The dissent led Stewart to conclude that the Chief was the Douglas of the right. He was capable of circulating preposterously wild opinions in order to get press attention. Stewart was fearful that if the Chief's dissent was published, the press would indeed pick up on the notion that the new Chief Justice had accused the Court of encouraging mass murder. Stewart felt that it would be hard for a news reporter to explain that the Court was doing nothing of the kind. A complicated explanation might be cut by editors looking for sensational headlines. The Chief would look silly; the Court would seem bitterly divided.
Further, as the Chief presumably knew, Stewart's majority opinion simply cut back on prosecutors' opportunities to initiate retrials. It didn't ban them completely. Even Brennan's one-trial theory would permit multiple charges for multiple crimes, requiring only that they be presented at one trial. Multiple crimes would hardly be "free," but would make the defendant subject to a much stiffer jail sentence. Prosecutors regularly charged people with multiple counts, one for each alleged crime. That was the deterrent. The Chief was just fiat wrong.
The Chief finally dropped the direct reference to the Speck murders and changed that portion of his dissent to refer to four men breaking into a college dormitory and assaulting six girls. Arguing that the "dignity of the human personality and individuality" called for retribution for each crime, he added: "No court that elevates the individual rights and human dignity of the accused to a high place— as we should do—ought to be so casual as to treat the victims as a single homogenized lump of human clay." He kept in the notion that the accompanying crimes were in effect "free."
The decision was announced April
6, 1970.
For the first time, Burger was alone in dissent.
Two days later, Stewart returned from lunch shortly after
1
p.m
. About ten people, including Thurgood Marshall and one of Burger's secretaries, were clustered about a small black-and-white portable television in his secretary's office. They were watching reports of the Senate vote on Nixon's second attempt to fill the Fortas seat. The nominee was Judge G. Harrold Carswell, now a member of the Fifth Circuit Court of Appeals.
Stewart was not aware that Burger, before his own nomination to be Chief Justice, had suggested to Mitchell that Carswell be promoted from a district to an appeals court judge. Carswell's nomination, like Haynsworth's, had run into difficulties. It had been disclosed that Carswell had said in a
1948
speech that, "Segregation of the races is proper and the only practical and correct way of life in our states. I have always so believed and I shall always so act." He had renounced the speech, but it had triggered a search into his past. The search revealed that Carswell had been involved in a plan to use a federally financed public golf course in Florida as a private segregated club.
His judicial and civil rights record also came under attack. Some legal scholars also stated that he was not fit to sit on the Supreme Court. The Dean of the Yale Law School said that Carswell "presents the most slender credentials [for the Court] of any man put forward in this century." Senator Roman Hruska, a conservative Republican from Nebraska, had inadvertently made the most damaging criticism. 'There are a lot of mediocre judges and people and lawyers," he said, "and they are entitled to
a
little representation, aren't they?"
The group in Stewart's chambers watched a reporter repeat messages relayed from inside the Senate chamber, where no cameras were allowed. Clearly the vote was going to be very close. Spiro Agnew was standing by; as Vice President and presiding officer of the Senate, he would vote to break a tie.
The group chatted excitedly as the voting began. It had been nearly a year since Fortas had resigned. The Court had been waiting for its next member, anxious to see whom Nixon and the Senate would finally send them.
A key Republican voted against the confirmation. Some of those watching in Stewart's office cheered. Stewart said that he didn't want any outbursts.
The vote continued. Another key Republican voted against confirmation. That was it. The final tally was
51
to
45.
The group erupted in exaggerated sighs of relief, hoots and applause.
Stewart, red with fury, shouted at them to quiet down. But he went into his office elated by the vote. Carswell would have been awful for the Court. Nevertheless, Stewart was upset about the racket. It would not be good to have Burger or the press hear that there had been a celebration in Stewart's chambers.
The next day, Nixon asserted angrily: "I will not nominate another Southerner and let him be subjected to the kind of malicious character assassination accorded both Judges Haynsworth and Carswell." The speculation among the Justices and the clerks turned to what Nixon would do now. Who would be his non-Southerner?
Five days after Carswell's defeat, Republican House Minority Leader Gerald R. Ford told a press conference that he would urge that Douglas be impeached. Two days later, he delivered a long, scathing attack on Douglas from the floor of the House. Accusing Douglas of being out of touch with conventional political thought and behavior, Ford claimed that Douglas, in his recent book,
Points of Rebellion,
had endorsed riot and revolution against the "establishment." His voice ringing with moral indignation, Ford thumbed through the latest edition of
Evergreen Review,
a magazine combining social commentary, poetry, fiction and the arts. Douglas had permitted an excerpt from his book to appear in that magazine right next to pictures "perhaps more shocking than the post cards that used to be sold only in the back alleys of Paris and Panama City, Panama."
Ford turned to more serious allegations, using unconfirmed material from F.B.I, and C.I.A. files that had been provided him secretly with the approval of Attorney General Mitchell. Ford raised the specter of Fortas, another corrupt Justice. Ford charged that Douglas, because he served on the Parvin Foundation, was a "well-paid moonlighter for an organization whose ties to the international gambling fraternity have never been sufficiently explored." Ford linked Albert Parvin and his foundation, and by implication Douglas, to "known gambling figures and Mafia types." He also accused Douglas of offering legal advice to the foundation, that is, practicing law while on the federal bench, a possible ground for impeachment.
More than one hundred conservative Congressmen from both parties sponsored a resolution to set up a special bipartisan committee to investigate Douglas. The House Judiciary Committee was assigned to look into the allegations.
