Other times Douglas appeared disoriented. Once Datcher left him sitting in his wheelchair in the middle of the hallway. He sat alone, quiet, helpless. White passed by and said hello. There was no response. White moved closer to Douglas. "It's me, Bryon," White said, bringing his face close to Douglas's. Still Douglas gave no reply.
Burger suggested in a memo to Douglas that he would find Earl Warren's old chambers more "commodious" than his own. But in Douglas's view Warren's chambers were largely ceremonial. The two tiny rooms adjoining the main room were not large enough to house a full staff, much less
a
working Justice. Douglas replied in a memo to the Chief. The chambers he currently occupied were sufficiently "commodious," he said, repeating the word "commodious" several times. "This will let him know I'm still around," he told a clerk.
Douglas had the law on retired Justices researched. When Franklin Roosevelt tried to pack the Supreme Court in
1937,
he proposed a law allowing the President to appoint a new member to the Supreme Court whenever
a
sitting Justice reached the age of seventy. The plan failed, but a law passed providing for the retirement of Justices. It specified that any Justice who had served ten years or more and had reached the age of seventy "may retain his office but retire from regular active service." A retired Justice could continue to receive his salary and, under the law, might be given judicial duties by the Chief Justice "when designated and assigned."
Douglas decided to designate and assign himself.
By the end of December, the committee
per curiam
opinion in the campaign finance case was almost ready to come down, but Burger had still not completed the preamble.
Powell was concerned about the delay. Both
The New York Times
and
The Washington Post,
which Powell followed closely, had pointed out editorially the need for a decision before the $6 million was due to be paid. Burger was just as unhappy. The committee
per curiam
was terrible. The Chief circulated a memo saying the Court would regret the decision to uphold three of the four major parts of the act. Eventually, he watered down the memo into a dissent. Nevertheless, the Chief had drafted a preamble for the committee, though his own negative conclusions about the law dominated his discussion.
When Brennan received the preamble, he had a clerk edit it extensively. There was little time, but Brennan realized he could not return the revised version to Burger with corrections and edits in the clerk's handwriting. So he reworked them in his own handwriting.
Although Douglas also
continued work on the campaign
finance case, he found th
at he was being ignored. In the
past, the other Justices h
ad treated his memos and drafts
with respect, and had sent him their drafts and memos.
Now they were acting as if he weren't the
re. He wrote a
memorandum to the Con
ference from "Mr. Justice Doug
las." He began, "I discus
s in this memorandum the merits
of the Federal Election Cam
paign Act cases. I also discuss
aspects of the status of a retired justice "
Douglas recounted the history of the law that provided for retired Justices, and branded the effort to exclude him "much more mischevious
[sic]
than the Roosevelt [Court packing] plan. It tends to denigrate Associate Justices who 'retire,' " Douglas said. "Beyond that is the mischief in selecting the occasion when a Justice will be allowed to hear and decide cases." Calling his exclusion "a practice in politics," Douglas said, "The Court is the last place for political maneuvering."
He contended that by trying to participate in the campaign finance case, he was just doing his job, proposing nothing new or radical. "The break with tradition would come if for some reason, best known to a conference, a justice who had participated in bringing a case here and had done all the work on the case, including hearing oral argument, could be eased out of a final and ultimate action on the case."
Turning to the case, Douglas argued that a campaign finance law that provided public money to candidates with large popular support helped to preserve the party in power. He had substantial doubts about both the spending and contribution limits.
History shows that financial power and political power eventually merge and unite to do their work together. . . . The federal bureaucracy at the present time is effectively under the control of the corporate and moneyed interests of the nation. A new party formed to oust the hold that the corporate and financial interests have is presently by the terms of this act unqualified to get a dime.
The memo ran thirteen pages. Douglas told his part-time clerk that he intended to publish it as a dissent when the campaign finance case was announced. The clerk alerted Stewart, White and Brennan. Finally Brennan agreed to speak with Douglas. Fortas also came to talk to him. Later Fortas told a clerk that if he were Chief Justice and Douglas tried to come back and sit on a case, he would send Douglas a memo saying: "Dear Bill, You're off the Court so forget about it."
But Douglas would not listen to anyone. He ordered his clerk to take the draft opinion to the printer and circulate it to the other Justices. The clerk stalled, but Douglas insisted and got it printed.
The clerk later took one copy around to each chamber.
Stewart read the memo. It was classic Douglas—blowing the whistle on the "mischief" of his colleagues and on the "corporate and moneyed interests." But it had none of the polish or punch of the old Douglas dissents, only the frenzy.
"Bill is like an old firehouse dog," Burger told
a
clerk,
"too old to run along with the trucks, but his ears prick up just the same."
The conference finally set January
30
for the announcement of the decision. Learning of the date, Douglas summoned his clerk and told him to get the opinion out.
"I won't do it," the clerk replied.
Red-faced, Douglas stared at him. "You are a traitor," he said, his pale-blue eyes rendering an icy judgment. "I will get it down there myself."
The clerk left the room and sent a note to White: "The tenth member of the Court wants to release his opinion."
Reluctantly, the conference knew it must mobilize immediately. Court officials were told to ignore Douglas's requests for help.
Thwarted at every turn, Douglas finally gave up.
