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Examination of how a Robert F. Kennedy administration would have affected American constitutional law

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Title:
Examination of how a Robert F. Kennedy administration would have affected American constitutional law
Alternate title:
Kennedy administration and constitutional law
Creator:
Vigil, Joseph Dean
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Language:
English
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158, [8] leaves : ; 29 cm

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Constitutional law -- United States ( lcsh )
Constitutional law ( fast )
Political and social views ( fast )
United States ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 159-166).
General Note:
Spine title: Kennedy administration and constitutional law.
General Note:
Submitted in partial fulfillment of the requirements for the degree, Master of Arts, Department of Political Science.
Statement of Responsibility:
by Joseph Dean Vigil.

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University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
Resource Identifier:
23351985 ( OCLC )
ocm23351985
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LD1190.L64 1990m .V53 ( lcc )

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EXAMINATION OF HOW A ROBERT F. KENNEDY ADMINISTRATION WOULD HAVE AFFECIED AMERICAN CONSTITUTIONAL LAW by Joseph Dean Vigil B.A., Metropolitan State College of Denver, 1988 A thesis submitted to the Faculty of the Graduate School of the University of Colorado in partial fulfillment of the requirements for the degree of Master of Arts Department of Political Science 1990

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by Joseph Dean Vigil All Rights Reserved

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This thesis for the Master of Arts degree by Joseph Dean Vigil has been approved for the School of Liberal Arts by Glenn Thomas Morris Michael Stuart Cummings

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Vigil, Joseph Dean (M.A., Political Science) How A Robert F. Kennedy Administration Would Have Affected American Constitutional Law Thesis Directed by Associate Professor Glenn Thomas Morris and Associate Professor MichaelCXurunings Tiris thesis examines the effect a Robert F. Kennedy administration would have had on American constitutional law. The research includes an examination of the screening process used for nominating Justices to the United States Supreme Court, an examination of the professional career of Robert F. Kennedy as Attorney Generalof the United States, and an examination of the history of the Supreme Court. The thesis speculates about the candidates whom Robert F. Kennedy would most likely have nominated to the Supreme Court and on the rulings they would have made in watershed cases in the areas of Equal Protection, the Right of Privacy, and the First, Fourth and Fifth Amendments of the United States Constitution. Research included investigation into the fields of American constitutional law, judicial politics, presidential politics, electoral behavior and political theory. Interviews were conducted with former Department of Justice officials who controlled the screening process for federal judges during Robert F. Kennedy's tenure as Attorney General. Interviews were conducted with scholars and professionals in academia. The legal research included briefing and summarizing major cases decided by the United States Supreme Court. It is important that Americans understand the impact judicial appointments have on the quality of life in our society. My personal concern is that American society realize the importance that Robert F. Kennedy had, and would have had, on the quality of American society, under the rubric of American constitutional law. The examination of the screening methodology used by presidents is designed to inspire critical thought about the American political system. The legal research and projection of actual court decisions are designed to make the reader understand the impact judges have on our society. This examination might motivate the people who most need their rights protected to participate more actively in the American political process. The furm roved. its Glenn Thomas Morris Michael Stuart Cummings

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CONTENTS CHAP1ER 1. INTRODUCTION ............................... 1 2. HISTORY AND CAUSE. . . . . . . 7 3. RKF: HE TALKED THE TALK, HEW ALKED THEW ALK .. 21 4. SCREENrnG .................................. 61 The Appointments. . . . . . . 72 Frank Johnson ......................... 74 l Skelly Wright . . . . . . 79 Griffin Bell . . . . . . 87 Arthur Goldberg . . . . . . 89 Abraham Ribicoff . . . . . 93 David Bazelon . . . . . . 94 Paul Freund . . . . . . 97 Louis Oberdorfer . . . . . 98 Robert Morgenthau . . . . . 99 Ramsey Clark . . . . . . 101 Herbert Jack Miller . . . . . 104 Warren Christopher. . . . . . 106 John Douglas . . . . . . 106 Conclusion . . . . . . 107 5. THE APPOINTMENTS . . . . . . 109 Burke Marshall . . . . . . . 114 Archibald Cox... . . . . . . 120 David Bazelon and John Douglas. . . . . 125 6. THE DECISIONS.............................. 135 Equal Protection . . . . . . . 139 7. THE CONCLUSION............................ 148 BIDLIOGRAPHY . . . . . . . . . 159 ..

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CHAPTER ONE INTRODUCTION Robert F. Kennedy was assassinated on June 5, 1968, in Los Angeles. 1bis examination will answer what would have happened had that tragedy never occurred. It is projected by many political analysts that Robert F. Kennedy (RFK) would have gained the Democratic nomination for President, in a long and drawn out fight with Hubert H. Humphrey and Eugene McCarthy. RFK entered the primary season late, after Humphrey and McCarthy had already established their candidacies. Humphrey was given favorite son status as LBJ's successor, and McCarthy was the initial anti-war candidate. Kennedy did not make his decision to seek the nomination untiL March 14, 1968, and announced his candidacy two days later. His campaign staff was quickly assembled and stretched thin. It harnessed an amalgam of energy, motivation, spirit, and belief in purpose, and became focused on Victory. The campaign began to flourish as a multitude of groups, including blacks and Hispanics, anti-war advocates, and JFK loyalists, coalesced to bring a unique identity to it. 1bis coalition became organized by the brain trust of RFK staffers. The campaign quickly established momentum that changed the complexion of the primary season. Following the California primary, Kennedy was behind in the delegate count, but the campaign was pulsating with a winning attitude. Then fate struck a tragic blow. My research shows the majority of uncommitted delegates were ready to move to the Kennedy camp because of his stance continued American involvement in the Vietnam War. In addition, a healthy number of McCarthy delegates were ready to bolt to the Kennedy fold. Interviews I conducted with committed McCarthy delegates show a unanimous readiness to bolt to the Kennedy side, if released by their state delegations. The Democratic Party, fragmented because of American involvement in Vietnam, would have unified behind Kennedy. Within that unified envelope, Hubert Humphrey would have been ready and able to campaign actively for Kennedy in the general election. The toughest battle for RFK would have been to gain the Democratic nomination at the Chicago convention. He would likely have accomplished that feat, and presented American voters a clear choice when opposed by Richard M. Nixon. According to interviews I conducted a

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number of political scientists believe that Robert Kennedy would have handily defeated Nixon in the November general election. A Robert F. Kennedy administration would have been empowered with the ability to change the course of American policy. Under RFK., America would have more quickly ended its direct military involvement in Vietnam. The funds that were spent on the Vietnam War would have been allocated towards more productive endeavors, including a war on domestic poverty. In the area of American Constitutional Law, Robert Kennedy would have had an opportunity to seat four Justices to the United States Supreme Court. Between 1969 and 1971, the Chief Justice retired, and three Associate Justices stepped down. The ability to control the nomination of their successors would have fallen to Robert Kennedy. This presentation will deal with those appointments, and the way they would have furthered the stare decisis of the watershed decisions announced by the Warren Court (1953-1969). The first chapter presents a brief background history concerning the Supreme Court, its conception, and its implementation. The second chapter provides indicia of the ideology and actions of Robert Kennedy, from his days at the University of Virginia Law School, to his tenure as Attorney General of the United States. Chapter three concerns discovery of the screening methodology used in Supreme Court appointments and will present a list of possible nominees. Each nominee will be discussed. Chapter four will announce the probable nominees and the order of their placement on the Supreme Court. Chapter five will examine and analyze watershed decisions handed down since 1969, and project how the Kennedy appointments would have opined on the issues presented in those cases. Chapter six will house the conclusions of the author, and speculate on the importance Robert F. Kennedy would have had on American politics. This presentation is speculative in nature. Within the context of American Constitutional Law, it answers the question, "What would have happened had Robert Kennedy lived?" Critique is invited, for the main purpose is to illustrate how important the selection of Supreme Court appointments is to the quality of American life. The four appointments that Richard Nixon made during his first administration helped to retard or nullify the stare decisis that was presented by the Warren Court. The legacy of those actions is felt today, and will continue to be felt into the next century. In sharp contrast, the projected Kennedy appointments 2

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would have insured the Warren legacy, improving 'the quality of life for American citizens. By law, persons above the age of eighteen, who are properly registered, cannot be denied the right to vote. Registration is important, because it remains the major barrier against the exercise of the franchise. Thirty-eight percent of Americans eligible to register, do not, and that figure is escalating. Americans must be aware of the importance of their franchise. They have a self-interest in whom they elect as Chief Executive. In the area of American jurisprudence, federal judges are appointed to lifetime tenure, during times of good behavior, by the President, with the advice and of the Senate. The check on that authority resides in the franchise of the citizenry. Executive and Senatorial offices are elective. Once the majority of registered voters go to the polls and exercise their franchise, their check and balance is consummated If they fail to examine carefully the candidates and issues, and elect people who fail to meet their needs, the electorate must wait until the next election cycle for redress. In the area of constitutional law, voters are resigned to live under the policies articulated and enforced by the government they have put into office. Minus the use of referendum and recall, their recourse is reduced to civil disobedience. They must accept the judicial appointments made by the President and confirmed by the Senate. The appointments that a President makes to the Supreme Court are of the utmost importance, in terms of longevity of policy. Because of lifetime tenure, the selection of Supreme Court appointments continues the legacy of the president far beyond his actual date of service. Americans utilize more scrutiny when they invest a few thousand dollars in the stock market than they do they vote for presidential candidates. They scrutinize the merits of the stocks and bonds they are investing in, utilizing detailed planning and projection reports, but do not apply the same effort when deciding whom they want to represent them in government. Politicians, and their paid consultants, recognize this fact, and plan their campaign more with an eye on image, not issues. They recognize that even those Americans that do exercise their franchise, have limited knowledge of the government apparatus and the campaign issues. The majority of the electorate does not know the difference between the Constitution and the Declaration of Independence; they do not know the difference between the Senate and the House of Representatives; they do not know what the Bill of Rights is; they do not know what the Judiciary is all about. Polls show that 3

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a majority of Americans thought the Contras were the Sandinistas; that pornography and obscene publications are synonymous; that saluting the flag is more important than solving the national debt crisis. Women must recognize that their right to a medically safe abortion is an issue not only to themselves, but to their daughters. If they vote for a president who will appoint federal judges that do not want to give women the right of choice, they injure their self-interest beyond the term of the particular president. The choice of who interprets justice in this country has an enduring legacy, not simply tied to a four-year term. Judges serve lifetime appointments, during times of good behavior, and will continue to interpret law until their retirement, or death. Minorities must carefully consider whether their choice for Chief Executive will nominate persons to the bench who favor "profile stops." The ability to travel interstate freeways and local thoroughfares with relative freedom has been taken away from blacks and Hispanics, by the Supreme Court. If you are a minority, you are automatically subject to such "profile" stops, by law enforcement officials. Minorities must also consider their choice of president with a watchful eye on their own, and their children's, economic and educational opportunities. The three-tier test used by the Supreme Court to determine the constitutionality of legal classifications is the most misunderstood application of constitutional law. That test will be examined in this thesis. Affirmative action programs, in public education and economic application, are being stripped bare by a majority on the Court. The most recent series of case law handed down by the High Court shows that the new majority, consisting of Reagan and Nixon appointees (and Justice White), no longer considers affirmative action to be constitutionally sound. In addition, legislative attempts to dilute the stare decisis of the Court, such as the Civil Rights Act of 1990, will still be subject to judicial review. Artists from all fields must be concerned with their First Amendment rights to express ideas and exhibit their works. Free speech rights are at the mercy of the opinions of the majority of the Supreme Court. The definition of obscenity has defied responsible application, to the extent that the author of the original opinion, Justice William Brennan, now feels the definition is outside the rubric of constitutionality. Justice Brennan believes that the vagueness of the definition of obscenity it proscribes constitutional application when weighed against First Amendment liberties. Prayer in the public schools is returning as a major issue for 4

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adjudication. In 1962, prayer in public schools was ruled violative of the Establishment Clause of the First Amendment A plurality of justices now feel that prayer can be reintroduced to the public schools. Public funding for nonsecular organizations is finding favor among the same plurality. Once a fifth Justice decides in favor of reducing the absoluteness of the establishment clause, public funding of nonsecular activities will be reintroduced by state legislatures. The Fourth, Fifth and Sixth Amendments concern the rights of the accused. They were proposed and approved because the Framers feared the abuses of an over-zealous state police authority. The Framers wanted to protect the citizenry against the transgressions that occur in an aggressive police state by imposing ten constitutional proscriptions. The exclusionary rule, announced by the Warren Court to apply to the states, forbidding the introduction of illegally obtained evidence, has been radically reduced by recent Court majorities, who Claim a constitutional basis for "good faith exceptions." That majority also fmds that the right to privacy is not among the Ninth and Fourteenth Amendment guarantees, and is an illegal construct of judicial activists. The hollowness of the majority's diatribe is illustrated in its agreement with the decisions that produced the doctrine of judicial review, the "good faith exceptions," and "executive agreements." All three areas are products of judicial activism not found expressly within the Constitution, or the Bill of Rights. Strict constructionists show an intellectual and practical inconsistency by not attacking these judicial constructs with the same passion and vehemence as they do the right to privacy. They show a compulsion to declare violative the stare decisis that they do not agree with; and an equal compulsion to sustain that which they do agree with. The result is, the present majority of the Supreme Court is allowing the expansion of executive authority and police power, and diminishing the individual rights and liberties enjoyed by the citizenry. This is judicial activism at its worst. With the exception of engaging in a nuclear holocaust and bloody wars, the legacy of presidents is felt most in their judicial appointments. The power to appoint individuals for lifetime tenure is awesome. Constitutional scholars debate whether it is the right of the Court to make policy. The fact is, the Supreme Court, and lower federal courts do make policy. That fact endears them to their nominating president, or causes him to write in his memoirs, "that was the worst appointment I ever made." 5

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Some recent appointments, including Chief Justice Warren and Associate Justices Brennan and Blackmun (and to an extent Justice White), have veered from original expectations of their appointing presidents. The proclivities of Justices, no longer subject to political recall, is always an uncertainty. That is why careful scrutiny is applied to the ideology of nominees during the screening process. Chief Justice Rehnquist, Associate Justices Scalia, Kennedy and O'Connor, all met the litmus test of their appointing president, and have proven sincere in following a conservative ideology. Since the appointment of Earl Warren as Chief Justice, in 1953, Justices Harlan, Whittaker, White, Goldberg, Fortas, Marshall, Powell, Rehnquist, Stevens, O'Connor, Scalia and Kennedy, and Chief Justice Burger, have proven consistent with the criterion utilized for their nominations. In the same vein, Justices Brennan and Blackmun, and Chief Justice Warren, have not. The object of this presentation is to examine, within the realm of American Constitutional Law, what would have happened if Robert F. Kennedy had lived. The second phase of the presentation is to illustrate to the reader .the importance of examining the issues of elections, especially the issue of judicial appointments the Chief Executive will make. Judicial politics is the most overlooked issue of elective campaigns, and, perhaps, the most important. Special appreciation is extended to Jack and Juanita Vigil, for their cooperation and tolerance; to Warren "Wally" Weston; Jett Connor; Richard Gebhardt; Joseph Dolan; John Seigenthaler; Walter Sheridan; Glenn Morris; and especially. Mike Cummings, for their professional wisdom. This presentation is dedicated to Robert F. Kennedy and Lobo. 6

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CHAPTER TWO HISTORY AND CAUSE When the Constitutional Convention met in 1787, the debate concentrated on the design of powers which would be manifested in the national government. Paramount to the delegates was the nature that the national legislature and chief executive were to embody. A very limited discussion occurred over the structure of the third branch of government--the judiciary. On May 29, the Convention gained a quorum and was declared by Edmund Randolph "open for business."l The delegates then engaged in passionate debates over the creation and essence of the legislative and executive branches. The eloquence and style of those debates took a great deal of the Convention's time. The delegates finally ended discussion on September 7, after settling arguments concerning the Electoral College and turned full attention to the issue of L1e judiciary.2 The delegates had agreed at the beginning of the Convention that they would sit no longer than September.3 Also, there was growing sentiment at the Convention that the delegates must conclude their work of redrawing the Articles of Confederation and quickly send it to the states for ratification. The need for timely action was salient. They wanted to forward a complete document for ratification before the anti-ratification movement could coalesce and emerge on a unified national level. The wisdom of that sentiment proved itself during the ratification debates. The breadth of the counter movement (Antifederalist) had not achieved the political organization and networking that the pro-ratification (Federalist) movement possessed. Some notable Antifederalists, Elbridge Gerry of Massachusetts, John Lansing and Robert Yates of New York, Luther Martin of Maryland, and George Mason of Virginia, had attended the convention, and their convictions were ably stated in published documents, but their combined pleas failed to persuade those in the states that 1Forrest McDonald, Novus Ordo Sec!orum: The Intellectual Origins of the Constitution (Lawrence, KS: University of Kansas Press, 1985) p. 226. 2Jbid., pp. 252-253. 3Catherine Drinker Bowen, Mirac!e At Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston: Little, Brown and Company, 1986) p. 225.

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finally voted to ratify the Constitution.4 When the document went forth to the states, the Federalists occupied the superior economic positions within American society. This superiority allowed them control of most newspapers, and the concomitant control of news reporting. 5 They distorted news, printed pro ratification literature and censored the arguments of the Antifederalists. Distortion occurred to such a degree that reports were made alleging that Patrick Henry was a staunch proponent of ratification even though he was an adamant and vocal opponent. The superior economic position enjoyed by the Federalists allowed them to create a well-financed campaign organization that carefully and strategically orchestrated the grand scheme for ratification. They exploited their ability to mobilize and maintain support of trend setters and rebutted or suppressed Antifederalist argumentation in the press. The Antifederalists lacked the cohesive organization and the overall ability to mobilize dissenting opinion. They did not have the necessary numbers, economic strength, or time to mount a successful campaign against ratification. 6 Delaware voted unanimously for approval on December 7, 1787. On June 21, 1788, Maryland, South Carolina and New Hampshire voted for ratification, giving the Constitution the necessary nine-state approbation required for adoption. When Virginia and New York voted for the Constitution, the issue of adoption was settled. Virginia was the most populous state in the Union; so its endorsement was necessary for legitimation. During the Virginia debates, Patrick Henry launched into one of his fabled "liberty" soliloquies, laying to rest any misconception that he might be in favor of ratification. He was successfully rebutted by James Madison, author of the Virginia Plan, and chief proponent of the Constitution. 7 The recorded vote, on June 25th, was 89-79, in favor of adoption. New York followed, voting for approbation on July 26th, with a tally of 30-27.8 Finally, North Carolina and Rhode Island voted in favor of adoption, and the issue was completely settled. A Bill of Rights was added by the end of 1791, when Virginia voted in favor of the 4W .B. Allen and Gordon Lloyd, The Essential Antife4eraljst (New York: University Press of America, 1985) pp. 3-73. 5Edward S. Greenberg, The American Political System: A Radical Approach (Boston: Scott, Foresman and Company, 1989) p.63. 6Ibid. 7James MacGregor Bums, James Peltasen, and Thomas Cronin. Government By The People (Englewood Cliffs, NJ: Prentice-Hall, Incorporated, 1990) pp. 15-16. 8Ibid., p. 15. 8

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additional ten amendments that the 1st Congress sent to the states for rati.fication.9 Though the Constitution was now the law of the land, it contained uncenainties regarding the specific powers of the judiciary. The delegates at the Constitutional Convention did not provide elaborate detail on the construction of the judicial branch. The consensus among the delegates was that the judicial branch would be the least powerful of the three branches. There was also belief that it would be the least active branch of govemment.lO Alexander Hamilton addressed this issue in Federalist #78. He stated: ... the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them." 11 Postulating further: ... the judiciary is beyond comparison the weakest of the three departments of power." 12 American history has exposed Hamilton's stated wisdom in the Federalist Papers as faulty. Scholars debate whether Hamilton knew the Supreme Court would occupy a position of tremendous power, and he was trying to suppress an argument against ratification. George Mason advanced an argument that the judiciary was too powerful; it had the ability of judicial review of state law, and was therefore able to nationalize law, taking away states' rights.13 Elbridge Geny, in a letter sent to the Massachusetts General Assembly in late October, 1787, feared the national powers of all three branches, and addressed the judiciary, stating: "My principle objections to the plan are ... that the judicial department will be oppressive ... 14 In retrospect, the distressed claims of Mason and Gerry have proven closer to reality than Hamilton's words in Federalist 78. The Supreme Court has been referred to by many political scientists as a "super legislature." It is the Court of Final Appeals. Its decisions can be overturned in two specific ways: 1) another Court majority can revisit a decision and overturn it; or 2) a constitutional amendment can be passed superseding the decision of the Court. 9Ibid., p. 17. lOMcDonald, p.253. 11Hamilton, Alexander, with John Jay and James Madison, The Federalist: A Commentazy on the Constitution of the United States (New York: Modem Library, 1937) p.504. 12Ibid. 13Allen, pp. 11-12. 14Ibid., p. 21. 9

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The declarations of the Supreme Court affect public policy in several ways. The Court;can mandate certain types of legislation by declaring other pieces of legislation unconstitutional. It can define the parameters of what is constitutionally permissible, in statute law, as well as the practice of custom. If the legislative branch, be it local, state or national, passes an act deemed by the Supreme Court to be repugnant to the Constitution, that act will fall. If custom, such as racial segregation, is deemed inherently unconstitutional, the Court can act to outlaw such de facto systems of behavior, within the public domain. The Court becomes an advisor by issuing opinions on what is acceptable, and what is unacceptable, under its interpretation of the Constitution. In other areas, the Court has developed doctrines affecting the right to privacy; the right of substantive and procedural economic due process; the right to equal protection of the law; the right to suffrage; and foreign policy. Within these broad areas of decisions, an agenda for public policy has been established by the Court. The Court has addressed the ever ripe area of race relations. In Plessy v. Ferguson. 163 U.S. 537 f18961 it established the doctrine of "separate but equal" that ruled America for the next fifty-eight years. Then in Brown v. Board of Education-Topeka. 347 U.S. 483 [19541 the Court declared that Plessy had been wrongly decided and declared "separate but equal" as being constitutionally impermissible. In Griswold v. Connecticut. 381 U.S. 479 f19651 the Court articulated a right to privacy for the first time in a majority decision. The ensuing decision announced in Roe v. Wade. 410 U.S. 113 f19731legalized abortion and nullified the statute law in Texas. Following the Roe decision, states were forced to follow the prescription of trimester formula in order to present a compelling interest in regulating a woman's right to privacy. At present, a plurality of the Court has stated a desire to revisit Roe. If Roe is reversed, states will be free from the edicts of Roe and capable of imposing legislation once again outlawing abortion. In matters of foreign policy, the Court declared that presidential use of "executive agreements" were within the inherent powers of Chief Executive, and Commander in Chief of the armed forces.15 This declaration of power overrides Article II, 2, Clause 2, of the Constitution, which expressly provides for all 15Craig R. Ducat and Harold W. Chase, Constitutional Interpretation (St. Paul, MN: West Publishing Company, 1989) pp. 396-399. 10

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treaties negotiated by the executive to be subject to "advice and consent" of two thirds of the Senate. Justice Sutherland, delivering the opinion of the Court, in United States v. Belmont. 301 U.S. 324 f19371 stated clearly: "Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (article II, ) require the advice and consent of the Senate."16 In a decision issued earlier in the 1937 term, the Court granted plenary power to the President in matters of foreign affairs and national security. In the watershed decision United States v. Curtiss-Wright Export Corporation. 299 U.S. 304 [19371, the Court declared: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary and exclusive power of the President as the sole organ of the government in the field of international relation-a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution. "17 The Supreme Court of the United States, the third branch of government, declared that the executive branch enjoyed plenary powers beyond the scope of the Constitution, and somehow found those powers to exist within the "applicable provisionsofthe Constitution."18 Hamilton, an ardent nationalist, knew the judiciary possessed a potential for nearly omnipotent power in furthering the use of executive prerogative.19 Even when the Court acted to restrict executive power, it actually enhanced it. Contrary to most scholarly opinion, the decision announced in Youngstown Sheet and Tube Company v. Sawyer. 343 U.S. 579 [19521 augmented executive power to the point of articulating when Lockeian prerogative could be used. John Locke states: ... this Power to act according to discretion, for the publick good, without prescription of the Law, and sometimes even against it, 16United States v. Belmont, 301 U.S. 324, 57 S. Ct. 758, 81 L. Ed. 1134. 17United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed., 366, [1937] : 18Ibid. l9Jnterview with Dr. Warren Weston, Professor of Constitutional Law, Metropolitan State College, (Denver, CO: May 15, 1990). 11

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is that which is called Prerogative. "20 The concuning opinion of Justice Jackson, in Youngstown, states: ... when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."21 Justice Jackson's opinion states that when the President acts contrary to Congressional will, "his power is at its lowest ebb. "22 It is then up to the Courts to determinethe legality of the action. If the Courts sustain an executive action taken inconsistent with congressional will, it disables Congress from acting upon the subject This fact allows the executive to act even against the expressed or implied will of Congress. It further allows the Court to judge the action. If the Court adjudicates in favor of the President, it incapacitates Congress from acting on the issue. That situation would establish executive prerogative within the Lockeian definition. Such is the power of the third branch of government. Ordained without great debate, staffed with political appointees, it has become a strong branch of government. Contrary to Hamilton's expressions in Federalist 78, the Supreme Court articulates public policy and is a political arm of the government. It is not independent, but reliant upon the other two branches of government The President :appoints the Justices, and the Senate confirms them. Congress makes positive law but these proclamations must comply with judicial guidelines, or they will fall per ; judicial review. The President executes law, or he is held accountable by the Court for violative behavior. The famous case of United States v. Richard Nixon. 418 U.S. 683 [19741 illustrates how the Court judged a defiantly bold President who placed himself above the law. Rebuffmg Nixon's claim of executive privilege, the Court ordered him to comply with a subpoena duces tecum and turn over documents asked for by the special prosecutor. By slashing away Nixon's veil of 2John Locke, Two Treatises of Government (New York: Cambridge University Press, 1980) p. 422 21Youngstown Sheet and Tube Company v. Sawyer, 343 U.S. 579, 72 S. CL 863, 96 L. Ed., 1153, [1952] 22Ibid. 12

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executive privilege, the Court kept in motion the momentum that eventually led to his disgraceful exit from office. The three branches are separate, but they share power. They interact within the dynamics of the creative tension of checks and balances. To that extent, the Constitutional formula of sharing power has proven remarkably workable over time. The Supreme Court met for the first time on February 2, 1790. Only three of the six justices showed up, in New York City. That term lasted ten days, without a single case coming before it In a matter of four years, Chief Justice John Jay resigned, claiming the court system lacked "energy, weight, and dignity."23 Then, under Chief Justice John Marshall [1801-1835] the providence of the Supreme Court was established. Beginning with the decision in Marbuzy v. Madison. 1 U.S. (Cranch) 137. 2 L. Ed. 60 [18031, where it claimed the inherent power of judicial review, the Supreme Court began an everlasting rise to prominence as the third branch of government. In 1834, French aristocrat Alexis de Toqueville observed: "If I were to ask where I would place the American aristocracy, I should reply without hesitation ... that it occupies the judicial bench and bar ... scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question. "24 The Supreme Court is the third branch of government. Contrary to Alexander Hamilton's exhortations, the Constitution did not create an independent and weak judiciary. Instead, according to Harvard University's Richard Neustadt: .. .it created a government of separated institutions sharing power. "25 This presentation will deal with the nominees Robert F. Kennedy would have appointed to the Supreme Court and the way the lineage of decisions handed down from the Warren Court would have been solidified in American constitutional law by these appointees. While Supreme Court decisions are solidly entrenched in period Constitutional law, it is the legacy, the longevity, of the doctrines established, that determines their final effect The "separate but equal" doctrine is a prime example. Established by the Court in 1896, it lasted until1954, and some 23Henry J. Abraham, The Judicial Process (New York: Oxford University Press, 1986) p. 197. 24Bums, p. 434. 25 Allan J. Cigler and Burdett Loomis, AMERICAN POLffiCS: Classic and Contemporary Readings (Boston: Houghton Mifflin Company, 1989) p. 467. 13

