sabotage. The sheriffs and the chiefs of police were calling in wanting to know what to do and how to do it. . . There was a great deal of fear throughout the state . . . At an early point, this West Coast was declared a combat zone. . . .There were raids on some of the Japanese places by local police, I think. I remember one in the Sacramento Valley, where a substantial cache of weapons was found. We didn't know, from one day to the next, when there would be a major Japanese attack. The coast was defenseless. The Air Force had all been sent over to Pearl Harbor, but the second or third night of the war there were planes overhead in considerable number. I felt at the time that they were Japanese planes, a roar of planes, around 8:00 or 9:00. I believe it was just their reconnaissance flight. If Japan had followed up on Pearl Harbor with an attack on this coast, we would have had a terrible time. . . . But we were blessed by the fact that Japan didn't try.[11]

Earl Warren recalled something which does not appear in any newspaper of the time but which was verified in Coast Guard records: two sinkings in San Luis Obispo harbor, and one in San Diego.

Shortly after Pearl Harbor, I had a phone call from Abe Brazil down in San Luis Obispo. He was the district attorney there, and he told me that that morning (he called me early in the morning) there was an explosion off the coast there that had awakened the whole town, and that they [the town's residents] got up and they went down to the shore–the seashore–and they learned when they got down there that a submarine had sunk a tanker of ours. The crowd stayed down there talking about the thing, you know, and when it got light, along came another tanker and up came a submarine in front of the whole town and sunk it right there.

Brazil said to me, "Gee, I don't know who to call, but," he said, "we immediately phoned the Air Force"–they had an air base there just three miles from town–"and we waited for hours. They never showed up!" So, he called me. He said, "I don't know who to call, so I just called you."[12]

Warren also called the military and discovered that the entire coastline was virtually defenseless. Another example of the pertinent historic context comes from Oscar Jahnsen, Chief Special Agent for Attorney General Warren. His perception also was that invasion was imminent:

"When Pearl Harbor came along and they started sinking ships off San Luis Obispo and so forth, it became apparent that we ought to find out where the Japs were, if there was an invasion. Warren wanted to know if they were around anyplace that could do us any danger. I sent to the Division of Highways for their maps, and sent a copy of each county map to each of the 58 district attorneys. We asked them to send us those maps back, giving us in detail as much information as they could as to where the Japanese were, the. amount of land they had. When all these maps came in, we had a master chart on which we marked all of these things, and all of these [Japanese] places appeared to be strategically located. It looked as though pressing one button they could go to work and they'd take over the whole state of California. . . "

Warren showed these to Commanding General DeWitt, and DeWitt just realized that if he waited too long, many things could blow up along the Pacific Coast. . .[13]

The decision to evacuate the Japanese-Americans along with the Japanese was a complex one, emanating from the White House. Most historians agree that it was urged by the army, with pressure from California congressmen. Warren's speeches and his testimony before the Tolan committee can be considered within not only the context of West Coast panic, but also as set against the backdrop of the early resistance of the Justice Department to the removal (a resistance which ultimately crumbled) and the competing urgencies of the conduct of the war that faced Roosevelt. James Rowe, U.S. Deputy Attorney General at the time, summed up in his interview:

I don't think Roosevelt paid much attention to the thing at all [when he decided to sign the order]. I think he said "well, it's war," and after all you had a couple of British ships just sunk at Singapore. The Japanese evacuation question must have been a fringe matter for him those weeks just following Pearl Harbor. . . I think FDR told Attorney General Biddle to move the Japanese, and he followed presidential orders. We [the Department of Justice] should have made sure we were heard at the White House [in opposition to the removal]. Our fight should have been at the White House level. We made a lot of mistakes.[14]

Finally the question asked of many interviewees was, Where was your voice of opposition at the time? Person after person looked back unable to explain their inaction. Ruth Kingman, who later led a concerted effort on behalf of the Japanese Americans, describes a sort of paralysis of incredulity "As time went on, it was evident that evacuation was to be indiscriminate–far-reaching–total. . . .Most of the 'goodwill people' just didn't believe that it could happen. 'It can't happen here' I think was the major reason that there was no immediate opposition. "[15]

Even though the former internees themselves were not interviewed, the backward look thirty years later was painful as the scenario unfolded again. Often both interviewee and interviewer talked doggedly through tears. The Chief Justice was not exempt. In a preparatory session with Earl Warren, which was recorded not on tape but in notes taken by all staff members, the Chief Justice's eyes brimmed over as he said, "Now that society in general is so much more aware of civil rights, interning them (the Japanese Americans) seems like a terribly cruel thing to do, and it was a cruel thing, especially uprooting the children from their schools, their communities and friends, and having whole families transferred out to a strange environment and a less desirable environment. . . ."[16] Later he was to write much the same sentiment in his Memoirs.

