The most remarkable deathbed scene in American politics occurred on July 9, 1974. Earl Warren, the former chief justice of the U.S. Supreme Court, had but a few more hours left on earth, after a storied life advancing civil rights and liberties. Yet as Warren prepared to meet his end, his dying wish was to strike one last blow in his unrelenting, 30-year feud with Richard Nixon.
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Two of Warren’s former colleagues, Justices William Douglas and William Brennan, stood by the dying man’s bedside. Warren grasped Douglas’s hand. The Supreme Court must rule for the Watergate special prosecutor in the ongoing legal struggle over Nixon’s White House tapes, he told the two justices.
The president had declined to comply with a lower court’s order. “If Nixon gets away with that, then Nixon makes the law as he goes along – not the Congress nor the courts,” Warren said. “The old Court you and I served so long will not be worthy of its traditions if Nixon can twist, turn and fashion the law.”
The two men nodded gravely. For years they had watched as the feud between Warren and Nixon evolved from a grudge match between Californians until it poisoned and polarized Supreme Court politics, on and off the bench. They promised they would not let Warren down.
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No sooner had President Donald Trump named Judge Neil Gorsuch as his candidate for the U.S. Supreme Court than Carla Severino, chief counsel and director of policy with the conservative Judicial Crisis Network, took to NPR to blame the dismal state of confirmation politics, and the factional disposition of the nation’s highest court, on the Democrats’ behavior during the confirmation hearings for Judge Robert Bork.
It is an excusable mistake. Senator Edward Kennedy was rough on Bork, whose nomination to the Supreme Court by Ronald Reagan failed in 1987. “Bork’s America,” the senator famously declared, was “a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and “rogue police could break down citizens" doors in midnight raids.” A fresh verb found its way into the dictionaries: to bork, or “obstruct through systematic defamation or vilification.”
But the toxicity of today’s nomination politics goes back past Bork, and reached a head with the vendetta between Warren and Nixon, two 20th-century California Republicans. The feud lasted decades, sowing precedents for the nasty brawls that followed. It started during Nixon’s first political campaign, and lasted to that grim scene at Warren’s bedside. It still reverberates today.
Their enmity dated to 1946, when Warren was the governor of California and Lieutenant Commander Nixon, home from war and service in the Navy, declared his candidacy for the Los Angeles-area congressional seat held by Democratic Representative Jerry Voorhis.
Warren was a progressive Republican who won by appealing to Democrats and Independents in a state that then favored non-partisan politics. He had nice things to say about Voorhis, who had helped represent California’s interests in Congress. When Nixon sought to have Harold Stassen, a Republican presidential hopeful, come to California and campaign for him, Warren—who had his own national ambitions—persuaded Stassen to stay away.
Nixon defeated Voorhis, but never forgot what Warren had done. “Right then, a slow burn was kindled in Richard Nixon,” campaign aide Bill Arnold, recalled.
The slow burn blazed in 1950, when Nixon ran a successful Red-baiting campaign for the U.S. Senate against his Democratic opponent— Helen Gahagan Douglas - and Warren refused to endorse him. Nixon and his friends were outraged. “Unless a man is a crook he is entitled to the united support of the party he represents,” Nixon’s mentor, banker Herman Perry, wrote the congressman. Warren’s actions would “not go well with me and 80 percent of the real Republicans.”
When Warren stumbled during the Republican presidential primaries in 1952, Nixon’s wife, Pat, gloated in a letter to a friend. “Warren’s showing in Oregon was sad,” she wrote. “I’m not crying.”
Nixon himself went further. He boarded the Warren campaign train as it made its way from Sacramento to the Republican convention in Chicago, and stealthily urged California’s delegates to support the governor’s rival, General Dwight Eisenhower. The episode became known in state political lore as “The Great Train Robbery.” At the convention, Nixon was tireless, securing the delegation for Ike on the key procedural votes that determined the nomination.