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argue until1969, when the time for "all deliberate speed" was declared over. Another illustration of Court doctrine is the interpretation of economic due process. The initial interpretation was deemed "procedural" due process and articulated in Calder v. Bull. 3 U.S. (3 Dall.) 386. 1 L. Ed. 648 [17981. That interpretation was expanded in Fletcher v. Peck. 10 U.S. (Cranch) 87. 3 L. Ed. 162 [18101, and later, in Trustees of Dartmouth v. Woodward. 17 U.S. (4 Wheaton) 518.4 L. Ed. 629 [18191. In Charles River Bridu v. Warren Bridge. 36 U.S. 01 Pet.) 420. 9 L. Ed. 773 [18371 Chief Justice Taney eroded the procedural doctrine replacing it with a new interpretation stating that henceforth, contracts would be enforced against vested interests and in favor of individuals. After that decision, the contract clause never regained its status as the preeminent deterrent against legislative encroachment on property rights.26 Following the adoption of the Fourteenth Amendment, in 1868, due process took on new meaning. The amendment, a warehouse of libertarian clauses, was dissected in the Slaughterhouse Cases. 83 U.S. Cl6 Wall.) 36. 21 L. Ed. 394[18731, in which a bare majority decided that the privileges and immunity clause did not extend federal guarantees to individual citizens within the states.27 Later in Loan Association v. Topeka. 20 Wall. 655 [1875] and Davidson v. New Orleans. 96 U.S. 97 f18781 the Court again noted there was no foundation for a new interpretation of due process within the Fourteenth Amendment.28 Then, beginning in 1877, came a plethora of cases which twisted through adjudication leading to a new doctrine entitled "substantive" due process. Beginning with Munn v. Illinois. 94 U.S. 113 [1877] where the Court allowed an Illinois rate schedule to stand, it began articulation of the extent to which state police power could be used to regulate private business. The key phrase of Chief Justice Waite was that business could be regulated without violation of the Fourteenth Amendment if it was "clothed with a public interest. "29 Over the next twenty years, cases regarding state regulatory commissions came before a newly constituted Court. Between 1877 and 1890, seven Justices had either died or resigned. Only Justice Field remained from the 26Alpheus Mason, William Beaney and Donald G. Stephenson, American Constitutional Law: Introductory Essays and Selected Cases (Englewood Cliffs, NJ: Prentice-Hall, 1983) p. 299. 27Ibid., p. 303. 28Robert F. Cushman, Leading Constitutional Decisions(Englewood Cliffs, NJ: Prentice-Hall, Inc., 1987) p. 151. 29Ducat, p. 555. 14

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original set of cases and a new articulation of doctrine emerged.30 Substantive due process came to the fore in Chicago. Milwaukee & St. Paul Railroad Company v. Minnesota. 134 U.S. 418 r 1890]. There the Court held reasonableness of a rate must be held up to judicial review if the due process requirements of the Fourteenth Amendment were to be met. 31 This decision removed the legislative branch as the sole organ of government for redress of unjust rates, and supplanted it with the judicial branch. The decision was 6-3, with vigorous dissent. The development of a Court doctrine is exposed in the swirling debate of substantive due process versus procedural due process interpretations. The debate and articulation of doctrine focuses primarily on the ideologies of the Justices who are sitting at the time of decision. The ebb and flow of ruling Court doctrine is married to the majorities that sit in judgment. Most salient in present interpretation of constitutional law is the doctrine of "right to privacy."32 Articulated as far the late nineteenth century, the "right to privacy" has stood as controlling doctrine for the past twenty-five years. It is currently under attack by a plurality of Court members. The Court debate that occurred on interpretation of due process was as strenuous and colorful as it was important in the framing of public policy. Equally, the Court debate on the right to privacy, and the ensuing right to a medically safe abortion for all citizens, will occupy this, and the next, Supreme Court majority. The examples cited provide illustration on the political nature of the Supreme Court, and the importance of controlling doctrine as articulated by differing Court majorities. Econorilic due process took on different meaning when the decision makers of the Slaughterhouse Cases were supplanted with a ney.r majority who revamped the previous doctrine and established a new one in Chicago. M. & St.P R. Co. v. Minnesota [18901. By the end of 1972, the Burger Court was stacked with four Nixon appointees. Their ideological bent has proven analogous to a point-counterpoint debate within stare decisis. The judicially active element of the Warren Court, namely, Justices Douglas, Brennan, Fortas, Marshall, the Chief Justice, and occasionally Justice Black, were systematically replaced with ideological opposites in Justices Stevens, Rehnquist, Burger, and Powell, and eventually O'Connor, 30Mason, pp. 306-307. 31Jbid., pp. 358-359. 32See Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678 [1965], and Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973] 15

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Scalia and Kennedy. While Justices Brennan and Marshall continue to sit on the Court, their power to issue majority opinions has been eliminated by the seven conservative appointees. Only Justice Stevens can be termed a judicial moderate. At times he votes with the liberal bloc.33 Justice White, a JFK appointee, has slid into the conservative mode and rarely votes in favor of civil liberties, individual rights, or affirmative action, instead voting for enhanced state, national and executive powers when those issues are decided. 34 The appointment of Justice Harry M. Blackmon has balanced that of White. While very conservative in his early years on the Court, Justice Blackmun has turned to the liberal side, with his opinion in Roe v. Wade f1972]. He is often referred to by conservatives as the worst appointment Nixon ever made. This narrative correlates to the criticism leveled against Eisenhower for his appointment of Warren as Chief Justice. Eisenhower refers to that appointment as "my biggest damn fool mistake."35 Noteworthy, here, of the brethren that sat on the Warren Court, only Justice Frankfurter shared that sentiment. The dispute between Frankfurter and Warren was more of a personality clash than a legal one; their disputes turned on positions of power within the bench. Warren was the Chief Justice, occupying the highest seat; Frankfurter was an immigrant who spoke no English when he arrived in America, and based his opinions of his brethren upon their intellectual and academic genealogy.36 The relationship between the two decayed to such a point that Frankfurter erupted in a 1958 Court conference, roaring, "You're the worst Chief Justice this country has ever had ... 37 An administration of Robert F. Kennedy would have been able to affect American constitutional law. The Supreme Court of the United States can shape the history of society. The capacity to make judicial appointments to the Supreme Court is one of the most important powers expressly given to the president by the Constitution. Had Robert Kennedy lived and assumed the office of President of the United States, he would have been able to appoint four justices to the Supreme 33Jack W. Peltasen, Understanding the Constitution (New York: Holt, Rinehart and Winston, 1988) p. 31. 34Ibid., p. 32. 35Jack Harrison Pollack, Earl Warren: The Judge Who Changed America (Englewood Cliffs, NJ: Prentice Hall, Inc., 1979) p. 200. 36Leo Katcher, Earl Warren: A Political Biography (New York: McGraw-Hill Book Company, 1967) pp. 414-416. 37Pollack, p. 197. 16

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Court during his first term. Had he gained a second term, he would have been able to appoint at least a fifth justice to the Court. Arguably, that fifth appointment, succeeding Justice William 0. Douglas, could have been made during Kennedy's first term. Douglas and Kennedy had a strong friendship dating back to the Fifties, and it is highly probable an evaluation would have been made of whether RFK would have been able to gain a second term in office. If there had been any perceived threat, Douglas, likely, would have stepped down, allowing Kennedy to name his successor. The issue of judicial decision making will be addressed with Justice William 0. Douglas an active member of the Court. Succinctly, RFK would have had the same opportunity as Nixon to appoint four Justices to the United States Supreme Court during his first term in office (1969-1973). The primary impact the appointments would have had on American constitutional law would have been in decisions rendered from the high bench during what is now known as the Burger Court era (1969-1986). In 1968, one of the planks Richard Nixon's campaign addressed was the decisions handed down during the Warren Court era (1953-1969). Nixon harshly criticized the Court's watershed decisions on criminal rights, civil liberties and racial desegregation. His main attack concentrated on "activism" the judicial branch had engaged in; he argued that the role of the judiciary was strictly to interpret existing law, not to take any initiative. He promised, if elected, to "rebalance" the Court with "strict constructionists. "38 Even though the label "strict constructionist" has become part of American political nomenclature, it defies an absolute definition. For Richard Nixon, it served as a convenient campaign vehicle to attack American liberalism. He pledged, if elected, to bring the Supreme Court under "controi."39 Currently, "strict constructionist" is a colloquialism used by opponents to attack the right of privacy articulated in Roe v. Wade f1972J.40 It is speculation whether Robert F. Kennedy would have defeated Richard Nixon in the presidential election of 1968. These a.priori assumptions are hereby declared. If RFK had not been assassinated, in June, 1968, he would have carried the Democratic Convention in Chicago, and become that party's nominee for the 38John D. Lees, The President and the Supreme Court: New Dea] to (London: British Association for American Studies, 1986) p.30. 39Peltasen, pp. 30-31. 40Jlums, p. 445. 17

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office of President of the United States. McCarthy delegates to the National Convention have expressed unifonnity in their interview statements that their state delegations were ready to move to the Kennedy camp, and would have done so if released by McCarthy, or their state rules committee. They project that effect nationwide.41 While McCarthy was angry at RFK for jumping into the campaign in mid-March, and was not likely to actively support him in a national campaign, his delegates were ready to make a move to Kennedy, at the Chicago convention. By all accounts, Humphrey, labeled a "good soldier," would have actively campaigned for Kennedy, bringing with him hard-line Democrats and fringe party elements who preferred the policies ofLBJ over those ofRFK. It is highly probable Kennedy would have defeated Richard Nixon, in the general election, and could have developed a coalition of such strength to win in a landslide.42 Nixon barely defeated Hubert Humphrey (HHH), with 43.4% to 43% of the popular vote.43 The extraordinary narrowness of that victory margin is exceeded only by JFK's victory over Nixon in 1960. The 1968 election of Nixon was more the result of anti-LBJ feeling, and divisions within the Democratic Party, than anything else. 44 Considering 60.6% of the voting population participated, it is probable that eligible voters of the "counter culture" did not vote because of apathy towards both Humphrey and Nixon. RFK would have garnered their support.45 His campaign activity up to the California primary shows he took stands on the issues of the times. He campaigned for the removal of American troops from Vietnam, and addressed the domestic concerns of stagflation, economic recovery civil rights.46 He carried with him the image of his brother, JFK. The American public was so endeared to JFK that his lowest rating of public 41Interviews with Colorado delegates Warren Weston and George Williams (Denver, CO: June 29, 1990). 42Interviews with Professor Warren Weston, Professor of Constiwtional Law, Metropolitan State College of Denver (Denver, CO: June 4-5, 1990), John Seigenthaler, Editor of the Nashville Tennessean (Nashville, TN: June 26, 1990), and George Williams, National Delegate for Eugene McCarthy to the 1968 Democratic National Convention (Denver, CO: June 29, 1990). 43F.E. Compton, The 1969 Compton Yearbook (Chicago: William Benton Publishers, 1969) p. 212. 44Richard N. Current, I. Harry Williams, Frank Freidel and Alan Brinkley, American History: A Survey Volume ll-Since 1865 (New York: Alfred A. Knopf, 1987) p.887. 45Interviews with John Seigenthaler, Editor of the Nashville Tennessean (Nashville, TN: June 26, 1990) and George Williams, National Delegate for Eugene McCarthy to the 1968 Democratic National Convention (Denver, CO: June 29, 1990). 46Interview with Professor Warren Weston, Professor of Judicial Politics, Metropolitan State College of Denver (Denver, CO: June 4-5, 1990). 18

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approval was barely below Reagan's highest rating.47 Polls taken since JFK's assassination show him as being ranked within the top three chief executives in American history.48 Robert easily could have taken advantage of name identification with the voting public, especially because the assassination was still a vivid recollection with the American public. In addition, many of the "baby boomers" had reached voting age. They were particularly interested in getting out of Vietnam. Almost certainly, they would have sided with Kennedy on this important issue.49 Even though Nixon professed to have a "secret plan" to end U.S. involvement, he was generally mistrusted by baby boomers. As was shown by his resignation, this mistrust was well placed. In a discussion of voting behavior in the 1968 election, the civil rights issue becomes paramount as it reflects why many of the electorate chose not to participate. Minority groups did not support Nixon, and looked at Humphrey with tacit approval. According to interviews, many chose not to participate at all. Humphrey's support from minority groups was down considerably in big cities. 50 The support of manual labor groups and black voting blocs, though overwhelmingly for Humphrey, was down considerably in the East and Midwest 51 That is where HHH needed support, and failed to acquire it. It could have turned the election in his favor had black and labor voter turnout increased. RFK would have garnered at least the same support; and it is speculated that voter support would have been much higher in these areas. 52 His voting record in the Senate was ranked by labor as the friendliest. He did not enjoy the endorsement of George Meany, but he did have a large number of advocates in the rank and file. The black voting bloc was so supportive of RFK that he was referred to as the "blue-eyed Soul brother." He would have enjoyed tremendous nationwide voter support from blacks. Hispanics and American Indians were staunch in their 47Erwin C. Hargrove and Michael Nelson. Presjdepts. Politics and Policy (New York: Alfred A. Knopf, Inc., 1984) p. 225. 48Ibid .. 49Interviews with Professor Warren Weston, Professor of Constitutional Law and Judicial Politics, Metropolitan State College of Denver (Denver, CO: June 29, 1990); John Seigenthaler, Editor of the Nashville Tennessean; (Nashville, TN: June 26, 1990); George Williams, National Delegate for Eugene McCarthy to the 1968 Democratic National Convention (Denver, CO: June 29, 1990). socompton, p. 213. 51Jbid., p. 214. 52Interview with John Seigenthaler, Editor of the Nashville Tennessean; (Nashville, TN: June 26, 1990). 19

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suppon for RFK; increased voter panicipation from these groups could have turned the tide in the pivotal states of Texas and California. Counter-argument could be raised that voters who polled for George Wallace would have gone to the Nixon camp. However, the reality was, Nixon emerged as the Republican candidate and still did not garner the Wallace vote in the face of LBJ' s handpicked successor--HHH. Humphrey represented a liberal philosophy of government and vowed to continue the "Great Society" programs instituted under the Johnson Administration. It was against this Great Society that Wallace based his campaign. Therefore, it is less probable Nixon would have gained the Wallace vote since Wallace was campaigning as a third party candidate, aiong the lines of a Dixiecrat. RFK also enjoyed suppon among southern Democrats. He would have commanded at least a balancing share of Wallace votes against Nixon. 53 RFK's name recognition was formidable, and his ability to build coalitions among young and old, white and black, New Dealers, baby boomers and mainstream Democrats translates into a winning formula for national office. He could have satiated the law and order zealots because of his prosecution of organized crime, while in the same envelope, garnering the black vote necessary to overcome both Wallace and Nixon, because of his strong stance on civil rights as Attorney General. Had Wallace remained a third-party candidate, with both Nixon and RFK on the ballot, it is reasonable to assume the Nixon vote would have remained diluted. This dilution would have created an even higher probability that RFK would have become the 37th President of the United States. 54 53Jnterview with Joseph Dolan (Denver, CO: June 20, 1990). 54Interviews with Dr. Warren Weston, Professor of Judicial Politics and Constitutional Law, Metropolitan State College of Denver (Denver, CO: July 13-17, 1990) and John Seigenthaler, Editor of the Nashville Tennessean (Nashville, TN: June 26 and July 16, 1990) and George Williams, McCarthy Delegate to the Democratic National Convention, 1968 (Denver, CO: June 26, 1990). 20

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CHAPTER THREE RFK: HE TALKED THE TALK, HE WALKED THE WALK Robert F. Kennedy was a man of style and belief. He owned an enduring passion for justice. Born into an established family, with a healthy economic background, he also possessed the political prerequisite for success: name recognition. His father was a man of respected wealth; his brother a war-hero, Senator, and future President. Robert could have taken a self-serving path to a social position of high esteem. By jumping onto bandwagons, and becoming associated with convenient moral issues, he could have forged a quick path to an elite position within American government and society. Such prescriptions for advancement often require the selling-out of one's true beliefs. In American politics, the emphasis is upon image, not issues. The candidate knows what he is to debate and what he is to omit. If the issue the candidate believes in is judged to be negative for the image, the political consultants that manage the campaign order a censor upon that belief. Issues that are considered dangerously counter-productive to a winning campaign are ignored in the marketing mix of the candidate. Robert Kennedy was a pragmatist, and understood the nature of campaign politics, but his belief in the concept of justice endured. He did not sell out for the sake of winning an election. It would have been ever convenient to hold to the party line on the politics of the Vietnam War. He would have had an accessible "law and order" platform critiquing the civil disobedience utilized by the Blacks and young people protesting against the established mores that American society adhered to in the early 1960s. Coincidental with the black movement, student civil disobedience was spreading throughout college campuses. Student protest against the Vietnam War forged itself into an organization known as Students for a Democratic Society (SDS).55 Within "the SDS there existed a pod from which another group would emerge in the late sixties: the Weather Parallel movements sprang up protesting against other social ills facing the nation. The protest movement of the 1960s had become a multi-headed hydra. A counter-culture had evolved. The 55Todd Gitlin, The Sixties: Years of Hope. Days of Rage (New York: Bantam Books, 1989) p. 93.

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"Hippie Movement" was in full swing. People were "turning on" and "tuning out." Some organizations were calling for violent revolution. The Black Panther Party and the Weather Underground are prime examples of such groups. In the early part of the decade, much of the public sentiment went against the protest groups and counter-culture movements. They were considered disrespectful of established mores, and revolutionary in their rhetoric. It would have been easy to launch a platform calling for prosecution of these groups. The convenience of this "law and order" platform was its availability, and RFK was the chief prosecutor in the United States. It also presented an easy vehicle for Kennedy to bond with a large bloc of voters. Instead, he did not forsake his personal belief that within American society there existed a place for justice and that place had not been realized, or effectively served, by public policy. He knew the protests had merit. He believed in equal opportunity for the disadvantaged so they could become part of the expanding American economic scene. He demonstrated a clear belief that all Americans were entitled to equal protection of the law, no matter what their social standing, or color of their skin. Kennedy also knew public policy had failed to serve those ends for black and disadvantaged Americans. Anchored within this belief was an ability to effect governmental policy. He knew how to get things done. He understood the nature of politics from his experience in American government. He served as assistant counsel on Senator Joe McCarthy's staff, in 1953, minority counsel to McCarthy's subcommittee in 1954, and majority counsel to the McClellan subcommittees from 1955 through 1957. He was blessed with the good fortune of touching Senatorial power at its muckraking best. While some critics label role in the subcommittee hearings as political opportunism, the result of his service was he became experienced in American politics when it was very distasteful. As campaign director for his brother's successful bid for the presidency in 1960, he gained valuable experience in media politics and campaign rhetoric. Serving as Attorney General of the United States, he saw American jurisprudence from the highest law enforcement position in the country. He gained enlightenment on international affairs serving on the Executive Committee of the National Security Council (NSC) during his brother's administration. 57 Few scholars acknowledge Kennedy's service on the NSC. His S6Jbid., pp. 380-384. S 7Edwin 0. Guthman, We Band Of Brothers (New York: Harper and Row, 1971), p. 120. 22

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review of the Bay of Pigs invasion, in 1961, gave him enormous insight into how foreign policy was made and implemented. In this case, the post-invasion analysis shows how the foreign policy articulated by the President differed from what was actually implemented. 58 In 1964, RFK defeated Ken Keating for a seat in the United States Senate. Though he was intertwined in the "Kennedy Mystique," this victory set him apart from the image of his brother. The key difference was that as Senator from New York, RFK set out on a path helped by his past service and family heritage, but with a new, singular presence--his own. Kennedy served a national constituency as Attorney General, a local constituency as Senator from New York and a micro-constituency as counsel to the McCarthy and McClellan subcommittees. His work included investigations of organized crime and its infiltration of labor unions, as well as other forms of mobster racketeering. Working as assistant counsel to Senator Joseph McCarthy's (Rep.-Wisconsin) staff, and later as minority counsel to the subcommittee, he was involved in the agonizing hearings looking into the activities of the Communist Party. He gained valuable insight into the workings of the Senatorial chamber, as well as a view of sensationalism as it applies to American politics. He also showed his willingness to take unpopular stands regardless of public opinion when he displayed a loyalty to the zealot McCarthy, after McCarthy's fall from public grace. 59 By the end of 1954, the Senate had voted 67 to 22 to condemn McCarthy for "conduct unbecoming a senator. "60 While RFK displayed dissatisfaction with some of McCarthy's staff, especially Roy Cohn, he also showed loyalty to McCarthy. In early 1955, he walked out of an event honoring his own accomplishments because the speaker at the dinner, Edward R. Murrow, had done a smear job on McCarthy in a March 1954 CBS television show.61 Even to the end, when the image of McCarthy had been exposed by meticulous scrutiny for 58The fust example occurred at the very beginning of incident. JFK had ordered that no American personnel was to be involved in the landing of troops, yet the fust two frogmen on the beach were Americans. From that point on, American involvement increased. Ibid., p. 114. 59Lester David and Irene David, Bobby Kennedy: The Making of a Folk Hero (New York: Dodd, Mead and Company, 1986) pp. 74-78 60Current, p. 844. 61Arthur Schlesinger Jr., Robert Kennedy And His Times (Boston: Houghton Mifflin Company, 1978) p. 123 23

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what it really was, and had fallen in disgrace, Kennedy would not enunciate negative comment on the man. He attended funeral services for the late Senator in Appleton, Wisconsin, in 1957, shedding a tear. Yet the pragmatist Robert asked of the press covering the event that his presence be concealed in their reports to the public.62 In early 1954, Kennedy had just completed work serving on the staff of the Commission on Reorganization of the Executive Branch. 63 Senator McClellan (Democrat-Arkansas) invited him to return to the investigations subcommittee as minority counsel. When the Democrats regained control of the Senate following the elections, RFK was named majority counsel to the subcommittee. In 1957, he was named majority counsel to McClellan's select subcommittee investigating labor. He made a name for himself with his pugnacious and thrashing style of examination when questioning the likes of Jimmy Hoffa and David Beck. Many observers likened that style to Joe McCarthy's. In a sense, Robert F. Kennedy was destiny's child. He covered the gambit of experience in American politics. From his association with a brow-beating zealot like Senator Joseph McCarthy, to his own experience as chief counsel to Senator McClellan's subcommittees, he served the national government from the inside. He directed the first media-spectacle campaign in JFK's rise to the presidency in 1960.64 Four years later he evolved from asking people to vote for his brother, to asking them to vote for him, when he campaigned successfully for the United States Senate. Serving as Attorney General of the United States from January 20, 1961 to September 3, 1964, he sat in the cabinet of two presidents, JFK and LBJ. 65 His work as lead law enforcement agent and chief prosecutor for the federal government led to an interaction with the third branch of government, the United States Supreme Court. By defeating Ken Keating in the New York Senatorial race in 1964, he emerged from his brothers' shadows into his own destiny. He became known as "RFK." Robert Kennedy cut his teeth serving with McCarthy and McClellan and sharpened them to a razor's fineness as Attorney General. He explored the 62David Burner and Thomas R. West, The Torch Is Passed (New York: Atheneum Press, 1984) p. 197 6 3Scblesinger, p. 123 64Cigler, pp. 531-537. 65Edwin 0. Gutlunan and Jeffrey Schulman, Robert Kennedy: In His Own Words (Toronto: Bantam Books, 1988) p. 63. 24

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spectrum of media campaigns as the head of his brother's presidential campaign. He understood the impact and methodology of media politics, dating from his service with McCarthy and on through to presidential politics, culminating with his own electoral campaign in 1964. RFK knew well of coalition building, as it pertained to winning elections. He worked on matters of foreign policy agenda as a member of the NSC, and critiqued the whole apparatus after the Bay of Pigs fiasco in 1961. He knew of constituent service, as counsel to committee, campaign director, Attorney General and United States Senator. He had to serve loyally subcommittee members or lose his position. He saw what it took to forge successful campaigns for presidential and senatorial offices. He experienced the political interaction between the Department of Justice and the Supreme Court of the United States. In total, his political acumen throbbed with experience from the Executive, Legislative and Judicial branches. He knew of the power each institution possessed. RFK had built a nexus between his service with the three branches of government and political pragmatism. By the time the electoral season of 1968 came to be, RFK was on the cutting edge of American politics. One ponders whether such experience in government would taint, if not denude, any belief in the concept of justice. In this case, Robert F. Kennedy's style of effecting policy was a constant cousin to his belief in the concept of justice. He did not forsake his values in the quest to right injustice in America. He addressed politically hot issues with a readiness, an eagerness, to get things done. This from mainstream politicians who were seeing the promise of image versus reality. Within the American political context, issues are not the harbinger of victory, images are. RFK was an exception to this rule. He attacked the issues of his times, especially civil rights, with a mix of belief and style. His adherence to a strong civil rights stance is illustrated in the transformation that began at the 1960 Democratic National Convention, in Los Angeles. In May, 1960, Sargent Shriver was brought aboard the JFK. campaign machine to organize a civil rights section. He then brought Harris Wofford, a law professor at the Notre Dame School of Law, to coordinate campaign activity on the issue. Bob came up to Wofford and said, "We really don't know much about the whole thing .. .! haven't known many Negroes in my life .. .Its up to you. Tell us 25

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where we are and go to it."66 Shriver and Wofford, with the help of Chester Bowles, then developed a far reaching civil rights platform that went beyond any previous party position. Referred to as the Bowles plank, it gained the full endorsement of RFK. 67 Upon examining it, he declared that it was "the best civil rights plank the Democratic Party has ever had." 68 At the Los Angeles convention, Bob engaged the issue with earnest. He exhorted campaign workers to make sure everyone knew that the Kennedy ideal embodied the Bowles plank. His words were: "Those of you who are dealing with southern delegations make it absolutely clear how we stand on civil rights. Don't fuzz it up. Tell the southern states that we hope they will see other reasons why we are united as Democrats and why they should support Kennedy, but don't let there be doubt anywhere as to how the Kennedy people stand on this. "69 In the idiom of politics, party planks are written with the assumption they will be reduced, when presented to the candidate and convention. Much like public policy, the process proscribes the original draft from emerging as the final official policy.70 In this case, RFK departed from standard formula and accepted the Schriver-Wofford-Bowles program in its entirety. This stance startled Wofford, who acknowledged early that the proposal was written with the assumption the content would be reduced through the process of political bargaining.71 Chester Bowles articulated during the development of the plank: "We've got Southerners on the committee, and we don't have a flaming civil rights majority, but we'd better begin with a maximum plank. We'll draft a plank that says everything we can think of that we ought to do, and we'll negotiate as much of it as we can. "72 The platform included nearly the entire list of recommendations made by the 1959 United States Commission on Civil Rights During the presidential campaign of 1960, RFK again showed an emerging belief in the need to address the issue of equal protection of the law for black 66Schlesinger,p. 232. 67Jean Stein, American Journey: The Times Of Robert F Kennedy (New York: Harcourt Brace Jovanovich, Inc., 1970) pp. 89-90 68Schlesinger, p 232. 691bid. 7 Charles 0. Jones, An Introduction To The Study of Public Policy (Belmont, CA.: Brooks-Cole Publishing Company, 1984) pp. 24-25. 71Schlesinger, pp. 232-233. 72Harris Wofford, Of Kennedy And Kings: Making Sense of the Sixties (New York: Farrar, Strauss and Giroux, 1980) p. 52. 26

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Americans. On October 19, 1960, Martin Luther King, Jr., had been arrested, in Atlanta, Georgia, for a sit-in at a department store. Understanding southern jurisprudence, Harris Wofford called Morris Abram, ari. Atlanta attorney, complaining that King had already spent five days in jail, with little prospect of being released. Abram responded that the time was ripe for action because the mayor of Atlanta, Bill Hartsfield, had gathered several of the key black leaders together for a meeting. Abram went to Mayor Hartsfield and delivered the message from Wofford that something had to be done. Within two hours of Abrams talking to Mayor Hartsfield, King was released with the mayor stating the action occurred in response to the "direct personal intervention" of JFK}3 Mayor Hartsfield felt as though Wofford had given him a basis for releasing King, because he was speaking on behalf of a presidential candidate. Unfortunately, JFK had no knowledge of the situation, nor had he authorized statements. Certainly the Senator had not engaged in any "direct personal intervention." Neither had his campaign director, RFK. Mayor Hartsfield had already delivered his statement to the media. JFK and RFK were still unaware of the developments. Only staffer Wofford knew of the impending disaster. When Wofford finally reached a high-level person, either Ken ODonnell or Pierre Salinger, the campaign disgustedly issued a release saying that JFK had contacted Atlanta, inquiring about King's constitutional rights. Upon his release from jail, Martin Luther King, Jr., was promptly rearrested for violating his probation on a previous charge of operating a vehicle without a valid Georgia driver's license. He was sentenced to six months in the county jail at hard labor. The Kennedy campaign had quickly become embroiled in controversy.74 At that point, the governor of Georgia, Ernest Vandiver, became involved. Now, the Kennedy Campaign had drafted a strong statement on the matter, and once apprised, the governor told the organizers to refrain from issuing it. He said he would intervene and obtain King's release.75 During the interim, Abram had secured a transfer of King to the state penitentiary. This transfer was done because he feared for King's safety in the county jail. All the while, Mrs. King was becoming hysterical. Suddenly, her husband was being driven off into the din of the early morning hours, by police officers, in the state of Georgia, in 1960.76 73Stein, pp. 90-91 74Ibid. 75Schlesinger, p. 233. 76Stein, pp. 88-91. 27