Earl Warren's Own Oral History

The tape-recorded sessions with Earl Warren bring up another point. In several aspects it ran counter to the methods that ROHO had developed over the years. The optimum length for a session was considered to be between an hour and an hour and a half; Warren's sessions began in the morning and lasted all day A one-to-one interview generally promotes better understanding between interviewer and interviewee and allows better organization of the narration; Warren requested the presence of his assistants Warren Olney III and Helen MacGregor, a format which led to all six interviewers–each with a different expertise–sitting around the table too, and Doubleday editor Luther Nichols sitting in because Warren was also working on his Memoirs.

Nonetheless, the marathon sessions proved exceptionally valuable. Two tape recorders were used at all times, and the give-and-take even in such a large group comes across on the transcript. But after three all-day sessions with Warren (each several months apart) negotiations were attempted to do it the "right" way–i.e., tape record his memoirs a piece at a time, with one interviewer at a time, going through his papers file by file for questions and an "agenda" of topics to explain and compliment the papers. It was an enormous request to make of a man who was busily engaged in a half dozen other demanding projects, albeit no less than the nation's history deserved. Time dragged on, and nothing more was done before his death.

Also contrary to usual procedures, the transcript is completely unamended, graced only with bracketed additions of phrases and names here and there to keep the conversation understandable to readers, who of course are not privy to the background work-ups, the chronologies, and the question lists that were present on the table. The transcript was also audited three times with the tapes from both tape recorders to promote as much accuracy as possible. Many of the questions were spin-offs prompted by advance drafts of his Memoirs, which he and Doubleday sent to ROHO's staff. Material that is appropriate in a manuscript being published for the general public usually raises a number of additional questions for oral history where the objective is to preserve the past in research archives for scholars from several fields; the questions must be more multi-disciplinarian

Many of the questions came from news files, which sometimes offered Warren an opportunity to correct the media's instant history For instance, he was asked about a story during his campaign for attorney general in 1938 which says the then district attorney was "rabidly" opposed to horse racing and pari-mutuel betting, and if elected he would see that the entire state be cleaned up. Warren said the story was spurious.

Fry: Why do you say it was spurious?

Warren: Well, because I had never put it out, I had never said it. Pari-mutuel betting was legal in California. . . That was the opposition trying to get all of the people who were interested in horse racing to be against me. My headquarters never put out anything of that kind.

MacGregor: I remember that very, very well. The Chief was down in L.A. . . . This was either Wes Robbins or the one from the Post Inquirer who called.

Warren: Frank Piazzi

MacGregor: Frank Piazzi–read me this purported statement and said "That doesn't sound like Earl." I said, "It doesn't, and I don't think he said that." Then I got on the phone and reached you somehow and then you said, "Just say it's a forgery [laughter]. I never said it."

Warren: Yes, yes, I know I never said that. I never have been enamored with pari-mutuel betting, but I have never used it as an issue in a campaign, as the constitution provided that it was legal.

Fry: And they were able to print the statement that this was a spurious press release?

MacGregor: The papers that did carry it . . . they were able to print a retraction.[17]

As happens in using newspapers as sources, researchers had found the original statement but the retraction was not seen because no one knew to look for one. The story had a premise that made it sound possibly credible; that he would be against all gambling in whatever form did not require much of a stretch of the imagination.

Law Enforcement

Warren was known as a tough district attorney who had made his reputation raiding gambling establishments in the county, throwing out bootleggers, and even prosecuting a corrupt sheriff. The crooks were brought to trial quickly Just how this was done Warren Olney III explains in his own memoir (corroborated by other deputy D.A.'s as well as by Warren himself):

"We had a policy and this was Earl Warren's doing entirely and he imbued the whole office with it, and insisted on it–a policy of moving the cases as rapidly as it was possible to move them. . . . But the pressure was always kept on us–he kept it on us. . . Now this required an awful lot of work. . . . We had to be down at nine in the office, and we were expected to stay at least until 5:30, and to work at night if we needed to. We worked every Saturday–expected to do that too. If we didn't have inspectors enough to run around and interview our witnesses to get it ready, we were supposed to do that ourselves and we did."[18]

Earl Warren put it this way in one of his sessions:

Warren: Well, I don't know what it [the delay on cases] was, but I know that it was too long when we started, and we ran it down so that everybody got a trial in thirty days, not because of his insistence that he be tried speedily, but we just insisted that the cases be tried . . . within that length of time. We used to try our important murder cases in thirty days from the day of the murder.