The Court opinion, with separate concurrences and dissents by everyone except Brennan, Stewart and Powell was a book-length
237
pages. Brennan could not recall a single opinion that had been longer or heavier, and he joked with Burger in the robing room about who should carry it out. The official summary reported the decision as the work of an eight-man court.
After the decision was announced, White got a call from Ethel Kennedy, the widow of Senator Robert Kennedy. She was very upset over the decision and claimed that it would ruin the political parties, ruin reform, ruin everything.
"But Ethel," White said, "you don't understand what this really means." He joked that if the majority had done what he had wanted, the expenditure limits would have been upheld. That would have made it impossible for wealthy individuals or families such as the Kennedys to spend virtually unlimited amounts on their campaigns, as they had done in the past
President Ford and his White House advisers realized that the selection of a successor for Douglas would be a very delicate matter, given Ford's role as leader of the unsuccessful move to impeach Douglas six years earlier. And, since he was the only unelected President in history, the Democrats on the Senate Judiciary Committee might make any nomination by Ford a political issue. He had to find someone quickly and get the person confirmed before the
1976
presidential primary campaigns.
Ford knew he could not replace the Court's greatest liberal with a political crony or a notorious conservative. But despite speculation about the appointment of Carla Hills, Ford's list of possible nominees grew to ten names— the others all men—including Solicitor General Robert Bork and an old Ford friend from Michigan, Republican Senator Robert Griffin. Burger sent a name to the White House—J. Clifford Wallace, a well-known conservative judge from the West Coast.
Ford ruled out Senator Griffin. He would not leave himself open to charges of cronyism. Similarly, Hills, his Secretary of Housing and Urban Development, would look too much like a political appointment. Bork would have been ideal, but his role in firing the first Watergate Special Prosecutor, Archibald Cox, in
1973
made him too controversial.
Ford finally concluded the best choice would be a sitting judge, someone virtually unknown who had worked with distinction for years on the federal bench. The list narrowed to two.
Judge Arlin M. Adams of the Third Circuit Court of Appeals in Philadelphia had nearly been nominated for the seat Rehnquist got in
1971.
Nixon, in fact, had promised him a Court appointment, but Attorney General Mitchell had vetoed it because of Adams's handling of the case of Catholic anti
-
war activist Daniel Berrigan. The other prospect was John Paul Stevens, a fifty-five-year-old judge on the Seventh Circuit in Chicago. Ford's Attorney General, Edward Levi, a former dean of the University of Chicago Law School, was enthusiastic about Stevens. The Bar Association committee had given both the highest recommendation. Ford had recently met both men at a White House reception and had read some of their opinions. Adams was probably the more intelligent and more self-confident, at times flashy. Stevens was a small, modest man from the Midwest, more workmanlike, solid, a man of subtle humor.
While Stevens was in private practice, before his nomination to the Court of Appeals in
1970,
an opposing attorney noticed that Stevens always wore bow ties and implied that lawyers who wore clip-on bow ties could not be trusted. Stevens quietly stood up, slowly untied his regular bow tie, and retied it, all without saying a word.
A former law partner considered Stevens a lawyer's lawyer, and on the appeals court Stevens had been thought of as a judge's judge. He was noted both for thoroughness and for his sophisticated arguments.
On the basis of a few moments of small talk, Ford had preferred Stevens. Stevens also seemed to have no partisan politics, no strict ideology. His anonymity would ensure a quick confirmation.
Stevens was working in his twenty-sixth-floor office in the Federal Courthouse in Chicago when the phone rang. He had told his clerks that he would take no telephone calls. He was trying to focus on
a
complicated patent case. "You might want to take this one," the clerk said. "It's the White House."
Stevens picked up the phone. President Ford greeted him warmly.
"How are you?" Stevens asked.
Ford said he was fine. He asked how Stevens was.
"To tell you the truth, I'm
a
little nervous talking to you."
Ford mentioned their meeting at the White House reception. "Unless you have some objection, I intend to nominate you for the Supreme Court."
Stevens was overwhelmed. He thanked Ford. While he hoped it didn't appear rash or incautious, he accepted.
Ford said he would announce the nomination that afternoon from the White House.
After saying goodbye, Stevens took
a
walk alone and then went to see his mother. He was pleased to be nominated to succeed Douglas. After graduating first in his class from Northwestern Law School, Stevens had clerked at the Supreme Court for Justice Wiley Rutledge in
1947.
Douglas had, at that point, already been a Supreme Court Justice for eight years. Stevens greatly admired Douglas.
Stevens's nomination was well received in Washington. The Senate Judiciary Committee quickly requested voluminous information about his personal, financial, academic, legal and judicial background. "I've gone through discovery in antitrust hearings," Stevens told his clerks as he compiled his records, "but never anything like this."
His net worth was
$171,000,
including a
$125,000
house, two cars, and one airplane.
The hearings on his nomination opened uneventfully on December
8.
The Committee consensus held that Stevens was an obscure, scholarly, thoughtful lawyer and judge. Two days later, he was confirmed by the full Senate
98
to 0
.
At the Court, Burger began preparations for Stevens's arrival. President Ford had said he would attend the swearing-in ceremony. The Chief wanted it to go perfectly. When the Court carpenter told him the new chair being prepared for Stevens wouldn't be ready on time, Burger said, "I have ruled that it will be done on time."