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Mrs. King was busy calling Wofford, who then attempted to have JFK call her, assuring all was fine. That call did not occur. Unsuccessful were attempts to have Adlai Stevenson phone to reassure her. What did occur was that Kennedy staffer Chester Bowles (co-author of the Shriver-Wofford-Bowles plank) phoned her, and this call allayed her irrunediate fears. Later, she contacted Wofford and thanked him for arranging the call from Bowles, whom her husband admired.77 Based upon this entire series of events, publicity was being generated. Dr. King's father, Old Dr. King, who had recently signed a Republican public ad for Nixon, was willing to repudiate his endorsement, and move to the Kennedy camp. This willingness was all the more grand, because previously, the elder King had publicly stated a disdain for any Catholic presidential candidate. Now he was stating, ... I'll take a Catholic or the Devil himself if he'll wipe the tears from my daughter-in-law's eyes. I've got a suitcase full of votes, my whole church, for you to give to Senator Kennedy."78 RFK was also apprised of the volatile nature of the episode. He called in Wofford and Louis Martin (a black staffer who wrote for Chicago newspapers), giving them a tongue-lashing. He stated, "You bomb throwers probably lost the election. You've probably lost three states. From now on in, the civil-rights section isn't going to do another damn thing in this campaign ... 79 Suddenly, and inexplicably, David Brinkley was calling Wofford, claiming a story had just come over the wires that JFK's brother had directly intervened in the matter, calling the judge, securing King's release. Brinkley's information shocked Wofford, because he was sure Ted had no clue as to what was going on, being secluded in California. Shriver would not take such action without contemplation with Wofford, Martin, Bowles and RFK. Brinkley was querying Wofford, asking, ... we are going on the air in about ten minutes. Should I disregard the story?" Wofford replied, "I just can't believe it."80 Brinkley disregarded the story and conducted his newscast without mention of it. Wofford was sure Bob would not have made such a call, since he had strongly castigated the 77Ibid. 781bid. 79Ibid. 80Ibid. 28

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campaign's civil rights section, admonished them never to act again, and further berated them for "having blown the election."81 RFK had made the phone call. Despite knowing how politically inflammatory such an action was, and how devastating it could be to the campaign, he acted on his conscience. He told John Seigenthaler, another campaign aide, and later a member of RFK's Justice Department, that he (RFK) had called the judge in Georgia, asking for King's release. Seigenthaler was aghast, "After what you told Harris and Louis yesterday? What do you mean?'' RFK responded, "Well, I couldn't get to sleep. I was so sore at that cracker Georgia Judge putting a decent American in jail and sentencing him to six months on a hard-labor gang for driving with an out-of-state driver's license, when it was actually because he was black and fighting for civil rights. I just got so mad that I got the Judge on the phone and said, 'Are you an American or not? If you're an American, you get that man out of jail.' "82 RFK's intervention in the matter is all the more compelling because Bob Troutman, campaign director for the southern states, had gone on the record as opposing any interaction with, or on behalf of, Martin Luther King, Jr. In making the phone call to Judge J. Oscar Mitchell, of De Kalb County, Kennedy was bucking the advice of his own political consultant. 83 Instead, he was interested in pursuing justice for an unpopular, and politically hot, black American. The issue of racial justice became intertwined with a concomitant issue, that of equal protection of law. RFK' s experience with the Senate sub-cornrilittees (1954-57) and his experience as the Attorney General of the United States (1961-64), led him to a position ofpowC?r and gave him expertise in the prosecutory position in American jurisprudence. This mix of legislative and executive branch experience augmented his earlier educational training at the University of Virginia School of Law. While attending the Virginia School of Law, RFK demonstrated a willingness to take a stand on correcting racial injustice in America. During his final year of law school, in 1951, he served as president of the Student Legal Forum. The primary purpose of the Forum was to bring in speakers to the law 8 1Ibid. 82Ibid. 8 3Guthman, Robert Kennedy: In His Own Words, pp. 69-70. 29

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school. RFK drew from the circle of family friends to bring in notables such as James M. Landis, William 0. Douglas, Arthur Krock and Joe McCarthy.84 He also drew a line across the color barrier when he brought in Dr. Ralph Bunche, the black Under Secretary of the United Nations, to speak at the law school. At the time, there existed statute law within Virginia that proscribed interracial audiences at public events. Seating had to be on a segregated basis. While fervor erupted on the campus over bringing in a black speaker, Dr. Bunche compounded the problem with correspondence to Kennedy that he would not address the school unless the audience was allowed unrestricted seating. According to an interview conducted in New York, on December 4, 1964, by Anthony Lewis, Kennedy quotes Bunche as saying: ... as a matter of firm principle, I never appear before a segregated audience. "85 Kennedy was then informed by the Dean of the law school of the Virginia statute. The Dean said he would allow for unrestricted seating provided Kennedy, and the Forum, could get the approval of the student government council, the leadership of the student body, and the Board of Visitors (the university's governing body). 86 The student council affmned the idea of unrestricted seating, until a call for signature on the resolution reached the floor. At that point, many of the students pointed to their backgrounds and political aspirations. Paramount to them was the fact they had to return to their hometowns, mostly southern hometowns. Kennedy did not have this worry. The southern students did not want their name associated with desegregation, or with bringing black speakers to the university. Kennedy was outraged. He immediately stood up, shouting, "You are all gutless. You're willing to go ahead with this idea but you're afraid to let anyone know you're backing it!"87 He continued to verbally lambaste the student council, finally succumbing when his outrage made him less than articulate. In response, the council agreed, in principle, for desegregated seating. Utilizing an artful political method, the council chose neither to endorse the resolution, nor to interfere with it The matter then went to the Board of Visitors. Using legal argumentation, RFK and another member of the Forum, Cottie Davison, carried the day. In Sweat v. Painter 399 U.S. 629 f1 9501 the United States Supreme Court had decided that the University 84Schlesinger, p. 91. 85Guthman, pp. 66-68. 86David, p. 57. 87Ibid, pp. 57-58. 30

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of Texas School of Law had to enroll a black student. Kennedy and Davison argued that Dr. Bunche's presentation would be of an educational nature, within an educational arena. Therefore, the Virginia statute could not be applied because of the ruling handed down in Sweat. 88 At that point, the president of the university, Colgate Darden, gave his approval. Dr. Bunche arrived on campus and delivered his speech before a sweltering, but desegregated, audience. 89 Robert Kennedy had faced racial separation head on, and prevailed. This action occurred four years prior to the landmark decision Brown v. Board ofEducation-TQPeka [19541. in which the Court declared "separate but equal" facilities unconstitutional under the Equal Protection clause of the Fourteenth Amendment. While his action as president of the Student Forum was not a watershed in the history of civil rights, it certainly illustrated the resolve Robert Kennedy had when dealing with controversial issues. In 1950, America was still operating under the Plessy Doctrine of "separate but equal." The state of Virginia had statute law that proscribed interracial audiences at theaters, concerts and auditoriums. It was not mainstream to argue against the centuries old pattern of racial segregation. Robert Kennedy challenged the practice. It was not an issue that would engender him to the public. His action could easily have become a vehicle to political ruin; yet he did not back down. The popularity of racial bigotry was institutionalized by law, by practice, by history. For Robert Kennedy, he saw an injustice and tried to right it. By 1962, he began to focus clearly on the issue ofracialjustice.90 The major policy tools used by government to gain racial justice were desegregation, equal protection of the law, and due process of the law. Under Kennedy's leadership, the Department of Justice began examinirig the areas of due process and equal protection of the law. In particular, RFK was concerned about how American jurisprudence worked when applied to poor people, rather than the affluent. In early 1962, he directed a conference studying the difference. A consequence of that study was the creation of an office of criminal justice, with particular for free counsel for poor defendants. 91 B8Ibid. 89Guthman, p. 68. 9Bumer, p. 205. 91Ibid. 31

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During the first days of his tenure as Attorney General, he toured the Department of Justice. His first observation, according to John Seigenthaler, was, "Did anything occur to you as strange in our visit around these offices?" Seigenthaler said he was impressed at the effort everyone was demonstrating. RFK responded, "Yes, but did you see any Negroes?" He went further, "Get me a study of how many Negroes are working here."92 Three Southerners, Seigenthaler, Ramsey Clark of Texas, and Louis Oberdorfer of Alabama, were put on the project in March, to determine the number of black employees within the Justice Department. All of the division heads cooperated with the count except J. Edgar Hoover. The results were that Justice had 955lawyers working in Washington, D.C., of whom ten were black.93 The need for action was apparent, and Kennedy was equal to the task. He did not wait for the results of the study his southern team was assembling. At his first staff meeting on February 10, 1961, he ordered, "The government can't overestimate the effect of cleaning up its own house. That means in hiring, in elimination of segregated offices in the South and in thorough integration of all its operations, South and North ... 94 This order for integrated hiring practices included not only the attorneys, but the FBI, as well. Out of the nearly six thousand employees of the FBI, fewer than a dozen were black.95 There were only two black agents in the department, and they served as J. Edgar Hoover's personal chauffeurs. 96 ru:'K orchestrated a program of affirmative action in hiring black attorneys within the Department of Justice. He dispatched correspondence to the nation's law schools and presidents of the bar associations of major cities, asking them to recommend black attorneys. As a result of this affirmative action campaign, the nwnber of black staff attorneys increased from 10 to over 100 in two years.97 Answering critics who charged reverse discrimination, Kennedy said he was not hiring in a reverse discriminatory fashion, but hiring based upon "ability."98 92David, pp. 187-188. 93Jbid. 94Guthman,We Band Of Brothers, pp. 103-104. 95Ibid. 96David, p. 188. 97Guthman, p. 104. 98 Ralph DeToledano, R.F.K.: The Man Who Would Be President (New York: G.P. Putnam and Sons, 1967), p. 180. 32

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These incidents illustrate the willingness of Robert F. Kennedy to attack injustice when confronted by it. In his attempt to end the segregative practices at the FBI, he ran into severe criticism from the director, J. Edgar Hoover. A standard defense that the director used was lack of qualified black candidates, and he based this claim upon his reasoning that, "Everybody knows that Negroes' brains are twenty percent smaller than white people's. n99 Ever so slowly, the FBI ended purely segregative hiring practices. However, RFK had made an enemy of the Bureau Director, J. Edgar Hoover. The hands-on approach used by Kennedy as Attorney General infuriated Hoover. Until the tenure of Kennedy, Hoover enjoyed autonomy when it came to running the FBI.lOO He had established a direct relationship with presidents from 1924 until 196o.101 Even though the Bureau was under the jurisdiction of the Attorney General, it was long considered Hoover's domain, not to be interfered with by anyone else. When Kennedy insisted the FBI enter into investigations of violations of civil rights in the South, Hoover resisted. I 02 Not only did the Director harbor intense racial bias against blacks, he also felt there was a link between the "crusade for integration" and "Communist infiltration."103 The overall distaste Hoover had for Kennedy is described by the FBI's number-three man, William Sullivan, in his book The Bureau. In the spring of 1968, Sullivan was in a Bureau meeting with Hoover and the second in command, Clyde Tolson. They were discussing RFK, when Tolson commented, "I hope that someone shoots and kills the son of a bitch .... Goddamn the Kennedys! First there was Jack, now there's Bobby, and then Teddy. We'll have them on our necks until the year 2000."104 Hoover, acknowledging a similar sentiment, nodded in agreement with Tolson's stated hatred. lOS Following the assassination of JFK, Hoover regained much of the autonomy he had enjoyed prior to 1960. Disregarding the jurisdiction of the Attorney General, Hoover would enjoy special status with the incoming president, 99David, p. 188. 100 William V. Shannon, The Hejr Apparent: Robert E, Kennedy and the Stru&l:le For Power (New York: The Macmillan Company, 1967) p. 66 101Wofford, p. 207. 102Wofford. pp. 213-214. 1031bid. 104William Sullivan, The Bureau: My Thirty Years In Hoover's FBI (New York: W.W. Norton and Company, 1979) p. 56. 105David. p. 6. 33

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Lyndon Baines Johnson.l06 The relationship between RFK and Hoover disintegrated quickly. In an interview with Anthony Lewis, in 1964, RFK made his view of Hoover public. He was asked by Lewis, "Do you think, or do you now think, that Mr. Hoover is a dangerous person? Or just nasty?" RFK's response was, "No, I think he is dangerous." Lewis then queried, "You think he is dangerous?" Kennedy replied, "Yes ... "107 In a later interview, with John Barlow Martin, Kennedy advanced the conclusion further, commenting on Hoover: "He's rather a psycho."108 RFK's commitment to correcting the past hiring practices in the Justice Department are reflected in the following statistics. The number of black lawyers working in Justice increased 1000 percent in two years.109 James B. Parsons and Wade Hampton McCree were appointed to positions on the federal district court. Both were black.110 Cecil Poole, in San Francisco, and Merle McCurdy, in Cleveland, were appointed U.S. Attorneys. Luke Moore became the first black U.S. Marshal, for Washington D.C., in nearly one hundred years. For the first time, the color barrier was shattered with appointments of black deputy U.S. marshals in Montgomery and Birmingham, Alabama; Phoenix; San Francisco; Los Angeles; East St. Louis, Illinois; Greensboro, North Carolina; Cleveland; Tulsa; Charleston, South Carolina; Nashville; Alexandria, Virginia; Jackson, Mississippi; Hartford, Connecticut; St. Paul, Minnesota; and Kansas City, Kansas.lll RFK's concern for America's black population, and for the civil rights of all minorities, is exemplified in his belief that from the franchise the process of political socialization would begin. In regards to the right of black people to vote, he announced in a press conference at the Department of Justice, on April6, 1961, "I think once the Negro obtains the franchise, that the situation will be far different in the United States in many areas. The long range solution for Negroes is voting rights." 112 Commenting on blacks and voting rights he is quoted, .. .I think all other rights for which they are fighting will flow from that. Political power comes 1060avid, p. 134. 107Guthman, Robert Kennedy: In His Own Words. p. 134. 108David, p. 134. 109Guthman. We Band of Brothers, p. 104. 110 Allen Roberts, Robert Francis Kennedy: Biography of a Compulsive Politician (Brookline Village, MA.: Branden Press, 1984) p. 74. We Band of Brothers, p. 104. 112Douglas Ross, Robert F. Kennedy: Apostle of Change (New York: Simon and Schuester, 1968) p. 62. 34

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from votes and rights come from political power."113 During the ABC television program "Issues and Answers" airing nationwide on Apri121, 1963, he stated: "I think probably the most important area, in my judgment at least, and I don't know that there are others who feel differently, but in my judgment the most important area is the field of voting. That all of our citizens can exercise their franchise. I think if they can exercise their franchise, if they can register and vote in elections than they can frequently remedy their problems themselves in their own areas." In a program aired on Voice of America, entitled "Press Conference: USA" on June 3, 1963, RFK stated: "Well, I think as Negroes gain more and more political power, exercise their franchise, vote in elections and participate in politics, that they can then use that political power to achieve within a state or within a community, their rights." On May 6, 1961, Kennedy gave his first public address as Attorney General. Speaking to a Law Day crowd at the University of Georgia, he talked of law enforcement, especially as it dealt with the 1954 school desegregation case of Brown v. Board. The discourse went as follows: "I happen to believe the 1954 decision was right But my belief does not matter; it is the law. Some of you may believe the decision was wrong. That does not matter. It is the law. And we both respect the law. By facing this problem honorably, you have shown to all the world that we Americans are moving forward together; solving this problem under the rule of law. To the South, perhaps more than any other section of the country, has been given the opportunity and the challenge and the responsibility of demonstrating America at its greatest, at its full potential of liberty under the law."114 Expounding further on the issue of civil rights: "You may ask, will we enforce the Civil Rights statutes? The answer is, 'Yes, we will.' We will also enforce antitrust laws, the anti-racketeering laws, the laws against kidnaping and robbing Federal banks, and transporting stolen automobiles across state lines, the illicit traffic in narcotics and all the rest. We can and will do no less. I hold a constitutional office of the United States Government and I shall perform the duty I have sworn to undertake--to enforce the law, in every field of law and every region. We will not threaten, we will try to help. We will not persecute, we will prosecute. We will not make or interpret the laws. We shall enforce them, vigorously, without regional bias or political slant." 115 11lntompson, R.E. and Harold Meyers, ROBERT F. KENNEDY: The Brother Within (New York: Macmillan and Company, 1962) p. 142. 114Ross, p. 57. llSGuthman, We Band of Brothers, p. 163. 35

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"The hardest problems of law enforcement are those involving a conflict of law and local customs. History has recorded many occasions when the moral sense of a nation produced judicial decisions, such as the 1954 decision in Brown v. Board of Education, which required difficult local adjustments. .. .I say to you if the orders of the court are circumvented, the Department of Justice will act. We will not stand by and be aloof. We will move.'' 116 The crowd erupted in an unexpected standing ovation. Ralph McGill, the editor of the Atlantic Constitution, wrote: "Never before, in all of its travail of bygone years has the South heard so honest and understandable a speech from any Cabinet member." 117 The honesty of that Law Day speech proved surreal. RFK's ideal scenario was for the South voluntarily to end the customary behavior pattern of discrimination against the black race. He held out hope that voluntary compliance with court orders would eliminate the need to use federal force, specifically troops, to uphold equal protection and due process of the law for black Americans. He hoped executive action would not be needed. His last resort would be to send troops down South to protect blacks exercising their constitutional rights. He hoped if court orders were not voluntarily then the legislatures, either state or federal, would step into the breach and promulgate law necessary and proper for compliance. The final solution would be executive action, and the finality of that would be the use of federal force. The truth of justice would be imposed, and that was Robert Kennedy's view. It was imposed, and federal force carried the day. At the University of Georgia, in his inaugural address to the nation as the Attorney General, Kennedy issued his warning. Compliance with the law would take place under his watch as Attorney General. The powder keg had been ignited by Brown v. Board of Education [19541. The South could either end the custom of segregation of public facilities, with new practices, or ignore the court orders and engage blacks, attempting to exercise their court-ordained rights, with the use of Southern police power. Kennedy hoped custom would change because the tenor of the times had changed. Within the context of law, that custom had been modified by the Warren Court. However, if Southern justice was such as to ignore Court orders, he was prepared to act within his powers as Attorney General of the United States to see that the law was 116Ross, p. 57. 117Carl M. Brauer, John F, Kennedy and the Second Reconstruction (New York: 1977) p. 98. 36

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enforced. This intention meant filing complaints within the purview of the mandate authorized by Robert F. Kennedy. The violation of Court orders, and the subsequent filing of complaints would constitute action in the second level Kennedy had spoken of during the Law Day speech.l18 If Southern police forces engaged in violent action toward blacks who attempted to exercise their newly ordained rights, or if the police did not properly restrain the white public from violent opposition, then Kennedy was prepared to utilize executive action, when and where necessary. That type of violence would necessitate action on the fmal tier: the imposition of the national government on the states through the auspices of its hegemonic supremacy. Kennedy would soon learn that confrontation had many sides and faces. At times, the mobilization of federal troops would be necessary, and at other times, he could rely on state authorities to execute the law properly. The Supreme Court ordered, in Boynton v. 364 U.S. 454 [19601. that in public facilities where interstate traffic occurred, such as bus and rail terminals, and within the buses and trains that carried interstate travelers, codified segregation was unconstitutional. In the South, these court orders were ignored. Seven blacks and six whites then organized to form the "Freedom Riders." Their intent was to exercise their constitutional rights by traveling the South in integrated buses, with a final destination of New Orleans. Departing from Washington, D.C., on May 4, 1961, they embarked on a path to history. Initially, the journey traversed Virginia and North Carolina. The only incident occurred when a black Rider was arrested in Charlotte for trespassing because he refused to leave a barbershop at the bus station. Then in Rock Hill, South Carolina, the first act of violence occurred. Three members of the entourage were beaten, but local authorities quickly muted the affair. In Winnsboro, South Carolina, two members were arrested without incident. On May 14, the group arrived in Atlanta. There, they divided into two buses, one a Greyhound, the other a Trailways. Their next destinati-on was Birmingham.119 When the Freedom Riders entered the state of Alabama, they met with severe resistance. Six miles outside of Anniston, a group of Ku Klux Klansmen stopped the Greyhound bus, and burned it. Not satisfied with that action, they then 118Guthman, We Band Of Brothers, p. 165. 119Ibid., p. 166. 37

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pounced upon.the Riders, beating them with clubs, chains and blackjacks. Twelve people were injured.120 In Birmingham, as the Riders came off their bus, they were pummeled by members of the Ku Klux Klan. The Klan members had been guaranteed fifteen minutes by local authorities, in which to attack the Riders, without fear of arrest They did so with the fervor of a feeding frenzy. Wielding clubs, baseball bats and iron pipes, they proceeded to beat the Riders bloody.121 The FBI had placed an informant, Gary Thomas Rowe, Jr., inside the Klan. He had sent clear messages to his superiors of what had been planned for the Riders. The FBI notified local authorities, who they knew were Klan members, but failed to alert Robert Kennedy, or anyone else in the Attorney General's office.122 Rowe, who was at the site, stated, "Everybody who got off the bus was clubbed, kicked or beaten .. .1 observed several FBI men ... taking movies of the beatings. n123 True to their word, local authorities honored the fifteen minute moratorium. Not a single Klansmen was arrested. Three Riders ended up in the hospitai)24 For the Department of Justice, the duty was clear. The Department had to guarantee the constitutional right of free and safe passage for the Freedom Riders during their interstate travel. Burke Marshall, the Assistant Attorney General for Civil Rights, and RFK agreed little could be done to dissuade the Freedom Riders from continuing their journey to New Orleans. Consequently, the assessment was made that other black groups such as Congress Of Racial Equality (CORE), Student Nonviolent Coordinating Committee (SNCC), and the Southern Christian Leadership Conference (SCLC) would not be talked out of protesting white Southern behavior towards the black. The Department of Justice concluded that the first tier, that of a voluntary end to discriminatory practices of Southern government towards the black, was not going to happen. Furthermore, black groups, impatient at the glacial speed with which change was occurring, were going to engage in civil disobedience, boycotts, marches, and other forms of protest. It would be up to the Department of Justice to enforce the law. The second and third tiers of 120Ibid., p. 167. 121Schlesinger, pp. 316-317. 122Guthman, p. 167. 123Gazy Thomas Rowe, Jr., My Undercover Years With The Ku Klux Klan (New York: 1976) pp. 39-44. 124Guthman, p. 167. 38

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involvement, requiring law suits, and physical intervention, would likely take place. State authorities had not protected the Freedom Riders. According to Burke Marshall, "Binningham's commissioner of public safety, Bull Connor said 'that he didn't have any police because he let them all off for Mother's Day.' "125 Many of the original group of Freedom Riders decided to end their involvement after the Binningham beatings. Another member of RFK's Department of Justice, John Seigenthaler, who was in Birmingham, reponed that a new group of students was coming down to continue the trip. Arriving from Nashville, they boarded the bus, ready to finish the journey to New Orleans. However, no one could be found to drive the bus. For his pan, Connor kept an angry crowd away from the bus. Burke Marshall, talking with Kennedy in an interview with Anthony Lewis, in December, 1964, remembers it: II the student group from Nashville had decided to come down and take it up. They got there on Tuesday morning or Monday night and went down to the bus station. And no one would drive the bus. There was a big crowd and mob around the bus. Connor kept the crowd away from the bus. You (RFK) talked to him or to the Mayor, or someone down there. They said they'd protect the bus station, but they wouldn't do anything once the bus left the station. Greyhound wouldn't get a driver for the bus. The next day you decided that, unless the Governor, who wouldn't talk to you at the time, changed his position, the federal government would have to do something in order to correct the situation. Because the situation was that the buses were not moving between Birmingham and Montgomery. There were mobs every day around the bus station. And so, then, you explained to (JFK) in some detail and told him what the political developments were. And-the immediate thing that he decided was that the should try to get in touch with the Governor himself, and make sure that the state wouldn't take this on." And he did try. II 126 A transcript of the conversation follows: Kennedy responded: And then the Governor was out fishing or something. Marshall: The Governor wouldn't respond to him. And then finally, the Governor agreed to meet with a representative. Kennedy: The Governor called about three o'clock one afternoon. I remember, when we were out. Wasn't that it? And then the President said that he would have John Seigenthaler, who was going to be his representative as well as my Administrative Assistant, talk to him. Isn't that right? Marshall: Yes. Kennedy: And the Governor met with John Seigenthaler. Then Friday night .. Marshall: I interrupted you at dinner. 125Guthman, Robert Kennedy: In His Own Words. p. 84. 1 2 6Ibid., p. 85. 39

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Kennedy: Yes. I talked to John around ten o'clock at night, and he was with the Governor. I went through it then with John--what the Governor had agreed to. And the Governor had agreed to give protection to the buses and make sure that nothing ... Marshall: The bus did go, that's when you had this conversation about a driver. (Kennedy had phoned the superintendent of the Greyhound terminal in Birmingham, Mr. George Cruit, insisting that a driver be found. Kennedy told Cruit that he had better get in touch with Mr. Greyhound and get a driver so the riders could continue their travels, or the government was going to "be very much upset.")* ... But the bus did go. Lewis: Saturday morning? Marshall: Saturday morning. And there was riot in Montgomery. And after the riot in Montgomery, we sent the marshals in. [Source: ROBERT KENNEDY: IN HIS OWN WORDS: The Unpublished Recollections of the Kennedy Years, edited by Edwin 0. Guthman, (Toronto: Bantam Books, June, 1988, pp. 85-88) *Transcript of the phone conversation, recorded by Cruit, can be found in the RFK Papers, dated May 15, 1961. During Seigenthaler's conversations with the Governor, Patterson said, "By God, fm telling you if federal marshals come into Alabama, there'll be blood in the streets."127 Floyd Mann, the state director of public safety, informed Seigenthaler that his state troopers would protect the Riders while they were on the highways. Meanwhile, Kennedy had telephoned Alabama Governor John Patterson. He and the Governor were on a first name basis, since Patterson had been the first Southern governor to back John's drive for the presidency. Patterson was a staunch segregationist, and enjoyed wide support from the Ku Klux Klan. Yet he agreed to provide protection for the buses after Kennedy's phone call. However, that afternoon he reversed his position, saying he would not be responsible for the safety of the Riders.128 Floyd Mann lived up to his word, escorting the bus to the outskirts of Montgomery. Fourteen miles outside of the city, Mann phoned ahead, telling Montgomery Police Commissioner Lester B. Sullivan the location and status of the Freedom Riders. But Governor Patterson was also true to his word, for once the bus arrived at the Montgomery tenninal, it was surrounded by a white mob of a thousand people, armed with chains and ax handles. Sullivan's police were not there to meet the bus.129 There was an international flavor to whatever course of action the Administration decided to undertake. The Bay of Pigs fiasco had left a stinging 127Jolm Seigenthaler, in a recorded interview by R.I. Grele, February 22, 1966, 314-324, JFK Oral History Program. 1211Guthman, We Band of Brothers, p. 168. 129Guthman, p. 171. 40