Fry: While Helen MacGregor is here and Warren Olney I'll ask . . . how did the staff manage to get all of the research done so that a person who had a case could keep it moving along that fast?

Warren: Well, he didn't have any forty-hour week. [laughter].

MacGregor: He just keep plugging.

Warren: We kept their feet to the fire almost. Well now, there's just an awful lot of truth in that too. We didn't have any forty-hour week, we just worked all hours of the day and night if it was necessary to do it, and that's the only way you can keep up with these things.

Warren views the present practice of plea-bargaining:

Warren: There might be some plea-bargaining today as in a great many times where the judge has the option of punishing by imprisonment in the state penitentiary or by imprisonment in the county jail. Maybe they go to the extent of bargaining with a fellow and saying, 'I won't plead guilty unless you assure me that I'm not going to the penitentiary but I'll only go to the county jail." That could be done, and I don't doubt but what it is done a good bit, but–

Feingold: But that wasn't done back in your day as District Attorney?

Warren: No, we didn't do that. They were tried for a major offense. Very rarely we did the other.

But Warren contrasts the larger pressures of criminal justice and law enforcement of the early Seventies with his era:

Law enforcement officers today and the courts have problems we never had. We had, in spite of that we were in a rough riding and hi-jacking era and a time when all of these rackets that they had in Chicago and New York and so forth were trying to come out and get established here, we had a pretty rugged time. But the era was so that we had good will on the part of the general public. We just didn't have the problems of bitterness that everybody has today–the spirit of bitterness that makes life almost unbearable for law enforcement officers and for the trial courts. . . [19]

Warren's active fight against gambling continued in his attorney general period with a spectacular victory in quasi-naval battles to arrest the purported "captain" of a gambling ship moored just outside–he thought–the jurisdiction of the state. Even after Warren became governor, he was appalled at the obvious corruption of the attorney general (who, in California, is also elected by the people); concerned over organized crime getting a foothold in the state, Warren called on his trusted friend Warren Olney, who helped him organize a crime commission that could circumvent the recalcitrant attorney general. The commission's reports (exposes actually) worked as the governor had hoped. The attorney general was not re-elected, and his successor was Edmund G. "Pat" Brown. (Later, in 1958, Brown brought the Democrats into power by winning the governorship.)

In Brown's interview, he tells of how in 1951 he assured the governor that although they belonged to different political parties, he would be loyal, he would always be the "governor's lawyer," and there would be no need for the crime commission henceforth. But an interesting thing happened.

Brown: Earl Warren called me up in San Francisco . . . and he said, "I've decided that lam going to keep the crime commission for another year," and I said to him,

"Governor Warren, I am the new attorney general, and my responsibility is to enforce all of the law, and I wish you would give me the chance to enforce the law without the aid of any extracurricular body And I said, "I want all the credit or all the blame. I don't want to share it with anybody if I do a good job as attorney general."

And he said, "Pat, I already have it in my message to the legislature. Will you come up and talk with me?"

So I took my chief assistant, Bert Levit, with me and we went up to Sacramento. The press were outside waiting to see the new attorney general meet the old attorney general now elected governor for a third term at that time. .

Earl Warren said to me, "I hope you'll go along with me on this. I know how you feel, but I really feel they [the crime commission] haven't completed their work yet."

And I pounded on his desk (not hard) and I said, "Governor, I want the right to do this job that I have taken a solemn oath to perform."

He . . . was very conciliatory, but didn't retreat in the slightest degree, and finally he said to me, "Now let me just tell you something. I've been around here for a long time and you're new up here. Do you want to walk outside here at the beginning of your career, and have the press say–in headlines talking to ten million people in this state–say "ATTORNEY GENERAL BREAKS WITH GOVERNOR'?"

