Ehrlichman came down from his second-floor office in the West Wing. Nixon introduced them. "Judge Burger has brought with him an article that is excellent. Make sure that copies are circulated to others on the White House staff," Nixon said. He added that Burger had constructive, solid ideas on the judicial system as well as for their anti-crime campaign. Judge Burger was a man who had done his homework. "Please make an appointment with him to talk," the President said, "and put into effect what he says." The chat had turned into a seventy-minute meeting.
Ehrlichman left, concluding that if ever a man was campaigning for elevation in the judiciary, it was Warren Burger. He was perfect, clearly politically astute, and he was pushing all the right buttons for the President. Burger and Ehrlichman never had their follow-up meeting, but from press accounts and bar association talk, Burger knew that Nixon had designated Attorney General John Mitchell, his former campaign manager and law partner, to help find him new judges, including a new Chief Justice.
Mitchell, Burger understood, was the "heavy hitter," the one closest to the President. Privately, Burger had expressed doubts to friends whether a New York bond lawyer had the experience to be the nation's top law-enforcement officer.
On February
18,
Mitchell asked for Burger's help. Shortly thereafter, Burger called at his office in the Justice Department. Knowing that Burger had numerous contacts in legal and judicial circles, Mitchell sought recommendations for nominees to the federal bench. Burger offered some names, and Mitchell wrote down the suggestions. Richard Kleindienst, Mitchell's deputy, sat in on the end of the hour-long meeting. After Burger left, Mitchell remarked, "In my opinion there goes the next Chief Justice of the United States."
A month passed. On April
4,
Burger wrote a letter to Mitchell on his personal stationery. "In one of our early conversations you asked me to give you my observations on District Judges and others over the country
,
who might warrant consideration for appointment or promotion," Burger said. He offered three immediate suggestions, adding that "each of these men is especially well qualified." One of the three names he sent was a federal district judge in Florida, G. Harrold Carswell. Burger also promised to send along other recommendations "from time to time." Mitchell responded with a thank-you note the same day. Later that month, Burger received an invitation to a White House dinner that the President would give on April
23
to honor Chief Justice Warren.
Burger arrived with his wife at the White House early to have time to look over the guest list. All the important
Republicans were there, including Vice President Spiro Agnew, as well as all the Associate Justices of the Supreme Court. Burger was the only lower court judge invited. "If you get a feeling they're looking us over," he told his wife, "act natural."
Supreme Court Justice John Harlan, a conservative Eisenhower appointee, greeted Burger. "I'm glad you're here," he said warmly.
The President's toast to Warren was glowing, and Warren in turn rose to praise Nixon. He was concluding his forty years of public service, he said, with "no malice in my heart."
The next day, Burger's long-time arch
-
enemy on the appeals court, liberal Chief Judge David L. Bazelon, approached him. Cordially, he pointed out that Burger was the only district or circuit judge at the dinner. "Looks like you're it," Bazelon said.
"No," Burger said, brushing off his old adversary. To Burger, the fifty-nine-year-old Bazelon was a meddler—the self-appointed protector of every racial minority, poor person and criminal defendant.
But Washington reporters had also picked up the possible significance of Burger's White House invitation and began asking him about it. Burger was humble. He neither knew nor expected anything. Asked about other candidates for Chief Justice whose names were making the rounds, such as Secretary of State William Rogers, Burger downgraded each one. "No, no," he would tell reporters confidentially, "he wouldn't be good." The media made Burger a dark-horse candidate, but there was still a frontrunner— Associate Justice Potter Stewart.
A week later, the morning of Wednesday, April
30,
Stewart arrived at the Supreme Court late. He hated starting early. Stewart had impressive academic and establishment credentials. Born into a distinguished and wealthy family of Ohio Republicans, he had studied at Hotchkiss and Yale University, where he was Phi Beta Kappa and the editor of the
Yale Daily News,
before enrolling at Yale Law School, where he was a top student. At age thirty-nine he was appointed by Eisenhower to the Sixth Circuit Court of Appeals. "I can promise you he is not too old," a leading Senate supporter had said. Stewart quickly came to love the work. He remarked that it involved "all the fun of practicing law without the bother of clients." Four years later, in late
1958,
Eisenh
ower elevated Stewart to the Su
preme Court, one of the youngest Justices in history. For a decade, he had dissented from most of the major Warren Court opinions. Now, at fifty-four, he was at his prime, perhaps ready for the final step.
That morning Stewart went straight to his chambers, staring at the marble floor, by habit avoiding eye contact with those he met along the way. A shy man, Stewart was of average height and build, with thin bro
wn hair combed straight back fro
m a receding hairline. In the men's club atmosphere of the Court, Stewart had found a comfortable shelter. The job was nearly perfect, providing both the prominence of a high government post and intellectual satisfaction, without over
-
exertion. Reaching his chambers, he called John Ehrlichman at the White House. Stewart said he wanted a brief appointment with the President.
Ehrlichman called back shortly. Would three o'clock be okay? He fished for a clue, saying that he had told the President only that it was some matter involving the Court. "Was that enough to tell him?"
Yes, that was enough, Stewart said. Now he was committed to meet with the President, but he still had several hours to think. Stewart knew that he had supporters from Ohio, the Middle West and in G.O.P. circles, who were urging that he be made Chief Justice. But did he really want it? Admittedly, he was ambitious, and there had been a certain natural progression to his career, always up, always the best. If he got the job, the new era would become "the Stewart Court." Technically, the Chief was only first among equals, but the post of Chief Justice had definite prestige.