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mark on the Kennedy foreign policy machine, and the President was soon to embark upon a trip abroad to meet with the heads of state of the Soviet Union and France. The import of America's international image was paramount in the minds of the policy makers. If Khrushchev could make an issue out of the domestic violence in America, he would be able to deflect criticism of his country's human rights record. Yet, domestically, if federal troops were sent down to Alabama to quell the disturbance, the Administration would have ventured into the third tier of involvement. Federal involvement at this level is was what RFK had dreaded the most Federal interaction similar to what the Eisenhower Administration had conducted during 1957, when it sent federal troops to Little Rock, is exactly what he wanted to avoid. The paradox of international image versus domestic justice presented itself to the Attorney General. But action was needed. Seigenthaler had escorted the original group of Riders from Birmingham to New Orleans. Weary from the beatings they received in Birmingham, they had agreed to letting the second group of Riders fmish the journey. The severity of what happened in Birmingham is summed up by Simeon Booker, a reporter for Jet and Ebony magazines. He said, "I don't think we are ever going to get out of here (alive). n130 Seigenthaler had just finished getting the first group settled in a New Orleans hotel, around two o'clock in the morning, when Kennedy called from Washington D.C., asking if he could return to Birmingham and observe the situation. "Can you go back up, John?" he asked.l31 Seigenthaler linked up with John Doar, chief assistant to Burke Marshall. Together they went to Montgomery to observe. What they saw was more chilling than the incident in Birmingham. Doar called Kennedy, in Washington, and reported the incident as it happened: "The bus is in. The people are coming off. They're standing on a corner of the platform. Oh, there are fists, punching. A bunch of men led by a guy with a bleeding face are beating them. There are no cops. It's terrible. It's terrible. There's not a cop in sight. People are yelling 'Get 'em, get 'em.' It's awful...'' 132 Two young women, Susan Hermann and Susan Wilbur, had disembarked and were quickly surrounded. Women began slapping them with purses, shouting 130David, p. 194 1311bid, pp.-194-195. 1321bid, p. 171. 41

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obscenities. They ran to a man in a car asking for help and he told them, "You deserve what you get. I hope they beat you up good."133 Then John Seigenthaler ran up to them yelling, "Come on, I'll help you. I'm a federal man."134 The mob attacked Seigenthaler, knocking him unconscious. The girls escaped, but he remained on the sidewalk for twenty-five minutes. When asked why an ambulance had taken so long, Police Commissioner Sullivan replied, ... every white ambulance in town reported their vehicles had broken down." 135 When mobocracy develops, only law enforcement can contain it The Montgomery police did not arrive in sufficient numbers to counteract the mob violence until severe damage had been done. Not only were Riders attacked, but so were individuals who had no connection to them. One boy had his leg broken, and another was set afire by the mob.136 The leading government official of Alabama, Governor Patterson, originally had assured the Attorney General that safety and security of the interstate travelers would be maintained. Then he reversed his position, stipulating he would not be responsible, nor could he fnsure the safety of the interstate travelers while that passed through his state. The Alabama Director of Public Safety, Floyd Mann, interceded, providing for the security of the Freedom Riders while they traveled on the roads of his jurisdiction. Once they entered the city of Montgomery, their safety was the responsibility of Montgomery Police Commissioner Lester B. Sullivan. He failed the responsibility in a most robust manner. The Attorney General was listening to Doar's account. He immediately set forth trying to reach Governor Patterson. He was told the governor was "on a fishing trip." 137 At this point, Kennedy entered into the third tier of involvement. On May 21, he ordered future Supreme Court Justice Byron White, then serving him as Assistant Attorney General, to lead a force of five hundred marshals into Montgomery, to enforce the law and insure the public safety. The premise was that Police Commissioner Sullivan had failed in his responsibility to "insure the civil peace."138 133Ibid. 134Ibid. 135Ibid. 136Ibid, pp. 171-172. l37Guthrnan, Robert Kennedy: In His Own Words, p. 88. 138Schlesinger, p. 319. 42

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Governor Patterson reentered the picture. Martin Luther King, Jr., was set to fly into Montgomery. Patterson called Kennedy and told him that General Graham of the Alabama National Guard felt he could not insure King's safety. Kennedy responded, "I don't believe that. Have General Graham call me. I want to hear a general of the United States Army say he can't protect Martin Luther King. "139 He had now abandoned the belief that the first and second tiers of his strategy would be successful. He ordered fifty U.S. marshals to meet King at the airport and secure his safety. This brought the disgusted observation from Patterson: "Fifty marshals met King at the airport and escorted him through town ... just like he was the president of the United States. "140 That evening, Sunday, May 21, fifteen hundred people jammed into the First Baptist Church to listen to Dr. King speak. A mob began to gather in the park across the street from the church. The Montgomery police refused to do anything about it. Byron White then dispatched his marshals in every conceivable vehicle available. They utilized prison trucks, postal jeeps, automobiles, to get to the church.l41 The marshals were outnumbered. Burke Marshall commented, "At one point it really looked as if the mob might overcome the marshals and get in there (the church)."142 Airborne troops at Fort Benning, were ordered on alert. Kennedy did not want to have to call in the United States Army, but weighing that action against the alternative of "defiance of federal law and a racial war," he was prepared to do so.143 The mob began throwing rocks, and burned a car. Then they began moving towards the church. White's force of marshals countered with nightsticks and tear gas, barely holding off the mob. Then Floyd Mann arrived with state troopers and temporarily secured the area.144 The mob regrouped and counterattacked. Finally, General Graham arrived with his National Guard troops and the crowd was dispersed.145 139Jbid. 140Jbid. 141Guthman, We Band Of Brothers, p. 173. 1 42Schlesinger, p. 320. 1431bid. 144David, p. 197. 145Guthman, p. 173. 43

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Had the Attorney General not dispatched White with five hundred marshals, speculation is Martin Luther King would have been killed.146 Even with the presence of the marshals, as Burke Marshall stated, the situation was still tenuous. Only after Floyd Mann arrived with his forces, was an air of stability gained. Robert Kennedy found himself in a nearly untenable situation. On one hand, he had to see that law and order were maintained. That responsibility was his purview as Attorney General of the United States. The Freedom Riders were engaged in interstate travel, and their civil rights had to be protected. On the other hand, he had to deal with international aspects of foreign policy, and the arguments against federal intervention on Alabama soil. In the area of foreign policy, critics of America had ammunition to argue that civil rights were not secured for all the citizens, especially the black minority; so RFK had to act to protect their safety. If federal troops were used, the argument would be that state-sponsored terror tactics were being implemented because of racial strife. Coming on the heels of the Bay of Pigs, and immediately before the President embarked on a major foreign policy trip abroad, the political hotbed was dangerously thermal. Domestically, the ensuing conversations illustrate the weighty tensions RFK had to deal with. Dr. King called him from the church and "berated him for not providing enough protection."147 Minutes later, at 1:35AM, Governor Patterson called, claiming "Alabama was being invaded."148 During the conversation, the governor told Kennedy that the whole incident would be politically fatal. He replied, "Now, John, don't tell me that. It's more important that these people survive than for us to survive politically."149 That statement endures. It illustrates Robert Kennedy's belief in action, rather than words. He placed his political future (and that of the President) on the firing line, to see that justice prevailed. He faced the pressure of decision making, staring domestic and foreign policy ramifications squarely in the eye. He did not shrink from action. His style and his belief forced his performance. In today's colloquial nomenclature: He talked the talk, and then he walked the walk. 146Guthrnan, p. 174. 147David, p. 197. 148Jbid. 149Pierre Salinger with Edwin 0. Gutlunan, Frank Mankiewicz and John Seigenthaler, An Honorable Profession: A Tribute To Robert F. Kennedy (New York: Doubleday and Company, 1968) pp. 20-21. 44

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The epilogue of the Freedom Riders is that their constitutional right to travel the South had been secured. After they left Montgomery, their destination was Jackson, Mississippi. After "sixty conversations with Jim Eastland," the senior Senator from Mississippi, and the Riders received protection from state authorities.150 Kennedy showed political acumen by securing Senator Eastland's word that the Riders would receive safe passage within the state of Mississippi. The Attorney General also decreased federal presence when he ordered the U.S. marshals not to accompany the Riders from Montgomery to Jackson. Alabama authorities assured him they would protect the Riders for the rest of their journey through the state. RFK had upheld the Freedom Riders' right to assemble, under the First and Fourteenth Amendments of the Constitution of the United States. He did so in the least restrictive way possible. Utilizing the Interstate Commerce Commission (ICC), regulations forbidding segregated facilities were issued, and Kennedy's Department of Justice enforced them. By the end of 1962, the "White Only" and "Colored" signs differentiating public accommodations had vanished from railroad stations and bus terminals in the United States. I 51 Hundreds of years of segregation, in these facilities, had been crushed under the auspices of the Attorney General, Robert F. Kennedy. The second major incident concerning equal protection of the law occurred in the state of Mississippi. James Meredith, a black man, had applied to the University of Mississippi at Oxford (Ole Miss), in January of 1961. In its 113 year history, there had never been a black student enrolled at Ole Miss. Meredith, having just heard John F. Kennedy's inaugural address, with the ideal of the "New Frontier," was inspired to apply for admission. He during an interview on the nationally televised show Meet The Press, had Nixon won the presidential election Meredith would not have bothered to apply for admission. I 52 The normal application process required Meredith to send a photo affixed to the admissions request. He did so. The university promptly sent a telegram informing him the deadline for applications had passed, and instructing him not to show up for registration of classes. Meredith contacted the NAACP's legal defense team, encountering future Supreme Court Justice Thurgood Marshall. It was determined ISOGuthman, Robert Kennedy: In His Own Words. p. 96. 151David, p. 198. IS2James Meredith, "Three Years In Mississippi," Time Magazine, October 12, 1962, p. 18. 45

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to make Meredith's application a test case. The case went through a series of hearings, lasting the entire summer. Initially, Meredith lost, but fmally gained admittance to the university, by order from the Fifth Circuit Court. The victory was short lived, as the university received a series of injunctory stays, keeping Meredith out. Meredith's case received support from the Department of Justice, who filed an amicus curiae brief on his behalf, when the case reached the Supreme Court. On September, 10, 1962, Supreme Court Justice Hugo Black "nullified the final stay of an injunction and ordered James Meredith admitted" to Ole Miss. I 53 Governor Ross Barnett answered the Supreme Court of the United States with swift defiance. On a television show broadcast September 13, he stated: "We will not surrender to the evil and illegal forces oftyranny."154 Then he issued an executive proclamation that "all public schools and institutions of higher learning in Mississippi would be run under state supervision, answerable only to state laws."155 Robert Kennedy and Barnett entered into a series of twenty phone conversations between September 15th and the 28th. I 56 While this telephonic negotiation was taking place, action at Ole Miss was heating up. U.S. marshals had escorted Meredith onto the campus, and were met by a shouting crowd of two thousand students, including "special registrar" Ross Barnett. This, and two ensuing attempts to register Meredith failed. A fourth try, on September 27, never came off because 2,500 students and two hundred policemen armed with clubs were to meet Meredith. The situation was quickly moving towards confrontation. Governor Barnett did not want to end the practice of segregation at Ole Miss. He was a staunch believer in the supremacy of the white race. He was also politically astute enough to know confrontation with the federal government would not be successful. He wanted to show an image to the people of Mississippi that he was standing up for segregation against federal authorities, and it would take the might of federal intervention to secure James Meredith's place at Ole Miss. A series of maneuvers was discussed during the telephonic negotiations. One scenario included a "secret registration" ceremony. Another, discussed on the afternoon of 153David, p. 200. 154Schlesinger, p. 341. lSSDavid, p. 200. 156Schlesinger, p. 341. 46

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September 28, included Barnett telling RFK, "Why can't you persuade Meredith to go to another college? I could get some money together and we could give him a fellowship to any university outside the state. Wouldn't that be the best way to solve the problem?" 157 At 7:30pm, in a conversation between Barnett and the President, the Governor again introduced a scenario which included the "secret registration" ceremony. The President said he didn't care how the admission occurred, but wanted a promise that it would occur. At 10:00, Barnett called back, saying he (Barnett) had cancelled the "secret ceremony."158 At last, President Kennedy, fed up with the delays, signed Executive Order 3497, minutes after midnight, September 29, 1962. The order "authorized the Secretary of Defense to 'take all appropriate steps' to enforce all orders of the court, to use any armed forces deemed necessary, and to call into active service the Mississippi Army and Air National Guards."159 In addition, a proclamation was issued "ordering persons obstructing justice in Mississippi to desist and disperse."160 Early Sunday morning, Barnett responded with a distressed phone call to Kennedy. Again, the bizarre nature of the event is illustrated. Barnett proposed that Meredith be brought to campus, escorted by Army personnel, who would wedge their way through a cordon of unarmed Mississippi highway patrolmen, deputy sheriffs and an angry mob of onlookers. Barnett would interpose himself between the groups, read a prepared speech barring Meredith's registration and then stand aside as the Army personnel would draw weapons and force their way through. RFK determined this scheme to be ludicrous and dangerous. The plan required the state troopers and deputy sheriffs to be unarmed, and willing to yield. It also depended upon a mob acting in accordance with some unknown design. Since no assurances could be given as to whether the mob would be unarmed, or their behavior patterns controlled, Kennedy quickly vetoed the idea as unworkable. Then he lost his temper with Barnett. He told him that the President was going to go on national television and say that Barnett had broken a promise made to him on Friday. The conversation went as follows: 157Jbid., pp. 321-324. 158David, p. 201. 159Jbid., pp. 201-202. 160Schlesinger, p. 345. 47

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KENNEDY: The President is going on TV tonight. He is going through with the statement (he) had with you last night. He will have to say why he called up the National Guard; that you had an agreement to permit Meredith to go to Jackson to register ... BARNETT: That won't do at all. KENNEDY: You broke your word to him ... BARNETT: Don't say that. Please don't mention it..Why don't you fly him in this afternoon; please let us treat what we say as confidential ... We will go on and do it any way. Let's agree to it now and forget it. I won't want the President saying I broke my word ... We will cooperate with you. (Source: Transcript of phone conversation between RFK and Barnett, 12:45 PM, September 30, 1962, Burke Marshall Papers) The following arrangement was worked out. Meredith, who was in Memphis, would be flown to Oxford, with an escort of federal marshals. Barnett would be notified thirty minutes prior to their departure. He would then order the Mississippi State Patrol to help with security. This action would allow Barnett to report to the public that the federal government had placed Meredith on campus in a clandestine manner, and he (Barnett) was halting his resistance to the registration because of an overwhelming federal force, but would continue to press the issue in the courts. Meredith, together with Chief Marshal James McShane, and John Doar flew to Oxford. McShane, who had worked with Bob during the fifties, was appointed by Kennedy to be Meredith's personal escort. Flying down from Washington were Nicholas Katzenbach, an Assistant Attorney General, and his aide, Harold Reis. Burke Marshall manned the post in Washington. Katzenbach's group was the first to arrive on campus. They brought with them several truckloads of marshals. They were met by university officials; the only problem encountered to registering Meredith was a reluctance to do so on a Sunday for fear of angering church officials. In preparation for what was now to be a Monday registration, the marshals ringed the Lyceum Building, where the Administration Office was housed. Katzenbach then left the campus to get Meredith from the airport. Students were beginning gather at the Lyceum. Arriving back on campus, Katzenbach escorted Meredith to Baxter Hall, more than a mile from the Lyceum. As dusk fell, the crowd had grown into a mob. Anticipating the registration of Meredith, it had swelled to more than 1 ,500 people. They began shouting: "Where's the nigger, where's the nigger."161 161 David, p. 203. 48

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Segregationists from all over the South then began arriving by the carload. They brought with them a variety of weapons, including stones, iron pipes, and shotguns. Meanwhile, the Mississippi State Police had withdrawn their presence. The crowd at the Lyceum was becoming agitated. The only law enforcement agents remaining were federal marshals. Suddenly, the crowd erupted. They began flinging stones, bricks and bottles at the marshals. Katzenbach authorized the marshals to defend themselves. They hurled tear gas back at the mob. In Washington, the time had come to order in federal troops. A force of 541 marshals had been assembled, most of whom had riot-control training. Supplementing them was a force of federalized Mississippi National Guard. The federal government ordered troops from Fort Bragg, North Carolina, and Fort Benning, Georgia, to stand ready. The Secretary of the Army, Cyrus Vance, had set up a situation room at the Pentagon, complete with a logistics group. Troops as far away as Fort Dix, New Jersey, had been placed on alert.l62 Kennedy had given courtesy to the governor of Mississippi, allowing him every opportunity to provide security for Meredith, and just as important, to maintain the public peace. Burke Marshall had advised that "it was doubtful whether the President had any constitutional choice about refusing in advance to accept the word of the governor of the state."163 Casting doubts aside, the federal government had provided the governor the necessary opportunity to maintain civil order. He had failed. The choice was clear to Robert Kennedy. There was a violation of the law, of court orders, and of the public peace. The local and state authorities had proven unable to maintain order, and it now rested upon the national government to take action. Again, RFK disliked operating within the third tier of intervention, but had little choice. His role, as Attorney General, was to enforce the law. His stated belief was that he would act to insure compliance with court orders. He did so. It was politically wise to allow Governor Barnett space in which to succeed, or fail. If federal intervention had taken place prior to state action, blame could easily have been placed at the Attorney General's doorstep. Instead, given the fact that a mob had acted violently, in violation of the law, and with the intention to defy court orders, there was little room left for a choice of action. The federal government must act, or not act. If it chose the latter, 162Jbid., pp. 204-205. 163 Burke Marshall, Federalism and Cjvil Rights (New York: W.W. Norton and Company, 1968) p. 68. 49

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it would send a clear message to the South, that the Kennedy Administration would allow the custom of racial discrimination and injustice to continue. Federal intervention would sound an opposite alarm. RFK had spoken for the administration, as far back as his address to the University of Georgia, in 1961. The nation was watching; black and white America was watching; the whole world was watching. The battle at Ole Miss was heating up. The federalized Mississippi National Guard was ordered in to help the beleaguered marshals. The crowd was becoming very imposing. The first assault had been repelled. A second assault proved dangerously close to overwhelming. A force of sixty National Guardsmen arrived to augment the marshals. The mob reacted with another attack, hurling projectiles. A bulldozer had been commandeered, and the mob attempted to use it as a battering ram against the Lyceum. The first attempt failed as the bulldozer stalled against a tree. Dislodging the tree, the bulldozer was again aimed at the Lyceum. A well placed tear gas cannister landed on the driver of the vehicle, finally ending that threat. The mob regrouped, ready to stage another assault The call came in from Katzenbach, to Clark, who was manning the phone bank in Kennedy's office at the Department of Justice, "Can the marshals draw their guns?" Clark dispatched the message to Kennedy, who answered "No."164 As the mob pressed its offensive, a second call came in requesting authorization to use live ammunition. Again, the answer was negative. Kennedy's only authorization of the use of live ammunition was directed towards the marshals protecting Meredith. They could not fue to protect themselves, only to protect Meredith. 165 The battle raged throughout the night. The crowd resorted to using shotgun and sniper fire. Three marshals were hit. One, Graham Same, of Memphis, suffered a critical wound. The marshals had not brought medical supplies. The only presence of a medical staff was Dr. L.G. Hopkins, a local physician. He was brought in, initially, to administer to Same. Hopkins worked throughout the night, tending to the injured. The marshals were also critically low on tear gas. Since they were prohibited from using their weapons, the use of tear gas was essential in providing for their defense. Border Patrolman Charles Chamblee made three trips 164David, p. 204. 165Guthman, Robert Kennedy: Tn His Own Words, p. 162. 50

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to the airport to get more tear gas. At ten o'clock, rifle fire intensified. An automobile with the accelerator tied down had been sent barrelling into the force of marshals. A fire engine had been used as a battering ram. Katzenbach made repeated requests for Kennedy to send in military troops.166 Cyrus Vance was alerted to dispatch the force from Memphis. However, as the battle raged, the troops never arrived. RFK kept inquiring about the status of the troops. The answer was always the same: "They're five minutes from landing. They're five minutes from landing. They're in the helicopters."167 Kennedy finally called Memphis, demanding to know when the troops would arrive. He was shocked when told they hadn't even been dispatched. Vance had assured both the President and the Attorney General, not just once, but eight times, that the troops were in the air, five minutes from landing.168 As violence continued, reports came from Katzen bach that two people had been killed, hundreds injured, a French journalist had been shot in the back. Still, the troops did not arrive. Finally, at four o'clock in the morning, Military Police (MPs) arrived dressed in battle gear. They marched toward the Lyceum with fixed bayonets. Amidst volleys of rocks and bricks they turned and faced the mob. The mob swelled,. and began menacing the MPs. Suddenly, the rumbling of trucks was heard. The troops had finally arrived. A fmal thrust by the mob failed, and a semblance of order was gained. At eight o'clock in the morning, James Meredith was registered at the. University of Mississippi. The violence continued. Rioting began in Oxford just one hour after Meredith registered. It fmally subsided at noon, with federal troops shooting their weapons over the head of the rioters. During the fifteen hour battle of Sunday evening, two people had died, 206 marshals and soldiers had been injured, many more civilians had been hurt, and two hundred of the mob had been arrested. The campus reeked with the din of a battle. The residue of tear gas hung in the air, on buildings, on the shrubbery. Empty cannisters, burned vehicles, and debris common to a battlefield littered the campus. The nation had been treated to a war spectacle. But this one was played out in Mississippi, not in a foreign land. The right of James H. Meredith to attend the 166Guthman, We Band Of Brothers, pp. 202-203. 167David, p. 206. 168Guthman, Robert Kennedy: In His OWl! Words, pp. 162-163. 51

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University of Mississippi, in accordance with a court order prescribed under the equal protection of the law, had been upheld. The resolve of Robert F. Kennedy in doing "whatever is necessary" in upholding the virtue of justice within the equal protection of the law was shown to the entire nation. This episode was a watershed in displaying the nature of RFK's politics when the issue of racial justice was concerned. Nations throughout the world scrutinized America, specifically, the way RFK handled the incident. His actions were scrutinized within and outside of America. The diplomatic corps sent glowing praise of RFK's handling of the situation. In 1962, Indonesia was an unstable region in the world. The ambassador to Indonesia, Howard P. Jones, wrote Kennedy, thanking him for standing up for racial justice for the entire world to see: "This was a battle that had to be won ... what might have been a severe setback to our prestige in Asia and Africa was turned into a gain." 169 The United Nations representative from Upper Volta commenting on how RFK dealt with the issue of racial justice: "For one small Negro to go to school (the American government) threatens governors and judges with prison .. .it sends troops to occupy the University of Mississippi." 170 Vice President Lyndon Johnson commented on RFK's handling of the incident to Dean Rusk: "The situation in Mississippi had been handled better than he (LBJ) could ever have thought of handling it." 171 James Meredith summarized it: "A lot of troops were used to get me in the University of Mississippi. Really a lot of troops .. .! mean I don't think the Russians sent that many troops into Czechoslovakia. It seemed to me very clear that Robert F. Kennedy was the main man in determining that these steps be taken. Had they not made the decisions they made, the course of my life would have been different. RFK sent in the marshals. He could have sent just two. His decisions kept me alive. I'm still here." 172 The registration of black students at Southern universities continued to be a thorn in the side of RFK. The next episode occurred in the neighboring state of Alabama. At the Tuscaloosa campus, Governor George Wallace was denying two black students the right to register for classes. In the wake of the incident at Ole Miss, it was not lost on business leaders of Alabama that a similar action could 169Schlesinger, p. 351. 170fuid. 171Ibid. 172Stein, p. 105. 52

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occur at their university. RFK appealed to business leaders in the state to quell any premeditated action, by using their influence within the communities of Alabama. This action succeeded. No one wanted a repeat of Oxford, especially those in Tuscaloosa. While Governor Wall ace stood fast in blocking the registration during the initial phase, he backed down, as soon as Nicholas Katzenbach reminded him that it was a matter of a pen stroke to federalize the Alabama National Guard. In addition, if a contempt charge were levied against him for violating the court order to allow the registration of the black students, Wallace would face jail time. Yet, if a contempt citation were issued, then federal troops would have to be utilized to occupy Alabama. The federal government did not want to take this course of action, but was capable of it. The threat was sufficient to carry the day. The plan of action was determined on June 11, in a meeting between Katzenbach and the Attorney General. It was decided Katzenbach would take the black students to Tuscaloosa in his automobile. Presumably, Wallace would be at the door of the registration building blocking it Katzenbach would allow Wallace his day in the sun, and agree to the Governor's presence. Then he would simply declare the students registered and take them to their dormitory. If Wallace persisted in his defiance, the Guard would be federalized and troops would be ordered onto campus. Here, area business leaders exerted influence by phoning the governor. Burke Marshall reports it: "He (Wallace) was getting fifteen to twenty phone calls every day from business people. He'd have to guarantee them that there woll:ldn't be any repeat of the Oxford incident, that there wouldn't be any violence." 173 In Robert Kennedy's words: "Really, the elements we were considering were getting the students in and not having to charge the Governor with contempL All the southerners think we want to send troops into all these southern states. Of course, our struggle during this period of time, and at the University of Mississippi, was to try to avoid sending the troops into either of these places." 17 4 On the use of the National Guard to force Governor Wallace aside: ... we came up with the idea of having Nick (Katzenbach) go in without the students and ask him to step aside. That permitted the Governor to refuse entrance, but it also 173Schlesinger, p. 367. 174Guthman, pp. 191-193. 53

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permitted us not to charge him with contempt, because the students weren't there yet. ... The second part that was important, really, was keeping the students on the campus. When they came on the campus, they were not confronted on television, worldwide, by the Governor stopping them from going in. The only picture that was ever taken was Nick. They never turned back the Negro students. The second thing is that when they came on the campus with Nick, they had to be there in case (Wallace) said, 'Come on in.' Which was unlikely. He didn't say that So they went into their dormitories."175 In the end, the black students were registered. Wallace was not prohibited from espousing his pro-segregation diatribe, nor was he seriously bruised when it came to his political power. He was made to understand the supremacy of law, when the law was administered by Robert F. Kennedy's Department of Justice. In this case, the law ordained the cessation of segregative practices on the campus of the University of Alabama, and that law would be enforced. Wallace understood that the custom of racial injustice was crumbling, with RFK leading the assault. RFK stated his belief that from the franchise came all other rights. He was sure that the process of political socialization would logically follow the right of franchise. Acting in defiance of the Fifteenth Amendment, the South had continually enacted proscriptions against the uniform exercise of the right to vote. Jim Crow laws, grandfather clauses, poll taxes, all were forms of state law that exorcised black suffrage from voting behavior in the South.176 The first tier of operation had proven useless in gaining universal suffrage for the blacks in the South. The next step was the lawsuit Within this sphere of operation, RFK excelled. Lamenting on the state of affairs concerning voting rights lawsuits prior to his watch, the Attorney General said in 1964: 175Jbid. "I thought a good deal more needed to be done. I felt that of course this was the area in which we had the greatest authority; and if we were going to do anything on civil rights, we should do it in that field where we had the authority. And number two: I felt strongly that this was where the most good could be accomplished. I suppose that's coming out of a political background, but I felt that the vote really makes a major difference. From the vote, from participation in the elections, flows all other rights far, far more easily. A great deal could be accomplished internally within a state if the Negroes participated in elections and voted. I look at, just coming out of the election of 1960, the amount of power that the Negro had, the amount of power he had in the state of New York, where twenty percent of the population is Negro. And s_o many decisions are made to insure that they are satisfied, and they are always consulted about matters. I could see it all over the country. And here you had almost fifty percent of the population in the state of Mississippi who were Negro, forty percent of the state of Alabama, and a large percentage in Georgia: if they registered and participated in elections, even if a half of them or even if 176Current, p. 474. 54

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a third of them, if you get it up over fifteen percent of the whole voting population [being] Negro, they could have a major influence." 177 He and Burke Marshall instituted a new program in which the previous practice of having local attorneys argue voting rights cases would cease. Marshall sent in his own attorneys. The Department of Justice invaded the former sanctuary of segregative practices, the Deep South. Mississippi was targeted, and hit. This targeting occurred even though Senator James Eastland, the powerful chairman of the Senate Judiciary Committee, hailed from that state. Kennedy's Department of Justice brought fifty-seven voting suits, thirty in Mississippi, and one in Senator Eastland's home county, Sunflower County.178 Each suit was meticulously set forth by Marshall's handpicked attorneys. The legal briefs were detailed, lengthy, and authoritative. The attorneys understood they were arguing cases in the heartland of Dixie, with unsympathetic magistrates who had lived with the custom of segregation their entire lives. RFK also pushed for the civil rights leaders to register voters. In a June, 1961, meeting with the leaders of the SCLC, CORE and SNCC, he argued that the leadership should concentrate efforts on registering voters, not engaging in demonstrations. He felt that change could best be achieved by utilizing the political power associated with the vote rather than dramatic demonstrations.179 In a December, 1964 interview with Anthony Lewis, Kennedy recalled: "Now, during the Freedom Rides, I had a number of meetings with these various civil rights groups, and I said that it wasn't as dramatic and perhaps there wasn't going to be as much publicity about it and as much attention on it, going down and registering people to vote, but I thought that's where they should go and that's what they should do. I had some conversations with Martin Luther King along those lines. I think he rather resented it. That's not what they wanted to do, and that's not where they were going to focus their attention. In fact, Martin Luther King and I didn't see eye to eye on some of these matters, nor did I with a good number of these other groups. I explained two reasons. Number one, that this was the area where we had the authority. We didn't have the authority to give protection or to move in some of these other fields. But we did have authority in voting, and we could do 177Guthman, We Band Of Brothers, pp. 102-103. 178Schlesinger, p. 324. 179Jbid. 55

