Saturday, August 26, 2006

Honoring Earl Warren

I just read an advance copy of Justice for All, a new biography of Earl Warren by Jim Newton, a reporter for the L.A. Times. It's a good piece of work and quite a fascinating story.

I learned many things I never knew--for example, that Warren's father was an eccentric recluse who was brutally murdered by an unknown assailant during Warren's career as a California district attorney. As Newton points out, when you combine this fact with Warren's subsequent career on the Supreme Court as the justice who helped craft, among other controversial opinions, the Miranda decision that immeasurably strengthened the legal protections afforded criminal defendants, it gives the lie to the glib definition of a neoconservative as "a liberal who's been mugged." If anyone would have had a good excuse for becoming a fire-breathing advocate of "lock-em-up-and-throw-away-the-key" policies, it would have been Earl Warren.

The most impressive story in Newton's book is the tale of how Warren stage-managed the landmark Brown decision that ended school segregation. The case landed in the court's docket just weeks after Warren's arrival (and actually prior to his confirmation by the Senate, since Eisenhower's nomination of Warren was a recess appointment). Thus, it was the first big test as to how he would handle a sharply divided court--an art his predecessor Fred Vinson had never mastered.

The initial survey of opinions among the nine justices made it clear that a 5-to-4 majority favored an end to segregation. But as an experienced politician, Warren knew that a split decision wouldn't truly settle the matter. Instead, it would only encourage southern resistance. So rather than rush to issue a decision, he took months to schmooze, cajole, reason with, and pressure the pro-segregation justices, including Stanley Reed, Thomas Jackson, and Felix Frankfurter. His bottom line: We have the votes to end segregation. But are we going to do it in a way that will divide the country, or are we going to try to unite it? In the end, after much diplomatic arm-twisting and many drafts of the wording of the historic decision, Warren was able to announce--to the astonishment of the world:
We unanimously conclude that in the world of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.
As everybody knows, the unanimity of the Court didn't prevent the white South from resisting integration. But who knows how much worse the subsequent struggles might have been had the Court spoken with a divided, equivocal voice?

The story illustrates Warren's greatest strength. Like Lincoln, he was a remarkably effective reformer--a man operating within the system, flexible in his tactics but firm in his principles, who kept his eye on the main goal and pushed patiently and relentlessly toward it.

One more observation. It's astonishing to read how, in the late 1940s and early 1950s, rising Republican pols like Warren and Richard M. Nixon (whom Warren despised, by the way) routinely decribed themselves as "liberals"--because in those days, they had to if they hoped to get elected. And in the run-up to the 1956 election, before Eisenhower announced his willingness to serve a second term, Earl Warren was widely regarded as the front-runner in the race for the Republican presidential nomination--after the start of his career on the Supreme Court and the issuance of the Brown decision!

Today, half a century later, no Republican interested in a presidential bid will dare to mention the name of Earl Warren except as an epithet.

This summer, the media has reacted with hysteria to the idea that the Democratic party might purge politicians who don't toe an ideological line. Why don't they exhibit the same tender concern over political diversity in the Republican party? Because the Republicans completed their purge thirty years ago--and have been enforcing it ruthlessly ever since.

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