And I said, "Governor, we shall have a crime commission."[20]

That is not quite the end of the story, however. Pat Brown needed experienced investigators for his new job. And where better a pool of experience than–

Brown: I brought Art Arthur Sherry with me. He was a special prosecutor for the crime commission. I made Art Sherry my chief assistant general. That was one of the reasons why I didn't feel that we needed any crime commission. And a man named Harold Robinson, who was chief investigator for the crime commission, became my chief investigator. So I really took his crime commission and used them.[21]

The Governor and Politics

This episode proved to be typical of the relations between Warren and Brown. A rich friendship grew between the Republican and the Democratic leaders of the state, one which resulted in regular hunting expeditions together when the Chief Justice returned to California.

Party lines became strong and clear during presidential years, however, and once Warren became governor he was a presidential or vice presidential candidate at Republican conventions. Although he turned down the vice presidential nomination in 1944, he had headed the Republican party in California in the Thirties and he was not ignoring the White House siren song that persisted through the 1952 convention.

What goes on at political conventions is a topic in which oral history competes very well with the understandably sparse written records. One example of many spread throughout the political volumes is travelling Secretary Merrell F Small's portrayal of Earl Warren after the 1948 vote at the Republican convention. For Warren, it had been hopes for the presidency or nothing; but at the convention he finally did agree to run with Dewey, quite against his own desires. The scene is Warren's private hotel room, and Warren is watching the convention on television with Small, affectionately called "Pop" by nearly everyone.

Small: I was alone with him. There was nobody else. Mrs. Warren was at the convention and the girls were at the convention. . . . Warren had just been nominated vice president. He turned to me, and he said, "Pop, I had to do it." He apologized! . . . "I had to do it. If I hadn't taken it this time, they'd never consider me for anything again." . . . Because he was looking ahead–maybe another chance, you see.[22]

That campaign was not a happy one for Warren, for reasons that vary with the narrators; probably they are all correct. There was a lack of communication in the campaign between Warren and Dewey; there was a personality gulf between the western forthrightness of Warren and the sense of propriety of Dewey; and there was a profound difference of opinion on the basic strategy of the campaign, which is encapsulated in a tiny vignette, again by Pop Small:

Small: Dewey's campaign strategy was, "Let's not commit ourselves. We've got this thing in the bag.". . . Warren argued against the strategy to an extent. "We've got to take some positions." But Dewey was the boss man. . . . I walked in this particular morning, and he [Warren] was in his shirt-sleeves with one leg up over the arm of a big overstuffed chair, with the telephone up to his ear, and I quote, "But Tom, we gotta say somep'n about somep'n some of the time."

"The campaign ended and we went to San Francisco for election night. About ten o'clock the governor announced he was going to bed. He had told us two weeks before the election that Truman had won. He said, "He has reached the people and we haven't."[23]

Bipartisanship was a major strength of Earl Warren's campaigns, a necessary strategy for a Republican to win in a state in which, after 1936, Democrats increasingly outnumbered Republicans. Permissive election laws that allowed cross-filing in primaries was all to Warren's advantage, as most interviews with his campaign workers gleefully explain. For the Democrats, there is Warren's 1950 opponent, James Roosevelt:

Fry: How was Warren's strength assessed by you and the other Democrats?

Roosevelt: We all knew that he was a master politician and he had succeeded in building what might be called a "Warren party" which included enough of the Republican party (who were not always united behind him as I'm sure would be evident from newspapers. . .) but I think that he attracted liberal elements of the Democratic party He convinced the conservative elements of the Democratic party that certainly he was preferable over any other Democrat they could think of, and he really built a Warren party straight across the board.

And of course he was helped at that time by the fact that we had . . . cross-filing in the state so that . . . you could pose as both a Democrat and a Republican and how you had a foot in both camps and that you were the best of both. And he did it in a masterful way He had a good public record. . . . All in all, he was an effective governor without any question of it.

. . . Let me put it this way: effective opposition to Warren was destroyed because of this tactic, which failed to bring to the attention of the great population of California the basic things which were not getting done and not being faced, which would become very serious problems later on.[24]

In addition to gathering as much enlightenment on Earl Warren's personality as possible, other overarching themes dictated avenues of questions to be applied to all interviews. What were Warren's basic contributions as governor? How did he handle the legislature? How did he select state appointees? And that question that everyone wonders about–was Warren as governor different from Warren the Chief Justice, less "liberal," less the reformer? The basic constancy in his personality may have made change a difficult phenomenon for those around him to perceive.