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something about that. Secondly, I thought it could make a major difference and be far more help than anything else they could do, if they just focused attention and registered a hundred people a day. In some of these communities it could make a big difference. And that was the key to opening the door to all of what they wanted to accomplish in education, in housing, in jobs, and public accommodations. All rested in having the vote and being able to change the situation internally." 180 Most Black leaders did accept Kennedy's premise. Internal debate swirled around the argument of "direct action" versus "voter registration." SNCC's revolutionary minded director, James Farmer, "saw registration work 'as a tool by which consciousness might be aroused; politicized, and organized.' "181 In September, 1961, CORE was enveloped in the SNCC voter registration movement. In November, Martin Luther King declared: "The central front.. we feel is that of suffrage. .. (The vote would) give us the concrete tool with which we ourselves can correct injustice ... this is the pattern for changing the old South and with it, the nation as a whole."182 Robert F. Kennedy's belief that the exercise of the franchise would produce a basis for Black power was becoming manifest within the previously unconvinced black leadership. The most common critique launched against RFK's civil rights stance concerns the wiretapping of Martin Luther King, Jr., and his close ally, Stanley Levison. The wiretap of Levison began in March, 1962, and the Attorney General was aware of it. The wiretap of King began in October, 1962. King and Levison were targets of J. Edgar Hoover, more than they were targets of the Attorney General. Many researchers have shown that Hoover harbored a deep-rooted resentment against King, and the entire Black movement. Hoover was positive that the Black movement was part of the Communist apparatus that he felt was a threat to national security. Hoover's FBI was leaking information about King, and Levison, to Senate subcommittees, and the press, and it was managing the information so that it appeared there were close ties between King, Levison, and Communist groups. Hoover was claiming that he had information that Levison was an agent of the Soviet government. If there was direct evidence of a threat to national security, whether it be from ties to Communist groups, or other indicia, 180Guthman, Robert Kennedy: In His Own Words, p. 103. 181Schlesinger, p. 325. 182Ibid. 56

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RFK believed that the wiretaps were necessary. The taps were put into place with RFK's approval. Burke Marshall was ordered to investigate and was told by the FBI there was a link between Levison and the KGB. Whatever this evidence was is very unclear. There was never any direct evidence shown of a relationship between Levison and the KGB, and there was never any relationship shown between King and the Soviet government. The wiretaps at least disproved the Soviet connection. It is unclear whether the additional eavesdropping was done by the government, but if it was, it was without the approval of the Attorney General. When JFK was assassinated in. November, 1962, J. Edgar Hoover no longer had to answer to the Attorney General, and was relatively free to engage in whatever electronic surveillance that he wanted to. Prior to JFK's assassination, the wiretaps were subject to renewals only with RFK's authorization. Once Hoover had regained the autonomy he enjoyed prior to John Kennedy's election and no longer had to report directly to the Attorney General, and this occurred once LBJ became president, the controls left Robert Kennedy's hands.183 RFK was concerned with wiretapping, whether it be of Martin Luther King, or other members of society. RFK was familiar with the national security rubric, and the need for electronic surveillance as a means of gathering information. He wanted national legislation defming the parameters of electronic surveillance, and requirements for search warrants, to insure that such activity was not abused at the expense of civil liberties. In areas other than civil rights, RFK showed his resolve to pursue the ends of justice. The most poignant case involved a dear family friend. James M. Landis was a close personal friend of Joseph Kennedy, and had helped all of his children as confidant and mentor. Landis, a former dean of Harvard University's School of Law, had provided RFK help in studying for his law school exams, and appeared as a speaker at the University of Virginia School of Law, at Kennedy's request. Landis had served the government as Chairman of the SEC, in 1935; had helped to write the Securities Act of 1933. He was an articulate speech writer, author and legal scholar, but he did not keep his personal arrangements in proper order. In 1956, he asked for and received an extension on filing his tax returns. When it came time to renew the extension request, he forgot to do so. Then, when filing his 183Ibid, pp. 377-388 .. 57

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tax returns for.the next three years, he simply deposited the money owed the government into a bank account created for that purpose, placed each tax return in a drawer and absolved himself of any more concern. Landis felt he could not properly answer the question, posed on his tax form, of whether or not he had filed a return the previous year. When JFK became president, he asked Landis to make a thorough report on the regulatory agencies. The Internal Revenue SeiVice (IRS) uncovered the fact that Landis had not filed returns since 1960 and promptly set about investigating the matter. Landis then filed amended returns, paid his taxes and penalties. The money that he had put into the bank account covered the taxes he owed, and he procured a loan from Joseph Kennedy to pay the penalty imposed by the IR.s.184 The question of whether to prosecute Landis for failure to file tax returns turned on whether the late filing was voluntary or coerced. When asked by the IRS why he decided to file his returns, Landis answered, "Because Joe Kennedy told me I'd damn well better."185 The IRS decided that the late filing was questionable and recommended prosecution. RFK knew there was enough evidence on both sides of the legal equation to justify not prosecuting, and also, to seek indicttnent The money that Landis placed in a separate bank account was evidence of good faith. The fact that he did not file until an investigation had been launched, was prima facie evidence for an indictment. RFK excused himself from the case, and sent it to Louis Oberdorfer, assistant Attorney General for the Tax Division. Oberdorfer excused himself, because earlier in his career he had sought and received legal advice from Landis, who refused to charge him for that seiVice. The charge of conflict of interest loomed too great for Oberdorfer to continue with the matter. It was given to Nicholas Katzenbach, who decided to prosecute. Landis was allowed to plead and sentenced to thirty days. Even though he was in ill health, the judge refused to suspend the sentence, or allow him to serve his time in the hospital. Immediately, RFK certified that Landis would serve his time in the hospital. The trial judge then ruled that Landis would not be allowed to return to the Columbia Presbyterian Hospital, where he was undergoing neurological treatment; instead he would have to go to the Staten Island mental health ward. The Staten Island facility was notorious for housing crazed patients. Landis was in such a poor state of health 184Ibid., p. 419. 185Ibid. 58

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that it was felt .he could not smvive the detention. The sentence itself had infuriated the prosecutor, Robert Morgenthau. He felt there was not a determination of fraud, and the harsh sentence did not serve as a deterrent, especially given the mitigating circumstances of Landis' poor health.l86 Finally, the Attorney General had enough, and concluded that he had the legal authority to determine where Landis would serve his time. Katzen bach told RFK that if he were to allow the transfer of Landis to the Columbia Neurological Center, it would appear that he was intervening on behalf of a political ally and charges of cronyism would erupt in Washington. RFK would have none of such excuses. He said the decision to prosecute one of the staunchest family friends had to be made in the pursuit of justice. He was infuriated that after exposing Landis' conduct to the public, and placing him on trial, and convicting him, a charge of cronyism would surface. His statement was pure and simple, ... they can go to hell.'' 187 The prosecution of Landis rested a great deal on his service to the Kennedy family. The tax delinquency was discovered because he was on the Kennedy staff, and developing a report on the regulatory agencies.188 The decision to prosecute was in large part due to RFK's desire to see the integrity of the tax laws upheld, even if it meant exposing a family friend to legal proceedings; and because the charge of cronyism could not be allowed to surface.189 Once prosecution was completed, it was the determination of the Attorney General that justice had been served. Placing Landis in a more comfortable and medically safe area was humane, not cronyism, and RFK would face those charges head on, should they surface. This episode reveals that RFK would not forsake upholding the law, even it if meant prosecution of a true family friend, but neither would he stand by and watch the destruction of a person, purely to insure political standing. He talked it, and he walked it Another episode involving similar circumstances reveals the belief RFK had in the pursuit of justice. Igor Cassini was a family friend. His brother, Oleg Cassini, designed dresses for Jaqueline Kennedy. It was discovered that Igor had obtained money in an influence peddling scheme With the dictator of the Dominican 186Navasky, p. 388. 187Schlesinger, p. 421. 188Navasky, p. 389. 189Ibid., p. 390. 59

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Republic, Rafael Trujillo. Rather than dust the incident under the judicial rug, RFK pursued it to a conviction. The United States had broken diplomatic ties with Trujillo, and he wanted them restored. Cassini acted as Trujillo's intermediary, claiming to have influence on White House policies. Since he enjoyed a friendship with Joseph Kennedy, he also claimed the ability to gain favorable status for the Dominican strongman. RFK heard rumors of influence peddling and had the FBI investigate. When the investigation failed to uncover evidence of wrongdoing, the investigation was ordered stopped by the Attorney General. When Trujillo was overthrown, evidence came out of possible involvement with Joseph Kennedy. Peter Maas handled the story. He went to RFK and told him of Cassini 's secret agent status. The attorney general thanked him, and quickly moved to have the FBI investigation reopened This action led to a successful prosecution, which did nothing to endear RFK to his brother, his family, or their friends. It did make Peter Maas take notice ofRFK's pursuit of justice. Maas tells that friends within journalism told him that if he ran the story on Cassini, and Joseph Kennedy, "ruthless Bobby'll get you for that."190 Instead of going after Maas, RFK gained a successful prosecution of Cassini. He also earned the endearing respect from Maas: "I was amazed that a guy like Bob Kennedy would do this. I was so used to fixes in covering politics that this was such an extraordinary thing. There were fifteen different ways his people could have fouled up the or done something to have it thrown out of court But it obviously never entered his mind."191 RFK told Maas that he did not want to prosecute, but he knew he had to do "what is right."192 Robert F. Kennedy pursued the ends of justice. He placed the concept above politics. 190Stein, p. 79. 191Ibid., p. 81. 192Schlesinger, p. 418. 60

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CHAPTER FOUR SCREENING There is a very high correlation between the political philosophies of an appointing president and the decisions articulated by his judicial appointees.193 The two major investigations conducted in that area show empirical proof to support that conclusion. Robert A. Carp and Claude K. Rowland conducted studies on federal district court judges and successfully correlated their decisions to the political nature of the president who appointed them. In 1978, they delivered a paper to the annual meetirig of the American Political Science Association in New York describing their findings. The study showed: "the appointing President is a variable of considerable importance in influencing the behavior of trial judges. For example, the percentage of Johnson appointees voting on the liberal side of judicial questions is some twenty-one points higher than for Nixon appointees for the same years. Our investigation further suggests that the variables of political party affiliation and appointing President are not entirely synonymous. That is, some Presidents have obviously selected, or been able to select district court judges with greater ideological care than others ... Presidents tend to get out of their judicial appointees the kind of decisions they want from them." 194 C. Neal Tate conducted a study on the voting behavior of Supreme Court Justices in non-unanimous cases involving issues of civil rights and liberties, and economic cases, during the years 1946 to 1978. He discovered that a combination of several factors was always present. These variables were party identification, the appointing president, educational institution, and personal experience. Combined, they "accounted for seventy to ninety percent of the variance in non unanimous votes." 195 Tate concluded that one important attribute that was analogous with voting behavior was the appointing president of the particular justice. Tiris corresponded especially in civil liberties and civil rights cases where the "influence of the appointing presidents' presumed concern with the values of 1 9 3 Neil McFeeley, Awointment of Judges (Austin, TX: University of Texas Press, 1987) pp. 88-92. 194Claude R. Rowland and Robert A. Carp, The Influence of Background Characteristics on the Voting Behavior of Federal District Court Judges (Paper presented at the meeting of the American Political Science Association, New York: 1978) p. 27. 195 C. Neal Tate, Personal Atnibute Models of the Voting Behavior of U.S. Supreme Court Justices: Liberalism in Civil Liberties and Economic Decisions. 1946-1978, American Political Science Review, 75 [June, 1981) p. 355.

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their appointees is clearly documented."196 In economic cases, Tate found "the influence of appointing presidents is again revealed."197 He also discovered that the two Johnson appointees to the Supreme Court, Justices Abe Fortas and Thurgood Marshall were the most revealing of these corollaries. In the area of civil rights and civil liberties, Fortas scored 84.3 percent liberal, while Justice Marshall scored 84.2 percent liberal. In the area of economic decisions, Justice Fortas scored 67.6% liberal, Justice Marshall scored 67.5% liberal.198 The first appointment Richard Nixon made to the Supreme CoUrt was Chief Justice Warren Burger, who was appointed because his ideological bent agreed with the President's)99 Ideological criteria were the main reason for the ensuing Nixon appointments of Justices Harry A. Blackmun, Lewis F. Powell and William H. Rehnquist.200 With these appointments Nixon attempted to implement a new era of judicial craftsmanship. Chief Justice Burger proved unable to swerve the Court radically away from the ideology and stare decisis presented by the Warren Court However, his Court did frustrate and nullify certain precedents established concerning the exclusionary rule, obscenity, issues concerning the establishment clause of the First Amendment, and civil rights issues. Burger had the opportunity, but failed to lead the Court intellectually.201 Justice Blackmun, Nixon's second appointee, and personal friend of Burger, initially exhibited a fondness for voting with the Chief Justice. Their voting records were nearly synonymous, prompting court watchers to label them the "Minnesota Twins" since both hailed from that state, and they were equally conservative.202 Untill973, Justice Blackmun voted with Burger ninety percent of the time. 203 Then came his landmark v. Wade [19731 and a concomitant shift in his voting behavior. Blackmun is now voting seventy percent of the time with the liberal holdovers, Justices Brennan and Marshalt.204 The appointment of Justice Powell gave the Court a moderate-196Ibid. 197Ibid., pp. 362-363. 198Ibid. 199JJob Woodward and Scott Annstrong, The Brethren: Inside the Supreme Court (New York: Avon Books, 1979) pp. 6-9. 2000avid M. O'Brien, 'The Supreme Court: From Warren to Burger to Rehnquist", from American Politics: Classic and Contemporary Readings, edited by Allan J. Cigler and Burdett A. Loomis, (Boston: Houghton Mifflin Company, 1989) pp. 616-618. 201 Ibid., p. 618 202Lewis Lipsitz and David M. Speak, American Democracy (New York: St. Martins Press, 1989) p. 430. 230"Brien, p 618. 204Ibid. 62

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conservative vote. The appointment of Justice William Hobbs Rehnquist produced an ardent spokesman for the conservative viewpoint205 Chief Justice Warren, and Associate Justices Fortas and Black had left the Court, being replaced with the amalgam of Chief Justice Burger, Blackmun, and ultra-conservative Rehnquist. By the end of 1971, the once liberal majority of the Warren Court had been reduced to a minority within the Burger Court, consisting of Justices Douglas, Brennan, and Marshall. Justice White, a JFK appointee, had moved to the conservative camp. Justice Potter Stewart, a Frankfurteresque restrainist, who nearly became Nixon's choice to replace Warren in 1969, was a political moderate. When Powell and Rehnquistjoined the Court in 1972, the Court presented a new ideological structure. While not following the precise edicts of Nixon and his handpicked Chief Justice, the Court was capable of nullifying and frustrating the stare decisis that came from the Warren Court With Justices Stewart and Powell echoing Burger, Rehnquist, White, and then-conservative Blackmun, Nixon had accomplished a stacking of the Court, with his four appointees. The major decisions of the Warren Court certainly ran aground. The Burger Court either reversed, retarded, or restrained the major advancements in the areas of civil rights, civil liberties, individual versus national powers, defendant procedural rights and First Amendment issues. The one major area where the Burger Court furthered a trend of the Warren Court was in the realm of the right to privacy. The political appointments of President Reagan most certainly have eroded that right as it was articulated in 1965.206 Justices Scalia and Kennedy have joined with Chief Justice Rehnquist and Justice White in calling for an overturn of Roe. The fourth Reagan appointee, Justice O'Connor, stands in the breach on the issue of right to privacy. Her vote during the upcoming session will determine whether Roe v. Wade [19731 remains standing precedent. The ripeness of the right to privacy for an overturning action is a most salient illustration of how the Supreme Court acts as a political arm of the national government Had Robert F. Kennedy been the 37th President of the United States, the four Nixon appointees would have never become Supreme Court Justices. It is reasonable to assume that the articulation of the right to privacy would have acquired a solid underpinning because Justice Douglas would have 20Sibid., pp. 618-619. 206See Griswold v. ColUlecticut, 381 U.S. 479, 85 S. CL 1678, 14 L. Ed. 2d 510 [1965] and Webster v. Reproductive Health Services, 109 S. Ct. 3040 [1989]. 63

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been able to assemble an overwhelming majority with only Justice White dissenting. Major Factors Considered in Supreme Court Appoinnnents: There are numerous considerations in the making of Supreme Court appointments. The identifiable criteria include merit, experience, gender, age, race, ethnicity, religion, party politics, and personal loyalty. Merit is defmed as a combination of competence, intellectual attainment and quality. The characteristics would include academic credentials, success within the legal profession, and scholarly acceptance by peers. Measures include the academic institution attended and degrees conferred, scholarly publication, and reputation within the legal field. Of the fifty Supreme Court Justices appointed in the twentieth century, twenty percent received their law degree from the Harvard School of Law; twelve percent from Columbia; eight percent from Yale; six percent from Stanford and Michigan, respectively; and 4% from each of the following schools: University of Virginia, Washington and Lee, Northwestern, and the University of Cincinnati. There was one appointment from each of the following law schools: University of Alabama; Albany; University of California; Centre College; University of Colorado; Cumberland University; Howard University; University of Kansas; Mitchell College; New York University; University of Pennsylvania; and University of Texas. Of the past seven appointments, three received their law degrees from the Harvard School of Law; three from Stanford University's School of Law. Of all Supreme Court Justices, over attended Ivy League, or "prestigious" law schools. 207 Academic reputation is also found within teaching credentials, especially if the individual taught at Harvard, Yale, the University of Chicago, or the University of Michigan Law Schools. Publications are utilized to illustrate scholarly activity, and to examine the political theory, legal reasonings, aptitudes and proclivities of the individual. For judges who are elevated from lower federal benches, an examination of their judicial opinions offers great insight into their legal merit, and will also serve as a barometer of their ideology in deciding certain issues. Service within the Department of Justice is often a prerequisite for appointment to 27Thomas R.Dye and Hannon Zeigler, The Irony of Qemocracy: An Uncommon Introduction to American Politics (Pacific Grove, CA: Brooks/Cole Publishing Company, 1987) pp. 360-361. 64

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the Supreme Court or the lower federal bench. Performance can be scrutinized, both professionally, and politically. Determinations can be made regarding loyalty and merit, depending upon the achievements of the individual. This is especially salient in regards to Robert Kennedy. As Attorney General, he was in charge of the Department of Justice, which originated data and then offered recommendation for judicial appointments in both the JFK and LBJ administrations. If the prospective judicial nominee failed to gain positive recommendation from the Department of Justice, the probability of appointment was zero percent. In addition, RFK gained insight into possible judicial appointees from the screening process that took place at the Justice Department. As Attorney General, he observed and supervised Assistant and Deputy Attorneys General, U.S. Attorneys, and the Solicitor General, thereby becoming familiar with individuals and more able to assess their professional and political tendencies. Of the 105 appointments to the Supreme Court, 6.7% served as United States Attorneys General; and 3.8% were Assistant or Deputy Attorneys General, or U.S. Solicitors General.208 Nearly ten percent occupied other federal appointive office; and 23.8% occupied either a federal court of appeals or district court position before appointment.209 Twenty percent of the appointments occupied a state judgeship. Since Earl Warren's nomination in 1953, there have been sixteen successful appointments to the Court. Over fifty-six percent of these appointments have come from the Circuit Court of Appeals; twenty-five percent came from within the Justice Department. Lewis F. Powell is the only Justice not to have served in the federal government, or occupied a federal or state judgeship, prior to appointment. Only Reagan appointee Sandra Day O'Connor had not served in a position within the executive branch, or on a lower federal bench.210 Pan of the screening process also concerns ratings by the Committee on the Judiciary of the American Bar Association (ABA). Categories of merit are "exceptionally well qualified," the highest possible rating; followed by "well qualified." The lower tier consists of "qualified" and "not qualified." There is enough evidence to suggest that the ABA ratings are not authoritative from either 208Extrapolated from data on biographies of Justices, found in Elliot, Stephen P., A Reference Guide To The United States Sumeme Court (New York: Facts On File Publications, 1986) pp. 255-359. 209Jbid. 210Jbid. 65

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the executive or senatorial standpoints. President Nixon became the first president to announce he would not nominate anyone to the federal bench who did not meet a minimum ABA approval of "qualified," with one broad exception. That exception would be for Supreme Court nominees.211 When Justice Fortas was forced to resign in 1969, President Nixon sent up two successive nominees who were rejected by the Senate. The first nominee, conservative Clement F. Haynesworth, failed to pass the muster of Senate confirmation hearings and fell to a vote of 55 to 45, on November 21, 1969, amid controversy of conflict of interest charges.212 Angered, Nixon sought revenge. According to Professor Laurence Tribe of Harvard University's School of Law, "Nixon had apparently decided to use his next nomination to teach the Senate a lesson at the expense of the Supreme Court."213 Nixon promptly sent up his second nominee, G. Harrold Carswell. Carswell was given "qualified" ranking by the ABA committee.214 Unfortunately, he was not qualified for the position of Supreme Court Justice. Carswell was a segregationist, and had "compiled an almost unequaled record for being reversed by higher courts, and earned a solid reputation for shallow and dubious rulings" as a federal district judge in the Fifth Circuit. 215 In more than a dozen civil rights and habeas corpus cases, Carswell had been reversed unanimously by the Fifth Circuit Court of Appeals.216 Louis H. Pollak, the Dean of Yale's School of Law, referred to the nomination by stating that Carswell "presents the most slender credentials of any man put forward in this century."217 The breadth of his mediocrity was testified to by the man chosen to spearhead the nomination through to confmnation, Senator Roman Hruska (Rep.-Nebraska). He offered this rendition on Carswell's credentials, "There are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren't they?"218 On April 9, 1970, the Senate 211Congressional Quarterly, The Supreme Court: Justice and the Law (Washington, D.C.: Congressional Quarterly, Inc., 1973) p. 68. 212Woodward, pp. 60-61. 213Laurence Tribe, God Save This Honorable Court: How The Choices of Supreme Court Justices Shapes Our History (New York: Random House, 1985) p.82. 214David M. O'Brien, Storm Center: The Supreme Court in American Politics (New York: W.W. Norton and Company, 1986) p. 55. 215Tribe, p. 82. 216Jack Bass, Unlikely Heroes, (New York: Simon and Schuster, 1981) pp. 318-319. 217Woodward, p. 83. 218Ibid. 66

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answered Nixon's challenge and voted the nomination down, 51-45, with several key Republicans joining the majority.219 ABA ratings have not received uniform acceptance in academic and professional circles. Senator Paul Simon (Dem.-Illinois) points out, "The ABA committee is approving too many judges it should not be approving. The bar needs more backbone and higher standards. "220 Simon is critical of the ABA merit system, calling for modifications. Specifically, he wants the Association to address the quality and not the views of the nominee. He points out it takes only two additional votes to move from "not qualified" to "qualified." If the nominee can shake those two votes, he or she will come to the Judiciary Committee with a favorable rating. Senator Simon complains that because of such chicanery mediocre judges are being confirmed, with the overall impact of lowering the quality of the Federaljudiciary.221 Those thoughts are echoed by Professor David M. O'Brien, Professor of Judicial Politics at the University of Virginia. Professor O'Brien is noted as one of the preeminent constitutional scholars in America Describing the nomination and confirmation process as political "horse-trading," he addresses the ABA's role in detail. Because of the Haynesworth and Carswell debacle, where a mediocre judge was declared "qualified," the rating system was changed. Previous classifications were changed to "highly qualified," "not opposed," and "not qualified." After Harry Blackmun's the ABA lost prestige and was no longer consulted regarding_Supreme Court appointments. In 1975, it was reintroduced into formal proceedings on Supreme Court nominees. Professor O'Brien is quick to point out that "the ABA committee is not above politics, either in rating nominees or in being lobbied by senators, White House officials, and justices. "222 He illustrates this point with the example of Justice Powell's lobbying the ABA committee to gain a "qualified" rating for one of his former law clerks, even though the clerk had failed to meet minimum requirements for legal practice and trial experience. 223 219Jbid. 220Paul Simon, J''udgin Judges: The Senale's Role in Judicial Appoinunents", from Governing: Readings and Cases In American Politics, edited by Roger H. Davidson and Walter J. Oleszek {Washington, D.C.: Congressional Quarterly, Inc., 1987) p. 359. 221Ibid. 2 220'Brien, pp. 56-57. 223Jbid. 67

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Gender and race have been major considerations in lower federal court appointments, and to a lesser degree so has ethnicity. LBJ wanted to bring minorities, especially blacks, into the federal judiciary process. 224 Thurgood Marshall is quoted as saying about President Johnson's desire to have him as Solicitor General, "He wanted people, young people, of both races to come into the Supreme Court Room" and have someone say, ... but he's a Negro!"225 LBJ was so concerned with placing blacks into the judicial system he was willing to trade political power in order to get senatorial confirmation of his nominees. His record speaks for itself. His Attorney General, Ramsey Clark stated: "In the judiciary he appointed more Negro judges than all the preceding presidents combined."226 LBJ also made it a point to replace outgoing blacks with incoming blacks. He did not want to see a reduction of numbers because of retirement or promotion.227 Beginning with LBJ, gender became a qualification for nomination. He made it point to recruit women for nomination, and demanded a statistical abstract of gender appointments be kept and referred to when vacancies came up. Johnson made the first Circuit Court of Appeals nomination of a woman, since President Roosevelt had in 1934. In nominating Shirley Hufstedler for a vacancy on the Ninth Circuit, he made only the second appointment to the appeals court of a female in the nation's history.228 Gender became an issue in Supreme Court appointments when Justice Sandra Day O'Connor was nominated in 1981. In regards to Supreme Court appointments, President Johnson broke major ground when he nominated the first black to the Supreme Court, Justice Thurgood Marshall. Originally brought into the Johnson Administration in an affirmative action program, Marshall served as U.S. Solicitor General. In respect to both the Marshall and O'Connor appointments, race and gender would be major qualifications to fill the vacancy, should either Justice step down from the Coun.229 Ethnicity was a major concern in the appointment of Justice Scalia, though his judicial philosophy was the paramount factor in his screening process. Ethnicity, in this case, provided support to the ideological considerations that reigned supreme. If Scalia were to step down, 224McFeeley, p. 80. l2SJbid., p. 81. 226Jbid. 227Jbid. 228Jbid., pp. 74-77. 229Dye, p. 363. 68

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his replacement would likely be selected more towards ideological bent than Italian heritage.230 Since Reagan's appointment record concerning minorities and women shows radical decline from the administration of his predecessor, President Jimmy Carter, the value of race, gender and ethnicity, as criteria, pales when compared to political ideology, as a screening methoct.231 Even though Reagan made 31.2% more federal judicial appointments than Carter, he appointed 11.8% fewer women, 2.9% fewer Hispanics, and 16% fewer blacks.232 Numerically, he appointed nine fewer women, and thirty fewer blacks,233 while having 120 more vacancies to fin.234 President Carter addressed the issue of ethnicity, gender, and race with positive action. He appointed fony women, thirty-eight blacks, and sixteen Hispanics to the lower federal courts, more than all previous presidents combined.235 President Caner did not have the opportunity to appoint a Supreme Coun Justice, but projection can be made relying upon the positive action that he did take regarding the lower federal benches that he would have appointed a Justice using the criteria of race, gender, and ethnicity as a portion of his screening method. It is plausible to argue that an ethnic seat has been established with the Scalia appointment, and the pursuit of a replacement would require ethnic minority status as a major qualification. 236 However, ideology would reign superior in the screening criterion. If an ethnic minority could be found who had compatible ideology, then the criterion of ethnicity would be included; but the primary criterion would still be ideology. Religion has become a major consideration in appointments to the Supreme Court Of the 105 appointments to the Coun, over seventy-nine percent were Protestant, and if we add the Unitarian religion as having come from established Protestantism, the figure balloons to 85.7%; 8.6% were Roman Catholics; and 4.8% were Jewish.237 It could be argued that religion has proven more a barrier to 230Jnterviewswith Professor Warren Weston, Professor of Constitutional Law, Metropolitan State College of Denver (Denver, CO: JW1e 21, 1990) and with Professor Norman Provisor, Professor of Constitutional Law, Metropolitan State College of Denver (Denver, CO: IWle 28, 1990). 231Bums, p. 444. 232Johnson, p. 579. 233Bums, p. 446. 234Johnson, p. 579. 235Bums, p. 444. 236Jnterview with Professor Warren Weston, IWie 21, 1990. 237Steffan W.Schmidt, with Mack C. Shelley, IT, and Barbara A. Bardes, American Government and Politics Today (St. Paul, MN: West Publishing Company, 1989) p. 503. 69