With Democrats in control of Congress, Douglas was relatively safe, but he considered the attack an effort to reduce the effectiveness of his "side" of the Court. Intensely political, Douglas had come to Washington in
1936
from teaching at Yale Law School to join and later head the newly created Securities and Exchange Commission. Determined to smash predatory industrial monopolies, Douglas became a member of Roosevelt's inner circle of New Deal activists. In
1939,
at the age of forty, he was appointed to succeed Louis Brandeis on the Supreme Court.
Fearless to a fault, Douglas loved political controversy, taking on "the other side"—big business, environmental polluters, censors, any vested interest—and excoriating them as "powerful, crafty and ruthless." In turn, Douglas had come to expect political counterattacks. In
1953
he survived an impeachment drive launched after he voted to stay the executions of Ethel and Julius Rosenberg (despite his earlier secret votes to deny them a hearing). In
1965,
Douglas's fourth marriage, this time to a twenty-three-year-old, resulted in another impeachment attempt. This time, with Fortas's blood not yet dry, the effort had to be taken seriously.
Douglas needed help, but was unaccustomed to asking for it. He normally remained aloof even from his closest colleagues, and he bothered to charm only the most casual of his acquaintances. With friends he was often cold, impatient, and gruff. He was a loner, unwilling to lobby or influence his colleagues. But he needed help, and his relationship with Black had cooled as Douglas had run through his string of wives. So he turned instead to the best legal defense he could find to fight the impeachment and to organize the documentation for a rebuttal. Douglas called his close friend, Clark Clifford, a former Secretary of Defense under President Johnson. "Nixon has sicked his gorillas on me," he told him. It was the work of Nixon and Mitchell, and Ford was the front man. Douglas knew the administration was willing to play politics with the Court and that it had used "friendly persuasion" to get Fortas off the bench. He asked Clifford to lead the defense. Clifford declined. He reasoned that he was too closely identified with the Democratic Party; the whole thing would look too much like a political brawl. Douglas finally engaged Simon Rifkind, a onetime classmate at Columbia Law School. Rifkind was also a Democrat, but had served as a federal judge for years.
The attacks and investigations preoccupied Douglas. He was now determined to outlast the Nixon presidency. But since there was no forum for him as a Supreme Court Justice to defend himself, he declined public comment. He turned inward and brooded, calling friends late at night. If they succeeded in impeaching and convicting him, what would be left of all the values and freedoms he had fought for all his life? How could the Court remain independent? His "side," already damaged by the departure of Warren and Fortas, would be irreparably weakened. The liberals were in trouble. Black, old and slowing up, had good and bad days. His memory problems cropped up at unpredictable times. Even worse, as Black aged he was becoming more conservative. He was no longer a certain liberal vote.
Marshall was weak—a correct vote, a follower, but no leader, no fighter. He was not one to speak up articulately or forcefully. That left Brennan. "Bill's not a troublemaker," Douglas told an associate. Brennan was indeed a true friend, another correct vote, but really a man of the center, an organizer for the moderate-liberal position. Brennan was too willing to compromise. When things got tough, Douglas felt, Brennan did not stand up for his principles. In
1966,
Brennan hired a University of California at Berkeley law graduate, Michael Tigar, as a clerk. Tigar had been a leading radical activist. When conservative columnists attacked Brennan, it became a political issue. Brennan fired Tigar the week he arrived to start work. As Douglas saw it, Brennan sacrificed the clerk to protect his personal position and his relationships with the moderate and conservative Justices. Douglas called it "scandalous," a "shocking cave-in."
During the impeachment investigation, friends and advisers from the old days would come to have lunch with Douglas, to help develop strategy and to offer suggestions. Douglas was often near tears of outrage. He felt powerless. Always suspicious, he was sure that the investigators would resort to any tactic, no matter how low or even illegal. He was more than ever convinced that his phone was tapped, that his office and perhaps even the conference room were bugged. (Even before Nixon's arrival, he had persuaded Earl Warren to have the conference room checked for listening devices. None was found.)
"Let's take a walk in the hall," Douglas told a friend who had come to discuss strategy. Many times during that year, Douglas came to Brennan's chambers and asked him to walk in the halls to discuss something privately. "I've got to go meet Bill out in the hall," Brennan would say to his clerks, his eyes twinkling. None of the other Justices seemed to take the investigation seriously enough, Douglas thought. Everyone seemed unconcerned.
Nixon wasn't sure that impeachment of Douglas was a very good idea. The evidence was thin, and Burger had signaled him that the attack was not good for the Court. Also, the President was more concerned with foreign affairs, particularly with the military escalation in Southeast Asia.
Later, when Nixon called Mitchell and said Ford should be told to "turn it off," Mitchell indicated that it would be difficult, since he himself had supplied Ford with some ammunition.* But he could put some distance between the administration and the impeachment move in a speech he was about to give to the Bar Association of the District of Columbia.
Mitchell's draft, condemning "irresponsible and malicious" criticism of the Court, was sent to Nixon, who forwarded it to Burger. Burger found it perfectly appropriate. When Burger tried to call the President, who had just given a speech on national television announcing a U.S. military incursion into Cambodia, he couldn't get through, and he decided to drop off the draft with his comments at the White House. Informed that the Chief was at the gate, Nixon invited him to come up.
"I didn't want to disturb you, Mr. President," Burger said, "but I wanted you to know that I think your speech tonight had a sense of history and destiny about it."
Nixon complained that he was already being denounced by his critics.
Burger was reassuring. He told Nixon he was sure both the speech and invasion of Cambodia would be supported by the people. "I think anyone who really listened to what you said will appreciate the guts it took to make the decision," he said. Anyone who thought about it would realize that a shrewd politician like Nixon wouldn't have done