Earl Warren himself explains his approach to any change, any reform–and it is illuminating:

. . . no matter how strongly you feel on a subject, I think you have to start very often with small beginnings and work forward from one step to another. . . a growth from nothing up to meeting conditions as they come along, don t you see, depending on what problems developed, and so forth. That's the way most social institutions develop, anyway They don't come in full-blown, and if they do, they're usually disasters.[26]

Warren and Religious Law

The project followed any clues to the on-going development of Earl Warren's system of values. Early in the planning stages nearly every advisor mentioned how close William Sweigert had been to Earl Warren. From his position as assistant and administrative organizer in all of Warren's offices from district attorney to governor, (where he was personal secretary to Warren) Sweigert enjoyed constant access to him. He was a man with a thoroughly Jesuit training, a fact his own interview integrates with narrations of the walks and conversation on philosophy of government that he and Earl Warren used to have, and with a memorandum that Sweigert prepared when Warren was governor-elect. It is a basic statement of the progressive view of government: responsible for the social, economic, and physical wellbeing of its people, a use of bureaucratic power to improve society

What did not come to light until later was another factor: Earl Warren's personal investigation into Talmudic Law. Ben Swig, a close personal friend of the Warren family, had said, "I'm going to be frank with you. He knows a lot more about it [the Talmud] than I do. . . . I'll have him teach me something about it one of these days." Off tape, Swig mentioned that he thought Warren had studied it under Rabbi Louis Finkelstein, now Chancellor Emeritus of the Jewish Theological Seminary of America. This was an intriguing lead, and later Finkelstein taped a short session but one with long ramifications. The two men had met in 1951 when Governor Warren gave a commencement speech at the University of Judaism in Los Angeles, and their friendship continued. As Chancellor Finkelstein recalls, "when he came east to the Court, I saw him more frequently."[27]

Finkelstein: He and I often discussed the ethics of the Talmud, which is the greatest Jewish commentary on the Bible, containing discussion of most of its laws. He was very impressed with that. And he said that he would like to spend a little time with us here (at the Seminary). I said, well, if he came here for a weekend, I would arrange to have our professor of Talmud, who is the greatest living authority on the subject, lecture on Friday night. And I'd ask another professor to lecture on Saturday at lunch.

He agreed to that, and he came and spent the weekend here. [September 13, 1957] On Friday evening, our Talmud professor, Professor Saul Lieberman, discussed the passage in the Talmud which forbids acceptance of any confession in any way in a criminal case. This is the only system of law of ancient or medieval times which did prohibit it. . . . The Talmud also has ruled against double jeopardy A person who has been tried once cannot be tried a second time. . . . After the lecture the Chief Justice said to me, "I think I would like to say a few words." And what he said was, "This lecture in has been so interesting, so instructive, that I can't understand how it is nobody knows about it, that this is kept almost as a secret among you specialists in the field.

Fry: Then his chief interest in it was its relation to our Bill of Rights, do you think?

Finkelstein: No. I think he became interested because of this great concern of the relationship of ethics to law. Curiously enough, in the Talmud we have a situation very similar to what you have here. . . . That is to say the five books of Moses are an immutable constitution. They are the law. But of course they go back thirty-five hundred years . . . So that the role of the Jewish rabbi over the centuries has been in some respects similar to the role of the judge in the court in trying to interpret a written document so as to make it fit the needs of life, and how would the author of the document approach a situation when it is entirely novel.[28]

Later in the session an attempt is made to establish the extent of this pursuit. Finkelstein had said that the seminary had given Warren a copy of the whole Talmud, but that Warren confessed once, "'I don't spend too much time on it,' as indeed he couldn't, being a very busy man. Studying the Talmud is like studying higher mathematics."

Fry: Did you continue your discussion of the Talmud here (in Washington)?

Finkelstein: Yes . . . . We often sat around and discussed these questions. He liked to do that.

Fry: About how often?

Finkelstein: Well, I would say that I used to come to Washington about three times a year. . . Always a lunch, and lasting an hour or so after lunch.

Fry: And he would question you?

Finkelstein: He would question me, or I would make some comments. But very often he questioned me. It was very fascinating. He was a profound man. Of course he was popular, and didn't put on any airs. One often was deceived into thinking that he was simple. He wasn't simple. He was a very profound gentleman. A very profound thinker.