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appointment than a measure of qualification. Considering only one woman, and one black, have ever been appointed to the Supreme Court, the barrier argument is germane. However, if the view taken is that the race and gender criteria have been addressed within the last twenty-five years, then it could be argued that the barriers have fallen. The argument that the barriers have fallen is especially salient because the likelihood that race and gender will be paramount qualifications when Justices Marshall and O'Connor step down is quite high. When examination turns to religion as a barrier or qualification, it is noteworthy that both the "Roman Catholic seat" and the "Jewish seat" were created from legacy, and not formality. In 1835, Chief Justice Taney was the first Roman Catholic appointed to the bench. But it was his friendship and political identification with President Jackson that were primary factors in his appointment, not his religion.238 The next Roman Catholic was appointed in 1894, when Justice Edward White assumed his position on the bench. Since that time, the Court has virtually always had one, and usually two Catholics on the bench. An exception occurred when Justice Frank Murphy died, in 1949. His replacement, Justice Clark, was not Catholic, and the Court remained without one until President Eisenhower appointed Justice William Brennan, in 1956. Justice Brennan's appointment had clear religious overtones, as Eisenhower stated he wanted "a very good Catholic" on the bench.239 The legacy of the "Catholic seat" came about as an accident, since religion did not play a major role as a qualification in appointment, until this century. The same can be said regarding the "Jewish seat." With the appointment of Justice Louis Brandeis, in 1916, the "seat" was established. Justice Brandeis' appointment was not based upon his religion, but since his appointment, there has been a clear and constant expectation the Court would retain its Jewish seat. 240 Party politics appears to be a major factor in appointment of federal judges. Statistical abstracts strongly suggest that conclusion. Since the first administration of Grover Cleveland, the lowest percentage of same-party appointments was 82.2 percent241 LBJ. had a percentage of same-party appointments to the district courts of 94.8%, and to the courts of appeals of 95.0%. 242 It could also be inferred that 2380'Brien, p. 61. 239Ibid. 240J:bid. 241McFeeley, p. 83. 242Ibid. 70

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judgeships are. rewards for political activity. If same-party appointment correlates to party activism, or identification with particular ideology, the conclusion of the abstracts is weakened. There might be a coincidental relationship with party identification to political ideology, and there would likely be a correlation to participation in campaign activity for elective office. LBJ appointed twenty-three non-Democrats, including sixteen Republicans, to federal judgeships. This was the largest number of opposite-party appointments since the tum of the century.243 It would suffice to say party affiliation is a factor in judicial selection, but it would be more reasonable to say that political activity, either within the party apparatus, or within the party ideology, is a key criterion. If appointment were tied to 11 senatorial courtesy, 11 party identification would be a major factor. Since Supreme Court appointments are of national concern, individual senators have little influence based upon their state identification. Senatorial courtesy has no place in Supreme Court nominations. 244 It has also lost esteem in terms of court of appeals appointments.245 However, senatorial courtesy should not be confused with taking into consideration the power individual senators wield within the chamber, and especially, within the Senate Judiciary Committee. Personal loyalty is a significant factor in Supreme Court nomination. Justice Abe Fortas was a long time friend and ally of President Johnson; William Rehnquist was a crony of Richard Nixon. Loyalty and policy affiliation can be determined by professional interaction. In this respect, the most recent appointees, Justices Byron White, Arthur Goldberg, Abe Fortas, Thurgood Marshall and William Rehnquist, had professional associations with the President that appointed them. Goldberg served in the JFK cabinet as Secretary of Labor; White, in the Justice Department under RFK; Marshall was U.S. Solicitor General in the Johnson Administration; Fortas was Presidential Adviser and Undersecretary of the Interior to LBJ; and Rehnquist was serving in Nixon's Department of Justice at the time of his appointment. Chief Justice Burger was serving on the Court of Appeals, and had service time in as Assistant U.S. Attorney General; Justice Scalia had served as Assistant U.S. Attorney General; Justice Kennedy was serving on 243Ibid. 2440'Brien, p. 53. 245Bums, p. 443. 71

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the federal district court. This activity allowed for evaluation of their professional and legal affiliations and proclivities, by their appointive presidents. Age is a criterion, especially as recognition of legacy has become part of a president's political agenda. Presidential policy decisions can set agenda far into the future, as did the Truman Doctrine in foreign policy and the New Deal philosophies of President Franklin Roosevelt, in domestic policy. However, such a duration for public policy is not the norm. Conversely, the legacy of judicial appointments is enduring, forever cloaked within the perpetuity of life-time tenure. President Carter was the only full-term president who did not appoint a single Supreme Court Justice, but he did have the opportunity to make over 250 lower federal court appointments. Congress passed legislation creating 117 district court, and 35 court of appeals positions, allowing Carter an opportunity unprecedented for single-term presidents.246 These appointees balanced the judicial conservativism of Nixon's appointments, leaving behind a Carter legacy that Reagan addressed. More than Nixon, who campaigned on a "rebalancing" plank, Reagan did rebalance the federal judiciary with political appointees. He appointed 346 judges, and one of the criteria, after the ideology screening was met, was age. Nearly all of the 346 appointees were "comparatively" young, so their influence will be felt "well into the next century."247 The AIWointments: Robert F. Kennedy was very familiar with the screening process for Supreme Court appointments. As cabinet member and head of the screening agency, he knew the process from the inside. As close personal advisor and campaign manager for his brother, he also was privy to the inner workings of senatorial appeasement, and the impact oflong-range policy planning that was considered when judicial appointments were made. He clearly understood the inner workings of the Senate chamber, having a history of activity dating back to the McCarthy Committee. His work with Senator McClellan's select committees gave him experience with the staffs responsibilities during hearings and the policy making process. As Senator from New York, he had in-chamber experience 246Peltasen, p. 31. 247Bums, p. 445. 72

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dealing with colleagues one-on-one. As Attorney General, he had close and intense dealings with the Chainnan of the Senate Judiciary Committee, Senator James Eastland, Democrat from Mississippi. The episodes in the early Sixties provided Senator Eastland with a personal understanding of RFK's resolve on issues of justice and civil rights. Both men had high regard for senatorial courtesy regarding lower court appointments, especially when dealing with southern appointments. As Attorney General, RFK took part in process of screening both the White and Goldberg nominations. By 1968, it was observable that Justice White had steered a judicial course away from the political mainstream and was harboring on the conservative side. Having an opportunity to observe Justice White's judicial behavior, RFK would have been determined to take a very active role in the screening of the four appointments he would have had the opportunity to make as President. 73

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Table 4.1. Chart of Judicial Vacancies (1969-73) Name Earl Warren (CJ) AbeFortas Hugo Black John Harlan *List of Possible Vacancy 1969 1969 1971 1971 Appointees: Date vacancy Filled June 23, 1969 May 12, 1970 December 6, 1971 December 10, 1971 Frank Johnson Abraham Ribicoff Robert Morgenthau J. Skelly Wright Paul Freund Warren Christopher Arthur Goldberg H. Jack Miller List of Probable Appointees: Archibald Cox Burke Marshall David Bazelon John Douglas Ramsey Clark** Griffm Bell** Louis Oberdorfer** *The list of possible appointees to the Supreme Court is reduced to nine individuals. For the pwposes of projection the names that appear on both lists have been filtered through the screening process identified earlier in this chapter. **It is projected that from this group the fourth appointment would have been made. It is further projected that the fifth appointment to the Supreme Court would have come from this group had RFK served a second term. Frank Johnson Frank Johnson had the qualifications needed to become a Supreme Court justice, but he would not have survived the screening process. Johnson had intense feelings on personal freedoms, which came from his childhood, and his heritage. Born in Winston County, Alabama, he was reared in an environment that had deep rooted ideals concerning self-determination. Winston County was non-slave owning and agrarian, and believed it owed no allegiance to any government except itself. When Alabama seceded from the Union, Winston County voted to secede from Alabama. The county consisted of yeoman farmers, who were proud people. They engaged both Union and Confederate soldiers, and were known as Jacksonian Republicans. In a state that became heavily Democratic, Winston 74

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County remained in the Republican fold. In fact, Frank Johnson, Sr., served in the Alabama legislature as the sole member of that party. Johnson attended law school with George Wallace and became friends with the man he would later threaten to incarcerate. He joined the Army and earned a Bronze Star and Purple Heart for his duty at Normandy. Following his recovery from wounds, he served as counsel in military justice, representing a sergeant who was charged with beating military prisoners. Johnson proved that the orders for cruelty had emanated from higher up, and exposed the attempted cover-up of the operation by a Brigadier General. This episode reveals a person capable of legal battle, but also contemptuous of abuse of authority. It reveals a personality of someone willing to take on the system in order to see that justice is done. 248 Johnson returne4 to Winston County to practice law, became a U.S. Attorney, and at the age of thirty-seven, was named to the federal bench. He attended the 1948 National Convention as a delegate from Alabama, and supported Thomas Dewey. There he met Herbert Brownell, who was serving as Dewey's campaign manager. Four years later, Brownell would become campaign manager for Eisenhower, and then Attorney General. During the campaign of 1952, he and Brownell solidified their relationship, with Johnson serving as president of Veterans for Eisenhower for the state of Alabama. Following Eisenhower's election, Johnson was named U.S. Attorney for the Middle District of Alabama. As U.S. Attorney, Johnson exposed a system of peonage that was occurring in Alabama. While investigating a murder case in which a black man had been horsewhipped to death, he discovered that two white men had routinely paid fines of black convicts, and then transformed them into virtual slave laborers. 249 Johnson's work as U.S. Attorney was well respected in Washington. When District Judge Charles Kennamer died, Frank Johnson sought and received his seat on the federal bench. In 1955, he was appointed the youngest federal judge in America. In 1956, Johnson, along with Judge Richard Taylor Rives, took a historical step in American jurisprudence, and a magnificent step away from any future appointment to the Supreme Court. Both Johnson and Rives were members of a three-judge panel hearing the case on segregated bus seating in Montgomery, entitled Browder v. Gayle. Voting 2-1, against senior Judge Seybourn Lynne, they 2 48Bass, pp. 66-67. 249Jbid. 75

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"issued the order striking down segregated seating on city buses in Montgomery."250 The opinion, written by Judge Rives, extended the decision of Brown v. Board of Education f19541 beyond the scope of education, and into other areas of the public domain. The craftsmanship of the decision left little doubt that both judges placed equal protection and due process of the law superior to the custom of "good ole boy" Southern justice. Custom would fall to the law. The decision was appealed and then upheld on November 16, 1956, by the Supreme Coun.251 On December 21, 1956, blacks boarded buses in Montgomery, Alabama, on a first-come, first-serve basis. The decision of Judges Johnson and Rives was a watershed in supplanting previous segregative custom with equal protection and due process of the law. It was the first of several decisions that would place Frank Johnson, Jr., on a course away from the Supreme Court. Alabama state Senator Sam Engelhardt, of Macon County, implored "the real white people of Alabama never to forget the names of Rives and Johnson."252 They did not. For the next decade, both Rives and Johnson received death threats, hate mail and obscene phone calls. An attempt was made on Judge Johnson's life when a bomb exploded at his father's house. The three-judge panel that Rives and Johnson shared went on to strike down segregatory and discriminatory practices in schools, parks, the jury selection process, post secondary education, voting rights, and legislative reapportionment.253 Johnson ordered "extensive and immediate desegregation of schools in Alabama."254 In the case U.S. v. U.S. Klans. Knights of Ku Klux Klan. Inc .. 194 F. Supp. 897 [19611 Johnson enjoined the Ku Klux Klan from interfering with the Freedom Rides in 1961; and in 1965, he quashed Governor George Wallace's order banning Martin Luther King's march from Selma to Montgomery, and ordered the governor to provide adequate police protection to insure the marchers safety. 255 Johnson's opinion in Gomillion v. Lightfoot [19601 was the precursor to answering the political-questions doctrine in outlawing discriminatory 250Ibid p. 19. 251 Ibid., p. 76. 252Jbid., p. 77. 253Ibid., p. 82. 254 Leon Friedman, Southern Justice (New York: Pantheon Books, 1965) p. 192. 255Ibid. 76

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gerrymandering in the drawing up voting boundaries, especially in the South. It also signaled that the federal district court, as well as the Fifth Circuit Court of Appeals, was going to engage in judicial craftsmanship, if allowed to by the Supreme Court, in striking down the discriminatory practices of state and local governments. In Gomillion, the plaintiffs charged they had been discriminated against by the Alabama state legislature because of the gerrymandering of Tuskegee in Macon County. Johnson ruled that because reapportionment had been deemed within the "political thicket" by stare decisis, he had no choice but declare adherence to the political questions doctrine and decided against the plaintiffs because they lacked standing to sue. He also took care to announce that the gerrymandering that had taken place created a voting zone that resembled a "sea monster" but he was powerless to rule on "motives. "256 In judicial language, this situation presented higher courts with an issue on which to engage the problem of the political questions doctrine as a barrier for relief. The case went to the Fifth Circuit, where Johnson was upheld, and was then appealed to the Supreme Court. The Court decided that if there was a "motive" of racial discrimination, then the plaintiffs would have standing to sue. It sent the case back to Johnson, for a finding of whether or not there had been a motive of racial discrimination.257 The case became a watershed by allowing Fourteenth and Fifteenth Amendment voting rights claims to be decided by the judiciary. The decision knocked the door to the courts off its hinges. Johnson's opinion finding racial discrimination as the motivation laid the foundation for dismantling of the political questions doctrine as a bar against blacks suing to end the custom of discriminatory voting systems in the South. The end of Jim Crow laws, poll taxes, literacy tests, grandfather clauses and other disenfranchising methodology employed in the South was at hand. Following Gomillion came a succession of decisions by the Supreme Court addressing the political questions doctrine, shattering both it and the custom of judicial acquiescence in matters of Southern gerrymandering .. The judiciary met legislative discrimination head on in Baker v. Carr. 369 U.S. 186 [19621, in which the Fourteenth Amendment was addressed; in Gray v. Sanders. 372 U.S. 368 [19631. in which the one-man, one-vote doctrine 2S6Bass, p. 100. 257Jack Bass and Walter DeVries, The Transfonnation of Southern Politics: Social and Political Consequence Since 1945 (New York: Basic Books, Inc., 1976) p. 82. 77

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was articulated; in Wesbezy v. Sanders. 376 U.S. 1 09641. in which the doctrine was extended to Congressional districts; and finally, in Reynolds v. Sims. 377 U.S. 533 09641, in which the Supreme Court challenged forty state legislatures to redraw boundaries in compliance with the one-man, one-vote dictum.258 No longer would the courts allow the practice of discriminatory gerrymandering to dilute the voting rights of blacks, especially in the South. Now, Southern legislatures would not be able to find refuge behind the political questions doctrine. Senator James Eastland, chairman of the Senate Judiciary Committee, knew that Judge Frank Johnson, Jr., had authored the district court opinion that established the momentum of breaking down the Old South. Johnson would not have made it past Senator Eastland's committee without a major political battle. The threat of the "blue slip" mechanism or Senate filibuster would have influenced any attempt at Supreme Court nomination, and very seriously endangered confmnation. Even though Robert F. Kennedy had a great deal of respect for Judge Johnson, he knew full well the power Senator Eastland could wield. He would not have challenged Eastland by sending Johnson up for confirmation. That was a political confrontation RFK would have steered clear from. Johnson was later appointed to the Fifth Circuit Court of Appeals by President Carter, one year after Senator Eastland retired from office. Frank Johnson readily passed the screening process on every count except the ability to get confmned by the Senate. He might have gained confmnation, had RFK decided to press his nomination, but the political cost was too great to bear. Johnson was young, he showed remarkable skill at judicial craftsmanship, knew how to work within a judicial panel and was staunchly in favor of fudividual freedom. He had shown valor while serving the country in time of war, had graduated from the University of Alabama School of Law, and was deemed meritorious by the ABA. As a member of the opposite party, he normally would have faced a smooth confirmation process, but his decisions as district judge had offended the customs and mores of the Old South. Southern Senators, such as Strom Thurmond, John Stennis and James Eastland, all of whom possessed seniority and power in the chamber, would have exacted a price for allowing the nomination pass. That price was simply too high for a President to pay. 258Mason, p. 36. 78

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J. Skelly Wright J. Skelly Wright was another federal district judge who engaged in judicial craftsmanship in transforming the Old South into a new, tolerant and desegregated South. Growing up in New Orleans, he came from a Catholic, middle-class background. He attended Loyola University, in New Orleans, and later gained his law degree from its night school. He served in the Coast Guard, in World War II, commanding a sub-chaser in the North Atlantic; later serving as attache to the American embassy in London. Wright manied an admiral's daughter, and fmally returned to New Orleans, serving as senior assistant to U.S. Attorney Herbert Christenberry. After nine years as an assistant, in 1948, Wright was elevated to U.S. Attorney, when Christenberry received a district judgeship. Wright argued one of the most colorful cases ever to reach the Supreme Court. In Francis v. Resweber. 329 U.S. 459 f1948l. a man who had received the death sentence withstood the electrocution and brought suit to enjoin the state from making a second attempt on his life. The issue concerned denial of due process and cruel and unusual punishment violative of the Eighth and Fourteenth Amendments. The Coun ruled against the man 6-3, and the state successfully imposed the death sentence on its second effon.259 The following year, a vacancy came up on the Fifth Circuit Court of Appeals, and Wright went after it. He had experience working with then-Attorney General Tom Clark, and sought the nomination. President Truman, angry at the Dixiecrat role played by southern Senators, agreed to the nomination without a formal screening. When Clark was appointed to the Supreme Coun, the new Attorney General was informed by the Circuit's Chief Judge that Wright was too young, and the Circuit nomination went to district judge Wayne Borah. Wright was named to replace Borah on the district court by President Truman. Similar to Johnson, at the age of thiny-eight, J. Skelly Wright became the youngest sitting district court judge. He quickly showed his judicial skill in Wilson v. Board of Supervisors. 92 F. Stipp, 986 f1950J when he ordered the admission of a black student into Louisiana State University's (LSU) School of Law. Basing his decision on a remedial action, he found that the black law school 259William O.Douglas, The Court Years: 1939-1975. The Autobiography of William 0. Douglas (New York: Random House, 1980) pp. 122-123. 79

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at Southern University was unequal, and, therefore, LSU had to admit the black student. The importance of this case is that it was decided four years prior to Brown v. Board of Education [1954].260 Judge Wright later ordered the admission of a black undergraduate to LSU, on similar grounds, and was reversed by the Fifth Circuit After Brown was decided, the Supreme Court remanded that case to Wright, with instructions to issue a decision consistent with the new edicts. Wright later ordered the end of segregative practices in New Orleans public accommodations, including parks and buses. In 1960, the New Orleans public school system became a flagship in southern desegregation with J. Skelly Wright as the helmsman. As social and political hysteria became manifest in the white communities regarding desegregation of the public schools, Wright became "the most hated man in New Orleans."261 He was not a social engineer; instead, he had faith in the law. Wright believed the Supreme Court had ordered the end to "separate but equal" rationales and he interpreted the language of Brown to mean immediately. Other judges and politicians were using the language "all deliberate speed" to mean whenever the social hysteria calmed to allow a deliberate and smooth process to take place. In that sense, Wright was nine years ahead of the Supreme Court; it fmally put an end t9 "all deliberate speed" in 1969.262 The apostle of reform, Wright earned the hatred of white segregationists throughout the country with his decision in Bush v. Orleans Parish School Board. 230 F. Supp. 353 [19561. The case originated in 1952, when Oliver Bush sued, claiming the black schools were physically and operatively unequal to the white schools. Originally, the case had come before Judge Wright, who delayed any decision until the Supreme Court ruled in Brown. In 1956, the case was reopened by the school board when it asked Wright to dismiss Bush's complaint. Southern school districts were utilizing an interposition form of resistance to desegregation. Succinctly, interposition is defined as an action in which a state places itself between its citizens and the national government, as a protector, from federal legislation or action that may be harmful to them. It is found in writings all the way back to Thomas Jefferson and James Madison, in the Kentucky and Virginia Resolutions of 1799; and was used in conjunction with the concept of nullification by Southern states 260Jbid. There were other Court rulings addressing remedial action in desegregation cases prior to 1954. 261Bass, Unlikely Heroes, p. 115. 2 62See Alexander v. Holmes County Board of Eduation, 396 U.S. 19, 90S. Ct 29 [1969]. 80

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prior to and during the Civil War, to thwart federalism imposed upon them by the national government. John C. Calhoun, the staunch states rightist and anti Federalism advocate, endorsed both doctrines in the nineteenth century. Federal courts have repeatedly rejected the doctrines of nullification and interposition.263 Wright called for the use of a three-judge panel to decide the case. Three judge panels were used when a substantial constitutional case or controversy arose within the Fifth Circuit and could not be decided on its face. The three district judges chosen were Wright, Borah and Christenberry. On February 15, 1956, the unanimous court struck down the provisions as violative of Brown. It ruled further that the laws at issue posed no serious question and any other effort to stall desegregation would not require a rehearing by a three-judge panel but could be dealt with by Judge Wright; it remanded the case to his court. Louisiana's argument was based upon a reasoning that separation of the races was normal, and the state was acting to protect the white race from the black race; therefore, the state was exercising its proper function as guardian of the public safety, and therein existed the rational basis for racially segregative laws. Wright acted immediately, dismissing the state's argument that it could maintain segregated schools while acting within its police powers. He then issued an order that the school board could no longer require segregated schools. Wright was the first judge in the Fifth Circuit to make such a ruling.264 He also struck down the pupil placement law, which appeared on its face racially neutral but in application was found unconstitutional because sustained the white-only school system. The school board appealed Wright's ruling but the Circuit affirmed it unanimously, and the Supreme Court refused to grant certiorari. Two years later, the controversy was refueled when the school board tried to argue that a newly created Special School Classification Committee had supplanted its authority to act, and that therefore, it could not comply with Judge Wright's order to implement desegregation plans "with all deliberate speed." Wright issued a dismissal of the claim, and was again upheld unanimously by the Circuit Court panel. In 1960, the school board was faced with a court-imposed deadline dictated by Wright in 1956. The reaction of white parents in New Orleans was to vote eighty percent in favor of closing the whole school system. The 263Schrnidt. p. 74. 264Bass, p. 119. 81

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deadline for action was May 16, and the school board refused to submit a plan. Judge Wright then ordered the school district to begin desegregating in September. Wright was the first judge in the Circuit to actually impose a date on which desegregation would begin. 265 In response, the Louisiana legislature gave the governor authority to act for any school board that was under a court order to desegregate. Another three-judge panel, consisting of Wright, Judge Rives and Christenberry, then heard argument The panel decided unanimously, with Wright delivering the opinion, that the Louisiana law giving authority to the governor to operate, or not operate, school systems was unconstitutional on its face. It also struck down seven companion statutes as unconstitutional. It also held state Attorney General Jack Gremillion in contempt for his eruption when Judge Rives allowed the introduction of affidavits in place of direct testimony from the parents who were suing to keep the schools open. Gremillion threw a tantrum, and spat on two black women as he left the courtroom yelling about a kangaroo court. Mter receiving a suspended sentence, Gremillion broke down and declared that the state had exhausted its legal strategy. Governor Davis then traversed Louisiana dodging federal marshals who attempted to serve him with the court order. Days before the school year was to begin, the school board asked for and received a stay from Judge Wright until November 14, because the turmoil had been so disruptive that additional time was needed to prepare properly for the opening. During November 4-9, the Louisiana legislature enacted twenty-nine racially discriminatory statutes, including interpositional resolutions which authorized the arrest of any federal marshal or judge who attempted to enforce the ruling in Brown.266 On November 10, Judge Wright issued a temporary restraining order forbidding enforcement of those twenty-nine statutes. The order was directed at the governor, his attorney general, the state police and national guard, and the state superintendent of education. The state superintendent then issued an order declaring November 14 a school holiday for New Orleans. Judge Wright responded with another temporary restraining order and ordered the superintendent bound over for a contempt hearing. When the state legislature passed a resolution declaring November 14 a school holiday for New Orleans, Wright issued a restraining order against the entire Louisiana legislature. On the 14th, when desegregation began, the legislature 26SJbid., p. 127. 266Ibid., p. 128. 82

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removed the entire New Orleans school board, and Wright responded with another temporary restraining order against its enforcement Tempers began to flare as emotions ran high against the court orders. On November 30, the panel struck down the interposition law, with Wright authoring an opinion that declared the act a veritable threat to national security. He extolled the virtue of federalism and argued that, if allowed to stand, the law would threaten the underpinnings of constitutional authority. The opinion extended the restraining order against district attorneys, sheriffs, mayors and chiefs of police, and any other persons acting in concert, prohibiting them from interfering with the operation of the New Orleans schools. Wright, though he authored the opinion, approached Rives and Christenberry with the idea of issuing it per curiam (a collective opinion of the court). His reasoning was that it would give the opinion more authority and disperse criticism to all three judges. Both judges heartily agreed to the wisdom of the idea. Once again, the Supreme Court affnmed the ruling of the three-judge panel. The Louisiana legislature would attempt four more times to circumvent the desegregation order, and each time would fail to pass constitutional muster. The situation was now reaching a crisis stage. The legislature continued to issue laws that were unconstitutional, and the state school superintendent had instructed the school board that it did not have to follow the court order to desegregate. The probability of issuing contempt citations against a plethora of state officials was high. Wright asked for help from the Department of Justice. He wanted to know if it would enforce his orders. Previously, Wright had asked the Eisenhower Administration for federal marshals to enforce the desegregation orders and was denied, and the schools were closed. 267 As Attorney General, RFK had placed Burke Marshall in command of the Civil Rights Division. Marshall and Kennedy both understood the political reality of confrontation with state officials. They were dealing with a federal question of supremacy of national law over state law, and they were dealing with a political question that might tear the Democratic Party into warring factions. Discussing the ordeal, Burke Marshall states: ... basically, it was whether or not the Department of Justice was going to accept full responsibility for the enforcement of school orders, 267Wofford, p. 134. 83

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or whether it wasn't. The fact is, it never had before then. Someone had to back down. Either they were going to back down or they were going to end up in contempt and with having to jail important public officials. "268 The Attorney General and his assistant knew what they had to do. They did not call for a cabinet meeting, nor did they initiate a policy study. Marshall and Kennedy discussed the pertinent issues and informed Judge Wright that the Department of Justice would enforce the court orders. RFK said, "We'll have to do whatever is necessary."269 The legacy of those words was emblazoned upon white Southerners. By September, 1961, the New Orleans public school district was operating under a desegregation plan. Southerners blamed J. Skelly Wright for the whole ordeal. Throughout the South, southern customs were being shredded. Wright and Johnson were considered the main culprits. Politicians based their support on the bigoted hospitality that was part of the Old South. They knew the ways of segregation, and preferred it. They enjoyed the status quo, and so did their constituency. The majority of Southerners enjoyed their station in life, so long as they were white, and the graciousness of southern life was based, in part, on the continuance of segregation. Following the New Orleans case, came the Freedom Rides; then the affairs at Binningham, Tuscaloosa, and Ole Miss. People remembered the decisions of Judge J. Skelly Wright and Frank Johnson, Jr. with actual malice. Senator Eastland did not take kindly to the decision in New Orleans. He knew full well that the barriers against desegregation would fall sequentially, and the first one was Brown v. Board of Education [19541. In a speech given to a Mississippi audience on August 12, 1955, Senator Eastland extolled the virtues of segregation and Southern life. Referring to the Brown decision, he told that the Supreme Court had destroyed the Constitution by disregarding the law. He said to his audience, "You are not required to obey any court which passes out such a ruling. In fact, you are obligated to defy it. "270 The decision regarding desegregation of the New Orleans school district was the second major barrier to fall. With Robert Kennedy's endorsement of Judge Wright's actions, Eastland knew the time for change was at hand. In a phone conversation with U.S. Attorney 268Guthrnan, Robert Kennedy: In His Own Words, p. 81. 2691bid., p. 82. 270Bass, p. 17. 84