On the other hand, the Chief's vote counted no more than that of any of the other eight Justices. The Chief also had the additional chores of administering the Court and managing the building. In terms of pure lawyering, it was better to be an Associate Justice. All law and no nonsense. Did he want to be involved in all the tedious little decisions? To oversee committees and groups like the Judicial Conference, which was a "board of directors" of the federal judiciary and the judges' lobby? No, he concluded, he did not want to be bothered. If he got the job of Chief, he would rarely see his family and have even less time to relax. His summers at his Bowen Brook Farm in New Hampshire would be disrupted. On a superficial level, there were big plusses. On a deeper level, there were not so many. Less law. More bureaucracy.
There were other considerations. Stewart had seen what President Johnson's feeble attempt to get his friend Abe Fortas moved from Associate to Chief had done to the Court. There had been other troubled times when Associates had been promoted. Stewart thought two of the most unharmonious times at the Court had been in
1910,
when Justice Edward D. White had been made Chief, and again in
1941,
when Justice Harlan Fiske Stone was elevated above his peers.
The process of getting confirmed might be both contentious and some fun, Stewart thought. A likely target for critics might be his
1964
opinion ruling that a French film,
The Lovers,
was not hard-core pornography
(Jacobellis v. Ohio).
He could not define obscenity, he had written, but "I know it when I see it." It might not be the height of legal sophistication, but the remark expressed Stewart's Middle Western pragmatism.
The biggest adjustment would be a loss of privacy. Associate Justices could live private and relatively anonymous lives. Stewart could walk about Washington unnoticed, eat lunch without interruption. There were few autograph seekers. That would change. The job of Chief was considered by some to be the most powerful position after the presidency. There would be another F.B.I, check, a Senate investigation, and hearings before the Senate Judiciary Committee. The press would become more interested in him. He would be in the limelight. And when he got down to it, that was perhaps the biggest problem. When he had been nominated for the Court in
1958,
then Deputy Attorney General William Rogers had asked Stewart if there was anything in his past that might embarrass him or the administration. Stewart had thought of some things—an editorial he had written for the
Yale Daily News
endorsing Democrat Franklin D. Roosevelt for President in
1936;
or perhaps that particularly drunken evening in his sophomore year. But nothing serious. Now it was a little different. Was it fair to his family? Would he have to wonder whether his private business might appear in the newspapers, if only in a gossip column?
Stewart left his chambers in plenty of time to be at the White House before
3
p.m
. His stomach knotted as he drove through the Washington traffic. He was being awfully presumptuous. The President had not offered him the job. But if he took himself out of the running, he wouldn't have to deal with temptation if it came. If the position were actually offered, it would be harder to say no. Stewart drove through the White House gates and was escorted into the Oval Office.
Nixon greeted him warmly.
Stewart said that it had been a great thing for the President to have had the dinner for Warren.
The President talked about whom he might pick as his Chief Justice. "Potter," Nixon said, "there has been an awful lot of support for you."
Stewart said he knew that there had been speculation, the inevitable lists. But he had come, he said, to tell the President that he didn't want it, that he didn't want to be considered, that he wanted to be out of the running.
"Why?" Nixon asked in surprise.
Stewart recited his speech. In his opinion there were inherent, perhaps insurmountable, problems in promoting one of the sitting Justices. Historically it had not worked. The Chief Justice had a special role to play as leader of the Court and it might disturb relationships that had been worked out over the years to appoint one of the eight Associates to be Chief. Promoting a sitting Justice would not be the best way, Stewart said.
Nixon paused. "Let me remember who is on the Court," he said. First he mentioned the hapless Fortas. Nixon looked at Stewart. Slowly he listed the others.
Fortas, Stewart thought? Was the President thinking of appointing Fortas? No, absolutely not; out of the question. But Stewart realized it was possible that Nixon was thinking of another sitting member. The only other Republican was John Harlan, but he was almost seventy and nearly blind. Perhaps Nixon was thinking of a Democrat?
Stewart mentioned that Roosevelt had elevated Harlan Stone, a Republican, to Chief Justice on the eve of World War II as a nonpartisan act of national unity. Maybe that wouldn't be a bad idea, appointing a Democrat.
Nixon went down the list of Democrats. There was William Brennan, who had been appointed by Eisenhower, and there was Bryon White
..
. could Nixon be thinking of White? Unlikely. White had been a Kennedy appointee, and Stewart knew what Nixon thought of the Kennedys.
Then Nixon mentioned Fortas again. Why? Stewart wondered. Why was Nixon bringing up Fortas? Did he want some reaction? Stewart had little to say about Fortas. It was obvious that it had been a mistake for Johnson to attempt the eleventh-hour elevation of his close friend and adviser. It had hurt the Court, had made for strange, uneasy relations among the members. Stewart said it would be better not to put the Court through that again, nominating someone from the ranks. But Stewart was a little uneasy. He mentioned his own position again and, in a general way, the needs and desires of his wife and children, their high regard for privacy. "It would be unfair to my family," he said.
Nixon said he understood. He asked more questions about the Court and its members. He was keenly interested, concerned about the federal courts. There was much to do, and as President he wanted to help.
Finally the two men stood and shook hands, and Stewart left. The meeting had taken longer than he had expected, but he felt a sense of relief.
As he drove back, Stewart regretted that he had given phony reasons for taking himself out, but it had been necessary to protect his family. It was odd the way the President kept bringing Fortas up. What was that about? Stewart wasn't sure he had done the right thing, but he felt better than he had felt in a long while.