Fry: Well, it's interesting that you found that this man did have a profound mind, because we do get testimony that he was simplistic.

Finkelstein: He gave the impression of being simplistic.

Fry: But that was because he had distilled things?

Finkelstein: That was because he wanted to give that impression. He was direct and didn't like letting technicalities interfere with justice. . . He was a man of deep understanding and saw through a good deal that he didn't talk about, in public, and which I don't think I'm free to talk about here either . . . but he certainly was a person who had a profound grasp of the situations in which we live and a determination to deal with them.[29]

The Chancellor did not know anything about Earl Warren's attitude toward black minorities because most of their conversations occurred after the desegregation case, Brown v. Board of Education. But it was a question often asked in interviews, and one of the most interesting discussions occurred with Edgar James "Pat" Patterson, now retired as counselor-psychotherapist at Vacaville prison. As a young black, he was a guard at the governor's mansion but much more than that; he had been chauffeur-companion to the Warren's six children as well as to Warren himself. The two men took long drives alone into the fertile California countryside to lessen the stress of the governor's duties. Several times Warren questioned "Pat" about the difference he had experienced between his segregated school experience in Louisiana–a far cry from Warren's hometown of unsegregated Bakersfield–and how it differed from Pat's subsequent schooling in Sacramento, which was integrated. Patterson recorded the following:

Warren and I would discuss things like this, that there is no such thing as being separate, from different schools, and being equal, because so much is left out . . . How you feel–your terms, your language, your way of thinking is different from when you go to a school that is mixed [racially]. When you go to a ghetto school, where it is all black, you feel like you just can't get across the railroad tracks. You can see the progress on the other side, but you can't reach it.[30]

After the Brown v. Board of Education decision, a vivid picture is painted by Warren's friend Ben Swig, with whom the Warrens frequently spent December holidays and took summer vacations:

"I've seen blacks come up to him and say, 'How wonderful you are,' and 'We don't know where we'd be without you.' I've heard them say that to him, on the street. I've seen so many of them. They worship him. We've all got to be more understanding. "[31]

The question of whether or how much Warren's beliefs changed is one that will require some careful picking through the interviews. One person in a good position to judge was Lowell Jensen because as a young up-coming attorney in what, decades before, had been Earl Warren's district attorney's office, Lowell studied with fascination how Warren had run it. He taped when he himself was in the same district attorney chair:

I’m sure Warren has changed his mind about some of the things that have been part of his existence at the time he was DA. There was a totally different scene at the time he was DA than when he was Chief Justice. The social kind of world you live in has changed. The structure of government has changed. The kind of county you live in has changed. Things are totally different. And there was a period of time when there became an increasing recognition that the criminal justice system as it was in the Twenties and Thirties really didn't provide levels of protection to people who are charged with crime like it should have.[32]

Summation

The new "method of doing things" today has pretty well proven itself. There are oral history projects covering many subjects and in every state in the Union. But its distinction rests on more than its oral virtue. It returns the history of human events to the human level. The sources created are the perceptions of the men and women who actually made the history happen or who were there as qualified witnesses. Put together, the story develops only as far as the recollections have been preserved from individuals who have occupied varying angles of perception. Even with conscientious attention to that sort of balance, illness and death conspire to prevent a perfectly-rounded story, but it is much more complete than one drawn from collections of papers alone. The finished transcripts are human recall sharpened by questions that are based on whatever multifarious sources are available.

The reminiscences reflect a reality that is not neat and well-ordered. Truth is rarely a symmetrical story With oral history recorded as a series of interviews, the glitches in causation are visible: the accidental coincidences, the serendipities, the misunderstandings combine to pass a budget bill, to elect an official, or to make a decision. Causes are illuminated that lie quite outside structured ideology or the brilliance of organized campaign strategy As the picture develops from one memoir to the next, so do the people, and so does their larger historical context.