Warren, fuming, sent an envoy to Eisenhower. “We have a traitor in our delegation,” he charged. “It’s Nixon.” But Ike declined to act. In fact, he told the envoy, Nixon was likely to be the general’s running mate. For “keeping the California delegation in line,” Nixon had been given a place atop the short list, Eisenhower’s campaign manager later confirmed.
The feuding reached full boil. At the California delegation caucus, Warren thanked his supporters for their help and publicly snubbed Nixon. “The slight was perfectly obvious, as it was intended to be,” one of Nixon’s friends recorded in a diary. Warren believed that “Dick was trying to sabotage him.”
From that day forward, “Warren hated Nixon,” longtime Republican fundraiser Asa Call remembered in an oral history. Over the years, Warren would tell people how “Nixon cut my throat from here to here,” and gesture with his finger across his neck.
So it was that reporters, traveling to California to write profiles of the new vice presidential candidate, found that Warren loyalists were eager to tattle. They dished the dirt on how Nixon’s friends arranged to have wealthy donors pay for his personal and political obligations.
“All is not well,” Perry warned a friend. “Some of the Warrenites would be tickled to death to see Dick lose.”
In late September, the then-liberal New York Post reported that “Secret Rich Men’s Trust Fund Keeps Nixon in Style Far Beyond His Salary.” The story was hyped, but sired an election-year scandal that grew with stunning speed and impact. Only Nixon’s convincing appearance on national television – in which he, famously, spoke cloyingly of his family’s cocker spaniel Checkers – saved his career.
The feuding subsided once Eisenhower appointed Warren to lead the Supreme Court in 1953. There was little that the new chief justice and vice president could do to each other that would not look unseemly. But then Nixon lost the 1960 presidential election to John F. Kennedy and sought to make a comeback by running for Warren’s old job as governor in California in 1962.
Warren wielded the stiletto. He traveled to California to pose, warm and smiling, in photographs with Democratic incumbent Gov. Edmund “Pat” Brown, and to tell the press what a great job Brown was doing. He dispatched his son, Earl Warren Jr., to stump the state for Brown, campaigning against Nixon. The chief justice “felt that Nixon double-crossed him in 1952,” Brown recalled in an oral history, and “when Earl hated people, he hated them.” When Nixon lost, Brown remembered, Warren “laughed and laughed and laughed.”
“Tricky,” as Warren liked to call Nixon, then disgraced himself at his “last press conference,” when he told reporters they would not have him “to kick around anymore.” That week, on Air Force One, flying back from Eleanor Roosevelt’s funeral, President Kennedy and Chief Justice Warren were seen giggling like schoolboys as they swapped news accounts of Nixon’s meltdown.
The quarrel ebbed until 1968, when Nixon launched yet another comeback, campaigning for the presidency. The smoldering fuse got fanned, and the resulting detonation transformed the Supreme Court nomination process.
Warren was ready to retire, but didn’t want Nixon to name his successor. He approached President Lyndon Johnson, and reached an agreement to have LBJ’s good friend and adviser, Supreme Court Justice Abe Fortas, promoted to chief justice after just a couple of years on the court.
Nixon would have none of it. Employing the reasoning used by today’s Republicans when they blocked Judge Merrick Garland’s nomination to the court last year, Nixon argued that “a new president with a fresh mandate” should fill the empty seat.
Senate Republicans went to work, filibustered, and blocked the Fortas nomination. Warren was compelled to stay on, with the sour duty of swearing-in Nixon as the 37th president in January 1969.
Senate Democrats, however, seethed at the manner in which Fortas was treated. Their wrath grew downright broiling when reports from the Nixon Justice Department confirmed that Fortas was on a $20,000-a-year retainer from a convicted financier. Fortas resigned in May, and Warren, not getting any younger, finally stepped down from his seat in June. Nixon would now have two seats to fill.
