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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 1969evidence
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 1953give
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 Holmesa Justice who was too early
for oral historycorrectly 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 appearedrespectively, 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 himselfwith 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 insome 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
shorethe seashoreand 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 indiscriminatefar-reachingtotal. . . .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 interviewerseach with a different
expertisesitting 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" wayi.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
Piazziread 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
ita policy of moving the cases as rapidly as it
was possible to move them. . . . But the pressure was
always kept on ushe 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 Saturdayexpected 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 todaythe
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 outsidehe thoughtthe 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 sayin
headlines talking to ten million people in this statesay
"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 aheadmaybe 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 aboutwas 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 reformand
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 Louisianaa far cry from Warren's hometown of
unsegregated Bakersfieldand 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 feelyour
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:
Im 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
- 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__).
- Earl Warren
to Amelia Fry, Sept. 10, 1962.
- The
Memoirs of Earl Warren (New York, 1977), 243-44.
- John P.
MacKenzie, "The Warren Court and the Press." The
Warren Court, A Critical Analysis (New York: Chelsea
House, 1968), p. 113-114.
- 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.
- Charles
Wollenberg, "History on tape: The Regional Oral History
Office at the Bancroft Library," 54 Calif. Hist.
Q., 77 (Spring 1975).
- 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.
- John Weaver,
Warren: The Man, The Court, the Era (Boston,
1967); Leo Katcher, Earl Warren: A Political Biography
(New York, 1967).
- Carey McWilliams,
Earl Warren: Views and Episodes (Interview with
Amelia R. Fry and Willa Baum, ROHO, Berkeley, CA, 1976).
- 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.
- Helen R.
MacGregor, A Career in Public Service with Earl Warren
(interview with Gabrielle Morris, June Hogan and Amelia
Fry). ROHO, Berkeley, CA, 1976).
- Earl Warren,
Conversations with Earl Warren on California Government
(interview with Amelia R. Fry et al., ROHO Berkeley,
CA 1981), p. 1.
- 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.
- James Rowe,
"The Japanese Evacuation Decision," in Japanese-American
Evacuation Revisted (interview with Amelia R. Fry,
ROHO, Berkeley, CA 1976), Vol. I. P. 3.
- 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.
- Op.
cit. n. 12 supra. p. 31.
- Ibid.
- 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.
- Op cit.,
n. 12, supra, p. 51.
- Edmund
C. "Pat" Brown, Sr., Earl Warren: Fellow Constitutional
Officers (interview with Amelia R. Fry, ROHO, Berkeley,
CA, 1979), p. 5.
- Ibid.,
p. 6.
- Merrell
Farnham Small, The Office of Governor under Earl
Warren (interview with Amelia R. Fry, ROHO, Berkeley,
CA, 1976), p. 7.
- Ibid.
- 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.
- Ibid.,
p. 10.
- Benjamin
H. Swig, "Shared Social Concerns," in The Warrens:
Four Personal Views (interview with Amelia R. Fry,
ROHO, Berkeley, Ca, 1976), p. 6.
- 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.
- Ibid.,
p. 4.
- Ibid.,
p. 12.
- Edgar James
Patterson, Governor's Mansion Aide to Prison Counselor
(interview with Amelia R. Fry, ROHO, Berkeley, CA, 1975).
- Swig, op.
cit. n. 25 supra, p. 15.
- 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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