Endnotes

  1. Daniel Boorstin, The Americans: The National Experience (New York, 19__), 444. Cf. Also Harold M. Hyman, "No Cheers for the American Law School? A Legal Historian's Complaint, Plea and Modest Proposal," 71 Law Lib. J. 227 (19__).
  2. Earl Warren to Amelia Fry, Sept. 10, 1962.
  3. The Memoirs of Earl Warren (New York, 1977), 243-44.
  4. John P. MacKenzie, "The Warren Court and the Press." The Warren Court, A Critical Analysis (New York: Chelsea House, 1968), p. 113-114.
  5. Albert C. Wollenberg, Two Generations of Public Service (interview with Amelia R. Fry, James Leiby and Sarah Sharp; Regional Oral History Office [hereinafter cited as ROHO], Bancroft Library, University of California, Berkeley, CA, 1981), p. 340.
  6. Charles Wollenberg, "History on tape: The Regional Oral History Office at the Bancroft Library," 54 Calif. Hist. Q., 77 (Spring 1975).
  7. Other libraries where several volumes are deposited including Florida State University, Tallahassee; Harvard College Libraryornia State Library, Hayward, New York University Law Library (complete set); Wilson Library, University of North Carolina; Stanislaus State College; Los Angeles Public Library.
  8. John Weaver, Warren: The Man, The Court, the Era (Boston, 1967); Leo Katcher, Earl Warren: A Political Biography (New York, 1967).
  9. Carey McWilliams, Earl Warren: Views and Episodes (Interview with Amelia R. Fry and Willa Baum, ROHO, Berkeley, CA, 1976).
  10. Ford A. Chatters, View from the Central Valley: The California Legislature, Water, Politics and the State Personnel Board (interview with Amelia R. Fry, ROHO, Berkeley, CA, 1976), p. 74.
  11. Helen R. MacGregor, A Career in Public Service with Earl Warren (interview with Gabrielle Morris, June Hogan and Amelia Fry). ROHO, Berkeley, CA, 1976).
  12. Earl Warren, Conversations with Earl Warren on California Government (interview with Amelia R. Fry et al., ROHO Berkeley, CA 1981), p. 1.
  13. Oscar J. Jahnsen, Enforcing the Law against Gambling, Bootlegging Graft, Fraud, and Subversion, 1922-1942 (interview with Miriam Stein and Alice King, ROHO, Berkeley, CA, 1976), pp. 123-25.
  14. James Rowe, "The Japanese Evacuation Decision," in Japanese-American Evacuation Revisted (interview with Amelia R. Fry, ROHO, Berkeley, CA 1976), Vol. I. P. 3.
  15. Ruth W. Kingman, "The Fair Play Act and Citizen Participation," in Japanese-American Evacuation Revisited (interview with Rosemary Levenson, ROHO, Berkeley, CA, 1976), Vol. II, p. 26.
  16. Op. cit. n. 12 supra. p. 31.
  17. Ibid.
  18. Warren Olney, III, Law Enforcement and Judicial Administration in the Earl Warren Era (interview with Amelia R. Fry and Miriam Stein, ROHO, Berkeley, CA, 1981, p. 94.
  19. Op cit., n. 12, supra, p. 51.
  20. Edmund C. "Pat" Brown, Sr., Earl Warren: Fellow Constitutional Officers (interview with Amelia R. Fry, ROHO, Berkeley, CA, 1979), p. 5.
  21. Ibid., p. 6.
  22. Merrell Farnham Small, The Office of Governor under Earl Warren (interview with Amelia R. Fry, ROHO, Berkeley, CA, 1976), p. 7.
  23. Ibid.
  24. James Roosevelt, "Campaigning for Governor against Earl Warren," in California Democrats in the Earl Warren Era (interview with Amelia R. Fry, ROHO, Berkeley, CA, 1976), p. 7.
  25. Ibid., p. 10.
  26. Benjamin H. Swig, "Shared Social Concerns," in The Warrens: Four Personal Views (interview with Amelia R. Fry, ROHO, Berkeley, Ca, 1976), p. 6.
  27. Louis Finkelstein, "Earl Warren's Inquiry into Talmudic Law," in Earl Warren: The Chief Justiceship (interview with Amelia R. Fry, ROHO, Berkeley, CA, 1977), p. 10.
  28. Ibid., p. 4.
  29. Ibid., p. 12.
  30. Edgar James Patterson, Governor's Mansion Aide to Prison Counselor (interview with Amelia R. Fry, ROHO, Berkeley, CA, 1975).
  31. Swig, op. cit. n. 25 supra, p. 15.
  32. Lowell Jensen, "Reflections of the Alameda County District Attorney," in Perspectives on the Alameda County District Attorney's Office (interview with Miriam Feldgold, ROHO, Berkeley, CA, 1974), Vol. III, p. 15.



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