To replace Earl Warren, the president selected Judge Warren Burger as the court’s new chief justice. Burger got Senate approval, but the Republican maneuvering in the Fortas fight had left deep scars. “The Democrats would have had to be saints not to want revenge for the way the Republicans first turned Fortas back as chief justice, then exposed him and drove him from the Court altogether—and no one had never thought of the Democrats as saints,” wrote historian Stephen Ambrose.
Nixon had the opportunity to “stick it to the liberal, Ivy League clique who thought the Court was their own private playground,” advised presidential counselor John Ehrlichman. And so he did, naming Judge Clement Haynsworth of South Carolina to fill the Fortas seat.
Nixon now walked into the same trap twice.
Stealing a page from the Fortas fight, the Democrats raked Haynsworth for financial improprieties. Nixon squealed about the “vicious character assassination” that Haynsworth underwent, but the president was being hoisted by his own petard.
“When Republicans complained that for one hundred years it had been the practice of the Senate to ignore a nominee’s philosophy and judge him only on technical fitness, the Democrats replied that Fortas had been upbraided by Senate conservatives for his liberal decisions,” Ambrose noted. “It was the Republicans who had broken tradition.”
The cycle of blame had begun. The Senate rejected Haynsworth. The stubborn president then named another Southern judge, G. Harrold Carswell of Georgia, whom the Democrats also met with the kind of bruising tactics they took from Nixon’s book.
The Carswell nomination was a dismal one; he was more of a segregationist and less of a jurist than Haynsworth. Carswell was defeated. Today, he is chiefly remembered for the argument made by Senator Roman Hruska, a Nebraska Republican, that there were lots of mediocre people in the United States, and they were entitled to some representation on the Supreme Court too.
The conflicts over the Warren and Fortas seats were much like the Spanish Civil War—a struggle in which outside foes debuted and tested weaponry and tactics they would employ in the frays to come. The era also introduced an issue that, though somewhat tame at the time, would come to consume the nomination process. The moderate jurist who was ultimately approved to fill the Fortas seat, Justice Harry Blackmun, wound up writing the majority opinion in the 1973 abortion case, Roe v. Wade, that has snarled the Supreme Court since.
The clash over Fortas’ seat was one of several vicious quarrels —like those over the invasion of Cambodia, and the publication of the Pentagon Papers—that brought out Nixon’s dark side.
The White House retaliated for the defeat of Haynsworth and Carswell by launching an unsuccessful attempt to have liberal Justice Douglas impeached. And after ending up on the losing end of a Supreme Court ruling when trying to halt publication of leaked secrets in the Pentagon Papers case, Nixon installed an in-house gang of stooges, nicknamed the Plumbers, to investigate, intimidate and defame leakers. It eventually led him to Watergate.
Nixon looked like he’d survive the scandal, until disclosure of his White House taping system led special prosecutor Leon Jaworski to subpoena the potentially incriminating recordings. Nixon claimed an “executive privilege” to keep his tapes and papers private.
So it was that when Justices Douglas and Brennan appeared at Warren’s deathbed in July 1974, they were more than ready to carry out their chief’s last behest.
“If Nixon is not forced to turn over tapes of his conversation with the ring of men who were conversing on their violations of the law, then liberty will soon be dead in this nation,” Warren told them. The Supreme Court had met that very day to confer on the case, they told him. They assured him they would rule against Nixon.
Warren died that night. Two weeks later, a unanimous Supreme Court ruled, in United States v. Nixon, that the president had to surrender his White House tapes to the prosecutors. Two more weeks passed, the tapes were made public, and the fallout compelled Nixon to resign.
But Nixon, who lived another two decades, may have had the last laugh. All in all, he named four justices to the court. After Burger and Blackmun, he chose William Rehnquist and Lewis Powell, conservatives who helped turn the court away from Warren’s progressive course. This exacerbated the split, on and off the bench, between left and right.
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By 1987, when Edward Kennedy led the attack on Bork, he was only following political precedent—much of it set in the battle royal of Warren v. Nixon.