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M. Hepburn Many, Eastland referred to Judge Wright as that "no good son of a bitch."271 Many told Eastland he would not stand for such rhetoric, and was promptly given another dose of negative diatribe. J. Skelly Wright had broken the resolve of Louisiana's massive resistance to desegregation. The battle had taken five consecutive years of legal struggle and was laced with political intrigue. The states' rights position had been defeated; federalism had been upheld. The customs of the Old South were falling to the enlightened reasonings of judicial craftsmen, especially J. Skelly Wright and Frank Johnson. When Congress passed the Omnibus Judgeship Bill, two vacancies opened up on the Fifth Circuit Court of Appeals. It was known that J. Skelly Wright was being considered for one of those positions. When Judiciary Chairman Eastland heard the news, he erupted. Eastland had kept the bill in committee until JFK became president Now he was incensed at the thought of Wright serving. on the Court of Appeals. He contacted RFK and made sure his displeasure was noted. RFK then contacted Wright and told him, "I've been holding up two nominations to the Fifth Circuit, hoping I could put you in one of them. I've been holding them up for six months. I checked with the Senators, and it's impossible. "272 Even though Wright was a logical appointee to the Fifth Circuit, the animosity of southern Senators was too strong. Senator Long (D-La.) came out against him, telling Kennedy that Long could not win reelection if Wright were to go to the Fifth Circuit. In appreciation of his work on civil rights, Wright gained appointment to the District of Columbia Circuit Court of Appeals, in 1962.273 RFK had proven his skill in handling judicial appointments, by clearing Wright out of Eastland's home Circuit, and still providing him with a promotion based upon merit. Before he left the district court, Wright issued one last order to accelerate the "all deliberate speed" the New Orleans school district was using to implement desegregation. The man who replaced him, Judge Ellis, promptly stayed the order and granted the school board a new trial with the intention of overruling Wright.274 The Ellis order was quickly modified by the Circuit Court panel of Judges Wisdom, Brown and Rives. Wright returned to the Fifth Circuit, presiding as a visiting 271Ibid., p. 133. 272Ibid., p. 156. 273Louis F. Oberdorfer, "In Memoriam: Judge J. Skelly Wright" George Washington Law Review, Volume 57, Number 5, pp. 1037-1047. 274Jbid. 85

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judge, sitting with Judge Rives, and Griffin Bell. Together, they issued a unanimous opinion solidifying Sixth Amendment privileges for blacks trying to propel a voting rights case out of state court and into federal district court. According to Jack Bass, "the case reflected Wright's entire judicial career, throughout which he reacted to issues of constitutional protection of fundamental civil rights with the same controlled passion as The Four."275 The power of the animosity Southern Democrats had for Wright, Johnson, and The Four (Fifth Circuit Court Judges Elbert P. Tuttle, John Minor Wisdom, John R. Brown and Richard Taylor Rives) was acknowledged by Robert Kennedy. The ability of Eastland to prevent Wright's nomination to the Fifth Circuit is ample proof that Wright would have faced the roughest of confirmation hearings for a seat on the Supreme Court. RFK would not have chanced tasting a stinging defeat similar to that Nixon felt with his two failed nominations in 1969. Justice Hugo Black resigned from the Supreme Court on September 17, 1971. Black hailed from the state of Alabama. So did Frank Johnson. Had Johnson not been associated with Wright, or the Four, he might have received the appointment to fill the vacancy left by Black. When Johnson was being considered for appointtnent to the Supreme Court, in 1969, by Nixon, southern Republicans promptly vetoed the idea because of his voting record on civil rights.276 Both Johnson and Wright were qualified, possessed the necessary merit and experience, and met the screening methodology, but lacked the ability to receive smooth confirmation. The greatest liability against both men was that the political price for their confmnation was too great. The Southern Democrats had a great deal of power in the Senate. In 1968, Senator Harry F. Byrd (DVirginia) chaired the Finance Committee; Senator Richard Russell (D-Georgia) chaired the Armed Services Committee; Senator John Stennis (D-Mississippi) had seniority dating back to 1947; Senator Russell Long (D-Louisiana) had served since 1948 and his colleague Senator Allen Ellender (D Louisiana) since 1937. Long was heavily against any promotion of Wright into the Fifth Circuit, though not as vociferous as Eastland, and primarily for political reasons. Despite Long's disapproval of placing Wright on the Fifth Circuit, senatorial courtesy was not a major consideration for nomination. However, there 275Ibid., p. 158. 276Bass, p. 318. 86

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was respect for the political power individual senators could wield within the chamber. When consideration is given to the overall impact the Southern bloc of Democratic Senators had on legislation, and not just judicial confirmations, the perspective changes in terms of judicial nominations. In 1968, the Senate was controlled by Democrats, 57-43. Consideration of the political liability of any judicial appointment to the Supreme Court had to be weighed by the appointing President, if it offended key Senators. J. Skelly Wright was appointed to the Circuit Court of Appeals in 1962, and eventually became its Chief Judge. He died on August 6, 1988. Griffin Bell Griffin Boyette Bell did pass the muster of the Southern senators, gaining one of the seats created by the Omnibus bill for the Fifth Circuit Court of Appeals. He also passed every criterion of the screening process for Supreme Court nomination. He was a judicial moderate, and therefore did not overly excite antagonism of Southern or Sun Belt conservatives. He was from Georgia; so he would complement the geographical heritage of Stennis, Long, Ellender, Russell and Eastland. He was fifty-three years old, and had shown the proper political patronage throughout his political career. Bell had served as Governor Vandiver's chief of staff, and as campaign manager for JFK in Georgia. He also served as liaison between RFK and the governor in gaining the release of Martin Luther King, during the 1960 presidential campaign. He earned a solid reputation within the Kennedy machine by smoothing out what could have been a major catastrophe. Bell had a solid record on civil rights enforcement as the governor's chief of staff. He helped develop the desegregation plans for the Georgia public schools and orchestrated the admission of the first black student to the University of Georgia. When Kennedy gave his first speech as Attorney General it was to an audience at the University, in Athens, Georgia. He came out in defense of the Supreme Court decision on desegregation and told the students his department would enforce the law. It was Griffm Bell who made the arrangements and accompanied him throughout.277 Bell's effort in organizing the speech is significant because it was 277Ibid., p. 161 87

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RFK's first public speech as a cabinet member, and the first time an Attorney General addressed a Southern forum on the issue of desegregation.278 Bell's service and support in that instance was never forgotten by RFK. Bell served in World War II as an Army officer supervising transportation. He then attended Mercer Law School, in Georgia, and entered into private practice in 1948. Robert Kennedy thought well of Griffin Bell, evaluating him as a judicial moderate who would enforce civil rights.279 When speaking in retrospect on his Southern judicial appointees, Kennedy lamented their poor records regarding civil rights enforcement, especially Judges William Cox, E. Gordon West and J. Robert Elliot. In regards to the appointment of Bell to the Fifth Circuit Court of Appeals both Kennedy and Burke Marshall gave positive reviews. In a 1964 interview, Marshall commented on Bell: "I think he's a good judge. The civil rights people don't think he's a good judge, but I think he's a good judge. And I think he's fair on civil rights."280 Kennedy followed up: "He's an awful good fellow, Griffm Bell. A very decent fellow."281 The major criticism of Bell was that he was not the judicial craftsman on civil rights that Wright and Johnson were. Burke Marshall defended Bell by stating that his position on the Court of Appeals was one of review, and the district courts were there for judicial craftsmanship. H the district courts sent up a decision that was repugnant to the law, or the Constitution, then Bell would articulate and overrule. This defense by Marshall illustrates the complexity that surrounds Bell. He did not believe that busing was necessarily the proper for of public schools.282 Yet he was forceful in respecting the edicts of Brown. In a desegregation case involving a rural district in Georgia, Bell imposed his own plan on the school district after officials failed to act. Bell's concept was later used as the model for a plan Judge Garrity imposed upon the Boston school district. Bell was an administrator, a political pragmatist, spirited and innovative.283 He showed these skills in managing the mid-year desegregation plan in thirty counties in Mississippi. The effort required a consolidation of ideas from school board attorneys, civil rights attorneys, school 278Ross, pp. 56-57. 279Bass, p. 162. 28Guthman, p. 107. 281Jbid., p. 109. 282Bass, p. 163. 283Ibid. 88

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board personnel, superintendents, parents, teachers; and the application of law. His achievement placated all involved.284 Regarding the criteria of ability to gain Senate confmnation, Bell easily outscored Wright and Johnson. Passing the Senate Judiciary Committee's scrutiny for his Circuit Court appointment is evidence that Eastland and the Southern bloc harbored no demonstrable antagonism towards him. When Bell was appointed Attorney General by President Carter, the new Judiciary Committee Chairman, Senator Edward Kennedy (D-Ma.), approved him, with high marks for loyalty to RFK. This endorsement came in the face of hostility from liberal groups including the American Civil Liberties Union (ACLU) and black civil rights groups. Senator Ted Kennedy's strong endorsement illustrates that Bell was highly regarded by Robert Kennedy. Bell's ties to the Kennedy family went as far back as the 1960 campaign. Loyalty is clearly demonstrated, and his ability to innovate was shown in his handling of the King affair, which easily could have blown the whole election for JFK, had it been bungled The major factors against the appointment of Bell would be the criticism of his conservative stance on civil rights issues, and his lack of support for busing as a tool for achieving desegregated schools. Bell assumed a position that school boards could not discriminate, but that interpretation differed from actually forcing integration. What offset those factors was the loyalty he showed to JFK and the appraisal of both Burke Marshall and RFK; and finally, the endorsement he would later receive from the man who replaced James 0. Eastland as chairman of the Senate Judiciary Committee, Edward Kennedy. Bell would have been able to achieve Senatorial confirmation to the Supreme Court of the United States. His geographical heritage would have made him a most attractive choice to replace Justice Hugo Black in 1971. Arthur Goldberg Arthur Goldberg was a sitting Supreme Court Justice in 1965, when he accepted appointment as Ambassador to the United Nations (UN). There are rumors he made a deal with LBJ that once his mission at the UN was fmished he would receive reappointment to the bench. LBJ, a shrewd tactician, claimed never 284Ibid., p. 164. 89

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to have made such a deal. When Adlai Stevenson died in 1965, Johnson sought Goldberg as his replacement. Goldberg did not want to give up his seat on the bench, but was finally persuaded to because LBJ had clothed the UN offer with an ability to make policy, and work as an international "peacemaker."285 Johnson immediately appointed long-time friend and "crony" Abe Fortas to succeed Goldberg on the Court. When Fortas was nominated to replace Earl Warren as Chief Justice, and met with filibuster, he asked that his name be withdrawn. LBJ did so "with a heavy heart. "286 It was then discussed whether or not to send Goldberg up as the nominee for Chief Justice. Mter heavy debate, during which other possible nominees were discussed, it was decided that Chairman Eastland would have as much to do with Goldberg as he did with Fortas, and that southern Republicans would again engage in filibuster, led by Thurmond and Senator Griffm (R-Michigan). Consequently, a second Goldberg nomination never made it out of the White House. 287 Goldberg served the Kennedy White House as Secretary of Labor. He displayed the necessary talent and political acumen to work with bureaucrats, legislators and constituents. His loyalty to the administration was acknowledged by RFK, and he was endeared to JFK.. 288 Goldberg's service and political loyalty were rewarded with appointment to the Supreme Court in 1962. He was selected over such notables as William Hastie, Thurgood Marshall, Paul A. Freund and Roger J. Traynor. When the Whittaker vacancy occurred in 1962, both Byron White and Goldberg were considered. It was decided that White would get the first nomination, because he was less controversial, and would gain confirmation quickly, and Goldberg would get the second nomination, when a vacancy came up.289 When Justice Frankfurter retired, in September, 1962, Goldberg sought the nomination,290 and served with zeal. Part of the package was his religion, as Goldberg would carry on the "Jewish seat" of Brandeis-Cardozo-Frankfurter; Goldberg also met the scrutiny of Chief Justice Earl Warren.291 When he left the 285McFeeley, pp. 108-109. 286Ibid., p. 117. 287Jbid., pp. 118-120. 288Heruy J. Abraham, Justices And Presidents: A Political Histozy of Appointments to tbe Supreme Court (New York: Oxford University Press, 1985) pp. 277-278. 289Schlesinger, pp. 404-410. 2 90Jbid. 291Pollack, p. 213. 90

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Court, it was with a great deal of regret. In his public announcement, Goldberg's resignation statement rings with clarity: "I shall not, Mr. President, conceal the pain with which I leave the Court after three years of service. It has been the richest and most satisfying period of my career. "292 In his formal letter of resignation to the president, he stated: "You are already aware of the reluctance with which I leave the Court I do so only at your insistence, and in the belief that no American citizen could in good conscience refuse the new duty you have requested me to undertake."293 There is evidence that some type of consideration was discussed regarding Goldberg's reappointment In May, 1969, Henry Abraham, Professor of Judicial Politics at the University of Virginia, asked Goldberg why he had stepped down from the Court, and whether LBJ had pressured him. Goldberg responded that he felt he could have negotiated an end to the Vietnam War, and "he was also heavily influenced by a clearly implied understanding of an ultimate return to the Court. n294 If a deal had been made for reappointment, another consideration must be discussed. Goldberg infuriated LBJ when he resigned his position at the U.N. over White House policy concerning Vietnam.295 If Goldberg's attempt to end American involvement in Vietnam through his United Nation position met stiff White House resistance, or subterfuge, and resignation was his response, Johnson would not have forgiven such a break in loyalty towards his foreign policy. Since personal loyalty was significant in the Johnson screening process, Goldberg most certainly destroyed any opportunity for reappointment by resigning the U.N. post over a disagreement concerning U.S. foreign policy. In three short years on the Supreme Court, Goldberg distinguished himself as a judicial craftsman, pioneering the argwnent that the death penalty was being applied with racial bias, and therefore, was an unconstitutional application of "cruel and unusual punishment" and violative of the due process clause of the Fourteenth Amendment.296 .He wrote the opinion in Escobedo v. lllinois. 378 U.S. 478 [19641. which extended Gicleon v. Wainwright 372 U.S. 335 U963l. and laid a 292McFeeley, p. 108. 293Jbid. 294Abraham, pp. 279-280. 29SPollack, p. 277. 296see Rudolph v. Alabama, 375 U.S. 889 [1963] 91

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i I I solid foundation for Miranda v. Arizona. 384 U.S. 436 09661. which has so troubled "strict constructionists" as giving criminals too many rights, sJch as due process and equal protection of the law. Goldberg also voted in concurrence with I the majority in Griswold v. Connecticut f1965l. which interpreted the Amendment to show a belief of the Framers that: .. .fundamental rights exist that are not expressly enumerated in the first amendments and the list of rights included there [should] not be deemed exhaustive. The Ninth Amendment simply shows the intent of the Constitution's' authors that other fundamental personal rights should not be denied such protection or diWaraged in any other way simply because they are not specifically listed in the first eight constitutional amendments. I do not see how this broadens the authority of the Court; rather it serves to support what this Court has been doing in protecting fundamental rights ..... 297 What is so intriguing about Arthur Goldberg is that he had already passk the I muster of the judicial screening process, which was administered by Robert Kennedy; he had received Senate confirmation to the Supreme Court; he I enjoyed high marks from RFK for loyalty to the administration. His ju(jiicial prowess was clearly exhibited by his decisions on the Court, but he left! a legacy that inflamed "strict constructionists." Reappointment and were not I definite, even though there is little to suggest he could not have passed senatorial I confirmation a second time. He would have had a rough ride from the bloc, but that was not a consummate screening factor, because he had already survived Eastland's scrutiny on his first trip to the bench. In fact, only I strom Thurmond voted against him.298 Goldberg was the fifth vote of the bloc, and was replaced by another Jewish liberal, and scholar, Abe Fortas. Jpstice Fortas was forced to resign his seat in 1969, Goldberg would have been a logical I choice to succeed him if his status with RFK had remained static. Accdrding to I I Joseph Dolan, who served both John and Robert Kennedy as personal adviser, and I was Assistant Deputy Attorney General in charge of screening judicial ; I appointments, Goldberg lost a great deal of respect when he allowed LBJ to talk him into resigning from the Court. That incident happened on a return flight from I Adlai Stevenson's funeral when the President made an impassioned apP,eal to I I 29 7See Goldberg's concurring opinion in Griswold v. Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]. I 29 8 Abraham, p. 278. I 92

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Goldberg to take the UN position. 299 His resignation was a major disappointment to RFK and was enough to make him fail a second screening from the new president300 Goldberg's failed attempt in the 1970 New York gubernatorial campaign also would have had a negative impact on RFK. The campaign performance given by Goldberg created a dissonant chord within the Kennedy brain trust. 301 Additional factors of major importance would be (1) the issue of his judicial opinions, especially Escobedo; and (2) how his resignation and subsequent reapplication to the Court would be played in the press. The primary issue that blocked a Goldberg reappointment was his fall from grace within the RFK loop; not his ability to regain Senatorial confmnation. Abraham Ribicoff Another prospective appointment was Abraham Ribicoff. Initially, he was to be appointed Attorney General but felt it would be awkward for him to enforce desegregation orders in the South, and later try and gain Senate confmnation for his true desire--to become a Supreme Court Justice.302 A former governor, he was given the position of Secretary of Health, Education and Welfare, and later became a United States Senator from Connecticut. Ribicoffwent through the screening process during both vacancies in 1962. Along with Paul Freund, and Goldberg, he represented an excellent choice to flll the "Jewish seat." Initially, all three men met with Chief Justice Warren's approval.303 Ribicoffwas a Kennedy supporter during the 1960 Convention, and showed his loyalty throughout the campaign and later as a cabinet member.304 He sincerely desired a seat on the Supreme Court, but was found wanting for merit when scrutinized opposite Arthur Goldberg.305 Ribicoffnever gained acceptance into JFK's inner circle.306 Having failed the screening process for the Whittaker and Frankfurter vacancies, and since he already 299McFeeley, p. 108. 300Jnterview with Joseph Dolan, Deputy Assistant Attorney General, Department of Justice, 1961-64, and Administrative Assistant to Robert F. Kennedy, 1964-68 (Denver, CO: June 18, 1990). 301Interview with John Seignethaler, Editor of the Nashville Tennessean (Nashville, 1N: June 26, 1990). 302Schlesinger, p. 244. 303Pollack, p. 213. 304Roberts, p. 53. 30SAbraham, pp. 277-278. 306Fairlie, p. 168. 93

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occupied a prestigious position in national politics as a Senator, it is unlikely Ribicoff would have been nominated by RFK. The additional fact that he turned down the post of Attorney General would be partial cause to suspect his personal loyalty. Ribicoff was a stalwart in Democratic Party politics. He had accumulated expertise serving as governor, cabinet member, and senator. He was acknowledged as a leader of the liberal wing of the Party. Had he been from Texas, instead of Connecticut, he would have been considered as Vice Presidential material to balance the ticket. He presents an interesting dilemma. His position within the Party was solid, but he did not enjoy a personal relationship with RFK that would boost him above the host of contenders for a nomination. David Bazelon Another person qualified to fill the "Jewish seat" was David L. Bazelon. Serving as Chief Judge for the District of Columbia Court of Appeals, he was the mirror-opposite of Nixon's first appointment, Chief Justice Warren Burger. Bazelon not only occupied the lead seat on his circuit, showing judicial craftsmanship and scholarly activity; he was a particularly astute administrator of his court. Bob Woodward and Scott Armstrong describe Burger's goal of modeling the Supreme Court after Bazelon's paradigm of the D.C. Circuit Court.307 Burger lusted over the way Bazelon would use his power as court manager to assign additional law clerks, office space and materials, and offer the entire support apparatus to judges who shared his judicial philosophy. 308 Conversely, he would withhold favors to the point of making life on the bench miserable to those that opposed his philosophy. Burger's failure to mimic the Bazelon style, both as administrator and leader of the Court is described in detail by Professor David O'Brien in his piece "The Supreme Court: From Warren to Burger to Rehng,uist" Serving as a judicial fellow and research associate to Chief Justice Burger, O'Brien gained valuable insight into his style and abilities. He describes Burger's lack of passion or intellectual prowess to lead the Supreme Court, and lack of W arrenesque charisma. 309 He felt that Burger was more a caretaker of the 307Woodward, p. 22. 308Jbid. 3090'Brien, The Supreme Court: From Warren to Burger to Rehnguist p. 618. 94

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estate that Warren created, and failed to produce the revolution against judicial activism that Nixon had campaigned for.310 In reality, the judicial appointments of Richard Nixon had great impact in retarding the stare decisis developed during the last eight years of the Warren era; but O'Brien's thesis that Burger lacked the intellectual and charismatic properties to produce development of new stare decisis is insightful and accurate. There is little argument that O'Brien is a preeminent constitutional scholar, and the closeness with which he observed the Court's behavior under Burger makes his conclusions authoritative. Burger simply did not have the combined abilities to lead his court the way David Bazelon did. The idea presented is that Bazelon would have made a logical choice to replace Earl Warren if RFK had been elected president, just as Burger was Nixon's choice to become the new Chief Justice. They both served on the same D.C. Circuit Court, where it became obvious that Bazelon possessed a much higher degree of leadership ability and exhibited a great deal more expertise within the realm of jurisprudential interpretation than his counterpart. Bazelon satisfied the methodology of the screening process. He fulfilled the need of a Jewish replacement for Abe Fortas. He demonstrated clear abilities in legal scholarship. His loyalty to the philosophy of judicial interpretation that justice, not mere legality, should be applied to the facts of each case coincided with the heartfelt beliefs of Robert Kennedy. In 1969, David Bazelon was sixty years old. He had received his law degree from Northwestern University School of Law in 1931, possessed honorary Doctor of Law degrees from Georgetown, Syracuse, Boston University, the University of Southern California and Colby College. He established himself as a peer among the nation's leading microbiologists, and sat on the board of trustees for the Salk Institute for Biological Studies. Bazelon was considered one of the elite pioneers in developing disciplinary guidelines in the field of genetic engineering. He had been a lecturer at Johns Hopkins University and the University of Pennsylvania, in the fields of law and psychiatry. He was the sole non-psychiatrist selected to the first United States Mission on Mental Health to the Soviet Union, in.1967. Bazelon engaged in private practice until his appointment as Assistant Attorney General for the Lands Division in the Department of Justice, in 1946. In 310Jbid., pp. 618-619. 95

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1949, President Truman made him the youngest appointment ever to the United States Circuit Court of Appeals for the District of Columbia. In 1962, he became the Circuit's Chief Judge, and administered the circuit with such a genius, that it became known as "Bazelon's Court." His Court enjoyed a special status as the court of appeals in matters of local law for the District of Columbia. Hence, it received a higher percentage of criminal cases than other Circuits. As a result, Bazelon wrote more opinions on the insanity defense than all other Circuit Courts combined. 311 This area of legal scholarship, both from the bench and in academe, is significant because RFK was interested in insuring and protecting the rights of the mentally challenged. Bazelon's preeminence in the area of judicial interpretation on the rights of mentally challenged would have been a major factor in consideration for appointment to the bench. That area of jurisprudence was becoming extraordinarily ripe for the Supreme Court, and especially so, because the Bazelon Court was forcing its judicial interpretation. RFK's interest in the issue would have made it a significant factor in the screening process because a Justice who was accepted in both the medical and legal fields on the issue would have been able to lead the Supreme Court into the breach. Bazelon's acceptance by colleagues would have made a transition from Circuit Court leadership role, to a Supreme Court leadership role, much easier. Bazelon's status as a judicial craftsman was exemplified throughout his legal career with an extraordinary number of distinguished opinions. The only area where Bazelon appeared without majesty was on the criterion of personal loyalty to the president. He balanced out that deficiency with an exhibition of loyalty to a certain philosophy of judicial interpretation. RFK and Bazelon both displayed true belief in the pursuit of justice as a goal of law enforcement and judicial interpretation. That common thread of philosophy can be correlated with the criterion of the screening process as compensatory for the lack of professional interaction. Griffin Bell, Frank Johnson, J. Skelly Wright, Abraham Ribicoff and Arthur Goldberg had worked with RFK in a professional setting. David Bazelon did not have that interaction, but the indicia gained from his written opinions provide adequate compensation. He displayed professional wisdom on the Circuit Court that distinguished him among his peers; and the fact that Burger tried to 311According to Associate Supreme Court Justice William Brennan, in the forward to Ouestjonim: AutborifY (New York: Alfred Knopf, 1988) p. ix. 96

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emulate his style as court leader, is a compliment rarely shown in judicial circles, and provides additional testimony to Bazelon's legal and administrative abilities. Bazelon would have been a probable appointment to the Supreme Court, made with deference to his professional skill rather than acknowledgement of personal loyalty. In that sense, he presents a controversial projection. His writings and teachings within two scholarly communities, medicine and law, are clear indications of his multiple talents, and show an ability to adapt to different learning environments. He satisfied the need to continue the legacy of the "Jewish seat" Extrapolation of his judicial philosophy would have been as precise as is possible based upon examination of his legal opinions issued as Circuit Court Judge. The same type of measure was taken of Goldberg based upon his service as Secretary of Labor and cabinet member, prior to his appointment to the Supreme Court Beyond that realm, a reappointment of Goldberg would have met with senatorial scrutiny because he was a "known." An initial appointment of Bazelon would have met with limited derogatory scrutiny from the Southern Bloc. The Southerners were fresh from beating down the Fortas nomination for Chief Justice; therefore, it is unlikely they could have fueled such a rabid resentment against Bazelon. David L. Bazelon would have been a likely choice to fill the vacancy left by the resignation of Justice Fortas, in 1969. There are several persons who merit mention as possible nominees, but would have not passed the screening process for an RFK nomination, in 1969. It is projected they would have received nomination to a lower federal court seat. Three of the most notable are Paul Freund, Robert Morgenthau, and Louis Oberdorfer. Paul Freund Paul Freund, a law professor at Harvard, was a possible nominee. Considered outstanding by colleagues in academe and by professionals within the legal field, he clearly had their combined endorseinent.312 However, he failed the screening process of peer acceptance at the Supreme Court level when weighed against Goldberg, in 1962. Ultimately, both Justice Douglas and Chief Justice 312Wofford, p. 75. 97

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Warren came out against his nomination.313 Freund also represented the Harvard elite. There was some consternation that he would face bitter opposition because of the growing sentiment that the Kennedy Administration was placing too many Ivy Leaguers into key government positions. In addition, Freund was keener on teaching than government service. When asked by the JFK administration to serve as U.S. Solicitor General, he responded with reluctance, and then turned the offer down. He was approached again, and informed that if he accepted the post, he would be in line for an appointment to the Supreme Court. He resisted, informing Harris Wofford that "I hope you will understand that they also serve who only stay and teach. n314 Given such a proposal that included a future appointment to the Supreme Court, Freund's reply that he wished to remain at Harvard is sufficient to warrant the conclusion he would not have passed final screening for a nomination by RFK. Had Ribicoff been given the same proposal, rather than resigning his cabinet post in 1962, his answer would have been affmnative. Louis Oberdorfer Louis Oberdorfer was a native Alabamian, clerked for Justice Hugo Black, and was a graduate of Yale School of Law. He served under Kennedy at the Department of Justice in the Tax Division. He was utilized in the enforcement of desegregation orders, and following the passage of the 1964 Civil Rights Act, was tasked to supervise compliance with it.315 Oberdorfer was highly regarded, and possessed the ingredients to meet the criteria of the screening process. He had clerked for Justice Black, while Byron White was clerking for Vinson, and also attended law school with him. His experience and expertise were utilized by RFK, as evidenced by his constant interaction with the civil rights movement, even though he was Assistant Attorney General in the Tax Division. 316 While he was a strong candidate for appointment to the Circuit Court of Appeals, he would have been unlikely to make the cut for initial appointment to the Supreme Court. By 1968, RFK would have been looking to two individuals of the highest caliber, whom he had interacted with at a governmental level, and also enjoyed the esteem 313Schlesinger, p. 406. 314Wofford, p. 75. 315Navasky, pp. 182-183. 316Schlesinger, p. 259. 98

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of colleagues in the field Men that were respected among Senators, and had shown absolute loyalty, both in philosophy, and professional interaction, to RFK. Oberdorfer certainly met the criteria for personal loyalty, political philosophy, and professional acumen. Such a mix translates into a Circuit Court of Appeals, or lower federal court nomination. From that vantage point, Oberdorfer could prove his judicial worth, and would have been a prime candidate for one of the seats that opened up in 1971.317 Robert Morgenthau RFK displayed a keen interest in Robert M. Morgenthau.318 He appointed Morgenthau as U.S. Attorney for the Southern District of New York, in 1961. The following year, Kennedy influenced the New York Democratic Party to make Morgenthau its gubernatorial nominee over Frank O'Connor. In an animated campaign, Morgenthau failed to unseat the incumbent, Nelson A. Rockefeller. He then resumed his duties as federal prosecutor with zeal. Filling that role well, he earned accolades, and was heavily involved with the investigation of organized crime. There were two areas. that piqued RFK's interest: (1) Jimmy Hoffa; and, (2) organized crime. Since Hoffa was synonymous with the racketeering interests of organized labor, the two areas became significantly intertwined. One was an off shoot of the other. If a person could prosecute successfully, or develop critical information on either of those two categories, he enjoyed a special status with RFK. Morgenthau was heavily involved in the investigation of organized crime. In addition, he was involved in the investigation of another of Kennedy's enemies, Roy Cohn. 319 Morgenthau was also one of Kennedy's closest friends. 320 On November 22, 1963, he, along with Ethel, were at RFK's side. Early in the day, the two were engaged in a Department of Justice (DJ) meeting discussing the Giancana investigation as it related to the total effort against organized crime. The meeting broke for lunch, so Morgenthau and RFK went to Kennedy's Hickory Hill estate to 317Interviews with John Seigenthaler (Nashville, TN: June 26, 1990) and Joseph Dolan (Englewood, CO: June 20, 1990). 31BJnterview with Joseph Dolan, (Denver, CO: June 21, 1990) 319DeToledano, p. 229. p. 18. 99

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eat At two-thirty in the afternoon, the news of the assassination reached him. The trauma of that event created a bond that every American can attest to. In the broadcloth of American society, anyone who was coherent on November 22, can describe, in detail, what activity they were engaged in when news of the JFK assassination was brought to them. Robert M. Morgenthau was at the side of the slain president's brother. The coincidence of that day signifies several key aspects of the development of RFK. Early in his political career, he exhibited a extreme dislike and abhorrence for Jimmy Hoffa and organized crime. There was an unofficial "Get Hoffa" unit within the DJ and RFK enlisted the Crime Division to maintain an Organized Crime Section. Robert M. Morgenthau has been labeled by Victor Navasky as "perhaps the country's leading prosecutor of the Mafioso."321 On the day of his brother's death, it was Morgenthau who was at his side. After 1963, civil rights became the key issue for RFK. His momentum for busting crime never really waned, but the exhaustive effort attached to it was relocated to the area of civil rights. The conclusion that Morgenthau was left in the wake of that shift cannot be made. What is significant is that Morgenthau would b.e slotted into a prosecutorial position with a focus on busting organized crime and racketeering. Morgenthau, though a close ally and deep personal friend of RFK, did not possess sufficient scholarly activity, nor did he possess the judicial resume to gain an endorsement for nomination. He was well thought of as a U.S. attorney, and ranked very high in the mind of Joseph Dolan.322 Most certainly, he would have been considered during the screening process for a High Court appointment. When compared to Burke Marshall, Archibald Cox, David Bazelon, Lou Oberdorfer, Ramsey Clark, and others, he is stretched too thin across the screening gradient. It is more likely that he would have been elevated to a position as Solicitor General, or Assistant Attorney General in charge of the Tax or Criminal Division; and given a certain set of circumstances, he would have been nominated for the position of Attorney General of the United States. This conclusion is supported by John Seigenthaler, who worked as closely with RFK as anyone.323 321Navasky, p. 51. 322Interview with Joseph Dolan, (Denver, CO: June 21, 1990). 323Interview with John Seigenthaler, (Nashville, TN: June 26, 1990). 100

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Ramsey Clark Ramsey Clark enjoyed special status within the JFK and LBJ administrations. He was the son of Tom Clark, who was Attorney General for four years before he became President Truman's third appointee to Supreme Court, in 1949. Prior to that, Tom Clark worked inside FOR's Department of Justice as an Assistant Attorney General, including work in the relocation of Japanese-Americans during World War IT. Ramsey gained valuable insight and experience growing up inside the hallowed hallways of Justice, and the Supreme Court, witnessing the. inner workings of American jurisprudence. He was reared in Texas and attended one of the most prestigious law schools, the University of Chicago, where he became associated with Nicholas Katzenbach. Katzen bach was later to become United States Attorney General, and. would then be succeeded by Ramsey Clark. In 1961, Clark was selected, at the age of thirty-three, to become an Assistant Attorney General in charge of the Lands Division. He was the youngest of the Justice appointees, and one of the few who came from outside the Ivy League circle. 324 Justice William 0. Douglas and Speaker of the House Sam Rayburn both pushed for his appointment as Assistant Attorney General. 325 Clark, having the experience of being in the Justice Department since the age of nine, learned how good an administrator his new boss was. RFK showed enthusiasm not only in his management style, but also in his making the whole Department rock with a new and vibrant soul. Clark stated it well: "I've known the Department of Justice an awfully long time. I used to walk the hallways as a kid ... and I'd come to sense the atmosphere and the mood of the place. It was a quiet and sleepy place until January of '61. .. Then it came alive."326 He was equally impressed with how well RFK handled the pressure of making the Department of Justice work, magnified because he was the president's brother: "He had to be better than anybody because there was so much doubt about him. .. So he just had to come at it very hard and naturally. And that's what he did. Within a year, all that doubt and resentment, all those essentially jealous notions ... were gone. I don't think there was a residue after a year. You couldn't live there and not know the place was alive."327 Clark 324David, p. 129. 325Schlesinger, p. 256. 326Stein, p. 78. 3271bid. 101

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had genuine respect for RFK, both in his skills of applied jurisprudence, and in his desire to pursue justice. RFK showed a growing respect for Clark's skills, when he utilized him to tour the South, interviewing local school superintendents, during the 1961 school desegregation crisis. He was equally secure having Clark and Burke Marshall at his side in Washington, during the Ole Miss incident, in 1962.328 An episode that succinctly describes the relationship between Ramsey Clark and Robert Kennedy occurred July 29, 1964. On that day, at one o'clock in the afternoon, President Johnson informed Kennedy that he would not be his running mate during the upcoming election. RFK expected that news, having told Edwin Guthman two days earlier that is what he presumed the meeting would be all about He also felt the meeting was being tape recorded, and merely offered a demure acceptance and a willingness to support the LBJ campaign. 329 Upon returning to his office, Kennedy quickly summoned "his key aides" Ramsey Clark, Burke Marshall, John Douglas, Harold Reis, and John Nolan, to tell them of his meeting with the President 330 Clark recalled the incident in detail, "It was an emotional moment for all of us. Next to the murder of the President himself, this was the heaviest blow to fall since the start of the Kennedy Administration. We all knew that Bobby would now leave the departtnent and that it marked the end of the most exhilarating experience we had ever known, or perhaps would ever again know. We sat there stricken, and it showed on our faces. The only guy in the room who took Johnson's decision with good humor was the victim himself. While we being swept by powerful emotions, Bobby was wisecracking."331 After a moment of baleful silence, Kennedy laughingly said, "Ah, what the hell, let's go form our own country."332 Initially a simple political appointee, geared towards appeasing both LBJ and Sam Rayburn, Ramsey Clark became a trusted and loyal member of RFK's inner circle of confidants.333 Clark was appointed Attorney General by LBJ, in 1967, and served until 1969. Since the appointment caused an obvious conflict of interest, his father stepped down from his seat on the Supreme Court, at the zenith 328Schlesinger, p. 346. 329Guthman, We Band Of Brotbers, pp.280-281 330oavid, pp. 240-241. 331Ibid. 332Quthman, p. 282. 333Ibid., p. 94. 102

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of his judicial career. Justice Clark was becoming noted as a legal craftsman who had gained expertise from his nearly twenty years on the Supreme Coun.334 The appointment of his son as Attorney General, and his own resignation, could have become important factors in any future screening process. The bond that developed between RFK and Ramsey Clark included personal reflections and interactions that gave each a precise measure of the other. RFK would have felt a need to reward Ramsey for his service when it was Kennedy's Department of Justice, and could relate to the meaning and importance of Tom Clark's decision to relinquish his seat on the Supreme Court so his son could advance. Since his own brother John had provided him with the opportunity to serve as Attorney General, against the expressed wisdom of several political sages, Kennedy would have allowed Tom Clark's resignation to become an additional factor of the screening process for nomination to the Supreme Court. The actions of sacrifice that occurred on behalf of RFK and Ramsey Clark, by their family members, created a separate bond, that has been overlooked by political scholars. It would have played a role in the screening and selection process. It also produced a double-edged sword. There were RFK loyalists who branded Clark a turncoat because he moved into the Attorney General position under LBJ. This factor would be sufficient to cause disharmony inside an RFK administration during the screening process. Clark did enjoy support from RFK insiders, and his accumulated experience within the DJ produced a solid resume. The byproduct produced from of his service as LBJ' s Attorney General was considerable and offset the professional and personal interaction he had with Kennedy. It is logical to declare that the negative byproduct was sufficient to render the positive neutral. Clark was brought into the JFK administration as an LBJ appointee, and returned to the Johnson camp as full Attorney General. This infidelity showed a breach of personal loyalty to RFK. It was sufficient, according to his detractors, to submerge him deep inside the quagmire of the screening process. 334Abraham, pp. 244-245. 103

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Herbert Jack Miller Herbert Jack Miller served the RFK Department of Justice, earning special accolades as a strict law enforcer. He was Assistant Attorney General in charge of the Criminal Division. He was one of the few Republicans appointed by RFK. When he was named to head the Criminal Division, he did not have a great deal of criminal trial experience. He was counsel to the Board of Monitors, which was set up to review the activities of the Teamsters. Since RFK had a genuine disagreement with Jimmy Hoffa, and the criminal activities of labor unions, Miller enjoyed a special respect from him. 335 His anti-Hoffa stance endeared him to RFK.336 Miller's reputation as a law enforcer earned him the accolades that he would prosecute a man "for spitting on the sidewalk if he thought that was the best he could get."337 In 1961, H. Jack Miller testified before Congress concerning wiretapping legislation. He stated: "Although a juridical proceeding is warranted in other situations, I believe it to be absolutely essential to preserve the present authority of the chief executive and the AG to authorize wiretapping in cases involving a threat to the national security The need for speed, secrecy and centralized control are too great to pennit reliance upon applications to the Federal Couns: A controversy concerning illegal wiretapping surfaced in 1966. It was discovered that the FBI had engaged in covert sUIVeillance using electronic listening devices. Tracing the initial memorandum, written in 1954, from Attorney General Brownell to J. Edgar Hoover, it was found that the FBI had utilized certain electronic eavesdropping methods without court approval. This type of surveillance was illegal, and tainted any evidence gained from that activity. A scandal ensued over whether or not RFK knew of the activity, especially since the FBI claimed the Director was given authority by the attorney general, prior to 1963, and up until 1965, to install electronic eavesdropping devices. Miller, in a May 25, 1961letter to Senator Sam Ervin, informed him that the FBI had maintained seventy-eight wiretaps since February, 1960. He also informed Ervin that sixty-seven of the taps 335David, p. 129. 336Navasky, p. 53. 337Jbid. 3381bid., p. 40.

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were "highly restricted" and that it was up to him to release that information, though the FBI felt it should remain confidential.339 Victor Navasky, writing about the whole wiretapping affair came to the following conclusions: 1-RFK did not know about the FBI's electronic surveillance activity, either in general, or specifically; 2-RFK did not really want to know about the activity; 3-The FBI did not provide "actual notice" of its activity to DJ; 4The FBI "accelerated" the clandestine bugging, utilizing the environment "of urgency" within DJ, to combat organized crime, doing so with a degree of security that it had the authority to bug. 340 Miller's testimony before Congress on the wiretapping legislation, and his letter to Ervin, were of particular embarrassment to RFK. He had made public statements and given Congressional testimony that he did not know of any illegal wiretapping during his tenure as Attorney General. Miller's letter makes it appear as though he should have known, if, in fact, he did not know. With this cloud of uncertainty hanging over RFK, and because of Miller's reputation and Congressional testimony, a nexus develops between anti-civil libertarianism and pro-Hooverism. Hoover and RFK never enjoyed each other, and the entire scandal was saturated with an acrid sense of political dirty tricks as leaks were appearing in the press on a regular basis. In an era of Escobedo and Miranda, it is unlikely Miller would have met with Douglas' approval, the Chief Justice's approval, or Senatorial approval. He would have placated law and order advocates in the Senate, but infuriated civil libertarians. Since confirmation hearings would have brought out testimony regarding Miller's knowledge, and could eventually have led to a tacit implication of RFK in the matter of wiretapping, Miller would have made an unlikely choice for a nomination to the Supreme Court. There were too many other candidates available that would not conjure up anti-RFK hysteria. It should also be noted that Hoover was still sitting as Director of the FBI, but it was acknowledged he was on his last legs. RFK would have been able to wait him out and would not have wanted to antagonize him overly with an appointment of Miller, which would surely have drawn out the whole wiretapping mess. 339Ibid., p. 88. 340Jbid., pp. 70-71. 105

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Warren Christopher Another person who merits mention was Warren Christopher. After graduating from Stanford Law School, he served as a law clerk for Justice Douglas, and later in the firm O'Melveny and Myers. He served in the Department of Justice as Deputy Attorney General, under Ramsey Clark. Christopher was heavily involved in the screening process in the Johnson Administration, and was well-known within political circles. He worked closely with Clark and enjoyed a strong endorsement from Justice Douglas. He was highly regarded as a lawyer, and would have been considered for any vacancy on the lower federal bench, but would not have been able to pass the scrutiny of the screening process for Supreme Court nomination. The high regard that Justice Douglas had for Christopher, and the friendship shared between Douglas and Robert Kennedy, were factors for consideration. His service as deputy Attorney General under Ramsey Clark, would have provided the necessary screening material. He simply did not enjoy prominent esteem among the heavyweights in judicial politics to merit a bona fide nomination to the Supreme Court. John Douglas John Douglas was a certain appointment for the lower federal bench. He also can be projected as a prime choice for nomination to the Supreme Court. 341 If he had accepted a lower federal bench appointment, in 1969, then when the two vacancies occurred on the high bench, two years later, he would have to be considered as a probable nominee. If he had accepted the position of Attorney General, he would have been considered the leading choice for appointment to one of the vacancies in 1971. Douglas attended Yale Law School, was a Rhodes Scholar, had clerked for Justice Burton, and came to Department of Justice from the law finn of Covington and Burling. His background was impeccable. He had served in the Navy, and his father was the senator from lllinois. Douglas established personal loyalty to Robert Kennedy while in private practice, working in concert to gain the release of over 1,100 Cuban prisoners in December, 1962. 341Interview with Joseph Dolan, (Englewood, CO: June 20, 1990). 106

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He would join. the Department of Justice, becoming head of the Civil Division when Bill Orrick went to the Antitrust Division. He was pan of RFK.'s inner circle, which included Burke Marshall, Clark, John Nolan, Harold Reis and Joe Dolan. 342 He established respect within DJ when he advised U.S. Attorney Arthur Garrity to go ahead and sue Democratic stalwart Matt McCloskey for breach of contract over faulty craftsmanship in the construction of a Boston area Veterans Hospital. McCloskey had been appointed Ambassador to Ireland by JFK, in 1962. He had assisted in fund raising during the election, and was a staunch Kennedy supporter. RFK did not relish the lawsuit, but backed Douglas' decision to litigate. 343 When Kennedy ran for the Senate, Douglas came on board to organize administrative affairs and formulate strategy. 344 Corning from Yale Law School, he exemplified the role of legal troubleshooter that RFK placed upon his people. Even though Douglas headed the Civil division, he was utilized to oversee the 1963 March on Washington by Martin Luther King. Conclusion It is often argued that graduates from Ivy League law schools are trained to solve problems. 345 Then, it is said, Yale trains judges, and Harvard trains lawyers. The elite force of 500 that comes from the Yale Law School specializes in policy making and social values; they are imaginative, full of personality, and mindful of results. The elite force of 1500 that emanate from the Harvard Law School are narrow legal technicians, trained in finite applications of law; strict disciplinarians who stress precedent; discoverers oflaw.346 The Yale connection included future Justice White; future Attorney General Nick Katzenbach; Orrick; Oberdorfer; Norbert Schlei; and projected appointee Burke Marshall. From the Cambridge side of the Ivy League came Archibald Cox, the Solicitor General, who staffed his office with a near 100% solution ofHarvardites. John Douglas stands 34 2David, p. 241. 343Schlesinger, p. 413. 344Guthman, p. 305. 345Navasky, p. 181. 346Ibid., p. 283. 107

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out along with.Burke Marshall and Archibald Cox as probable nominees to the Supreme Court, all three hailing from the Ivy League. Prior to the 1968-69 judicial season, Chief Justice Earl Warren announced his retirement. President Johnson promptly nominated Associate Justice Abe Fortas as his replacement, and Fifth Circuit Court of Appeals Judge Homer Thornberry to take over Fortas' vacancy. The Senate Judiciary Committee approved the Fortas nomination, but when debate went to the full Senate, it ran into filibuster, led by Senator Robert Griffin (R-Michigan). After seven days, following a failed cloture vote, Fortas asked the President to withdraw his name. LBJ did so, and this left Thornberry turning in the wind. The Senate never acted on his appointment, as there was no vacancy to fill. Thornberry's credentials as a judge were similar to those of G. Harrold Carswell, the failed Nixon nominee. Initially, Thornberry was a JFK appointment, but was formally nominated by Johnson a month after the assassination for the federal district coun.347 In July, 1965, he was elevated to the Fifth Circuit, serving with such notables as Judges Wisdom, Brown and Irving L. Goldberg and Carswell. Prior to his service on the federal bench, Thornberry had been mayor of Austin, Texas, and later succeeded Johnson in the House of Representatives. The charge of "cronyism" saturated his nomination to the Supreme Court, and likely would have deflated any attempt by RFK to renominate him. This point is especially salient because the only seat immediately available for an appointment was that of Chief Justice. Thornberry had the closest of ties to LBJ348, but did not enjoy such rapport with RFK. His ability to receive confirmation appeared solid. As part of the Fortas package, he enjoyed the support from notable Southern Democrats, including Senators Eastland and Russell, and Minority Leader Senator Everett Dirksen (Rep.-Illinois).349 However, the withdrawal of the Fortas nomination killed his chance to serve on the Court because RFK was not likely to nominate him for the position of Chief Justice. He had another person in mind. 347McFeeley, p. 28. 348Ibid., p. 37. 349Ibid., pp. 116-117. 108

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CHAPTER FIVE THE APPOINTMENTS The newly elected president was given an enviable assignment of naming two Justices to the Supreme Court during his first year in office. In 1968, Chief Justice Earl Warren announced he would retire, providing LBJ with the opportunity to name his successor. Senate Republicans charged this lame duck process intolerable. Led by Senators Thurmond and Griffm, a coalition of Republicans and Southern Democrats halted the promotion of Justice Fortas from the end of the bench to the center seat, and muted the nomination of Judge Thornberry, who was named to succeed Fortas. Both nominations drew the ire of conservative Senators, and Fortas was called to testify before the Judiciary Committee. This was the first time a nominee for the position of Chief Justice had ever accepted an invitation to testify. 350 During rigorous sessions of examination, Fortas was made to defend his positions on previous cases, especially on obscenity and criminal defendants rights. Then he was grilled on the issue of judicial impropriety stemming from his acceptance of a $15,000 fee from American University for seminars he taught over the summer. What caused the specter of impropriety to be raised was whether or not the money came from businessmen who might later fmd themselves before the Court. 351 In fact, the son of one of the businessmen was facing federal criminal Fortas survived.those attacks, and was affmned by the Judiciary Committee 11-6. His nomination then went to the full Senate, where it met with a six day filibuster, led by Senator Griffin. A motion for cloture failed by fourteen votes, and on October 2, faced with the prospect of another filibuster, Fortas asked the President to withdraw his nomination for Chief Justice.353 Even though LBJ had received assurances from the Senate Minority Leader Everett Dirksen that the Fortas nomination would receive Republican support, and Senators Eastland and Russell were in the fold, the nomination fell to political intrigue. There were charges of double-cronyism, since both Fortas and Thornberry enjoyed intense friendship with the President. There were charges of impropriety because Fortas 350Pollack, p. 278. 351Jbid., pp. 280-281. 352McFeeley, p. 117. 353Pollack, pp. 281-282.

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advised LBJ on political issues, while serving on the Court. The most accurate reasoning that accounts for the intensity of effort to rebuff the Fortas appointment was the lame duck nature of the nomination. Senate Republicans, and conservative Democrats, correctly gauged that a successful override would halt Johnson's effort and allow the next president to appoint a more conservative Chief Justice. In addition, a successful override would keep Thornberry off the high Court. The prospect of Nixon being able to make the nomination whetted their appetite all the more. Following the retraction of the nomination, investigative reporting uncovered some disreputable business practices on the part of Fortas. Life magazine broke the story that Fortas had accepted $20,000 from a foundation funded by millionaire Louis E. Wolfson to serve as its administrator. Wolfson had been a client of Fortas' law firm before Fortas became Associate Justice, and was being investigated by the Securities and Exchange Commission (SEC).354 In 1966, he was indicted by the SEC and boasted that Fortas would exercise his influence to help get him out of trouble. Wolfson was convicted, and Fortas returned the $20,000. Significant to the chronology of events is the fact that Life magazine was assisted by Nixon's Attorney General John Mitchell. The Attorney General provided Life with critical data needed for its banner story.355 Also included in this network of political sabotage were William H. Rehnquist and Will Wilson. Rehnquist, who was then serving as Assistant Attorney General, told Mitchell that if it could be determined that Fortas provided any assistance to Wolfson, they could prosecute him.356 There was never any showing of prima facie that Fortas asked LBJ to intervene, or advised Wolfson on criminal matters. Most important, there was never any showing that Fortas had contacted the SEC on behalf ofWolfson.357 John Erlichman received an advance copy of the article entitled "F onas q.f the Suvreme Court: A Question qfEthics." He informed Mitchell, who quickly summoned all of the major news services in Washington, of the impending release of the Life article. When the story went public, on May 4, the maelstrom began. 354Douglas, p. 357. 355Bob Woodward and Scott Armstrong, "Picking A Justice: Justice Is Blind?," from American Government: ReadiDKS on Contjnujty and ChanKe, edited by Robert J. Harmel (New York: St. Martins Press, 1988) p. 429. 356Jbid. 357Douglas, p. 358. 110

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Political actors were clamoring for the impeachment of Fortas. Nixon wanted a simple resignation. He knew that a second appoinnnent to the Comt would give him an ability to cripple the liberal majority bloc. He also understood that an impeachment would be time consuming and possibly counter-productive. He wanted to make two quick nominations, rather a single one. If an impeachment of Fortas failed, then he would be without that second appoinnnent. Yet, if he could replace both Warren and Fortas with conservatives, forty percent of the bloc would have been eliminated. On May 6, Wolfson turned over documents to the Department of Justice which showed Fortas was to receive $20,000 a year in perpetuity from his family foundation. 358 Even though the contract called for Fortas to serve as director of the foundation, the length and terms also included provisions for Fortas' wife to receive the stipend. The contract had been cancelled by mutual agreement after a single payment of $20,000, which Fortas later returned to Wolfson. However, the timing of the refund was salient because it occurred after Wolfson's indictment.359 When Mitchell was shown the documents and realized they were genuine, he became ecstatic. He discussed the matter with Nixon, and they decided Mitchell should go to Earl Warren with a political agenda. On May 7, Mitchell showed Warren the contracts, adding other pertinent material, and then told the Chief Justice he was soon to obtain documents that showed Wolfson discussed his criminal case with Fortas, and had asked him to pursue an executive pardon from LBJ. Mitchell then told Warren if Fortas were to resign, the investigation by Justice would "die of its own weight."360 Earl Warren was incredulous that Fortas could have been so stupid. It was clear to him that Fortas would have to resign. During the next week, he pressured the Associate Justice to step down, and engaged the rest of the Court to help influence Fortas' decision. The only support on the Court came from William 0. Douglas. He asked Fortas if any impropriety had occurred; whether legal advice had been given; if any contact had been made with the SEC; and whether or not he had gone to LBJ seeking an executive pardon. Fortas said that none of that had happened, so Douglas urged him not to resign. The fact that Will Wilson, another 3 S 8Woodward, p. 429. 3S9Douglas, pp. 358-359. p. 430. 111

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assistant attorney general under Mitchell, had leaked information on the case to the press illustrates how the Deparnnent of Justice became involved in what was later to be known as "ratfucking." The facts that no criminal involvement was ever alleged in court, or proven elsewhere, against Fortas, but Mitchell and Erlichman were later convicted in federal court of crimes including obstruction of justice, makes the whole incident humorous. For Abe Fortas, it was humorless. He defended himself at a Supreme Court Conference, stating there were no improprieties, but agreed that it would be in the best interests of the Court that he resign. On May 14, 1969, he resigned his seat at the end of the bench. It is only speculation whether Nixon, upon his own resignation from office, discussed an executive pardon from his handpicked successor, Gerald Ford. The events of the six years that ensued following the Fortas affair illustrate how political dirty tricks were commonplace in the Nixon Administration. The entire government apparatus was utilized to "ratfuck" his political enemies. The discovery of his political hit list is common knowledge, and dramatized effectively in the movie Mi. The Presidents Men [sic]. Following the successful orchestration of the political assassination of Fortas, Nixon went after Justices Douglas and Brennan. Douglas writes, "The impeachment effort against me was the direct result of the failure of the Senate to confirm Clement Haynesworth and Harrold Carswell, whom Nixon had named to take the place ofFortas."361 House Minority Leader Gerald R. Ford said, "If the Senate does not confirm Carswell, we'll impeach Douglas."362 Both Douglas an.d Brennan survived the attacks made against them by the Nixon administration. The similarity of charges levied against Brennan and Douglas, and the ease with which Nixon toppled Fortas, also illustrate the political nature of Supreme Court appointments. In this case, Nixon attempted to destroy the judicial careers of sitting Justices; in order to remake the Court in his own image. Vice President Agnew, another convicted felon from the Nixon administration, lambasted Douglas in public on April11, 1970.363 On April 15, Gerald Ford made statements in the House chamber that a conflict of interest may have existed when Douglas opined in Ginzburg v. United States. 383 U.S. 463 [19661 that a certain publication was not obscene. He also attempted to lay the grounds for 361Douglas, p. 359. 362Jbid. 363Jbid. 112

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impeachment with a diatribe that "conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office. "364 The supposition being made by Ford was that impeachable offenses need not be "high crimes or misdemeanors" but only offenses that a majority of the House feels it to be at any particular moment, and conviction be warranted only when two-thirds of the Senate decided so. The intent is clear, but when it came time to impeach a President of his own party, Ford sounded a different note. His quick pardon of Nixon for any crimes he may have committed emphasized the dogma of American party politics. The political swirl that surrounds both the Fortas-Nixon and Nixon-Ford affairs reeks with the stench of partisan politics at its worst. Allegations were never proven caused the resignation of Justice Fortas; yet it required criminal convictions of his top aides, including Attorney General Mitchell, and looming impeachment, before Nixon was finally forced to resign. Earl Warren was scheduled to step down from the center seat, in 1968. The failure of the Fortas nomination created a new set of circumstances. Republicans within the Senate, including Minority Leader Everett Dirksen, felt that Fortas' resignation had been tendered and accepted, so the next issue concerned Warren's replacement. Senate Democrats offered another interpretation. They felt Warren's resignation was tendered to LBJ, and because the Fortas nomination was vanquished and no successor had been announced, the resignation was no longer valid. A separate resignation would have to be submitted and accepted by the new President. Had Robert Kennedy lived, there would not have been a controversy. Warren would have stepped down, and RFK would have appointed his successor. With Nixon in the White House, a truly adversarial context had transpired. Warren wanted to retire from the Court, but he promised LBJ he would remain on the bench. 365 In addition, he did not want to allow his political enemy to nominate a new Chief Justice. Warren did not want to attempt to outlast the president, because there was no guarantee his health would hold up for four years. In addition, there was the prospect Nixon might be reelected to a second term in the White House. Finally, an agreement was reached. Warren would serve for the 1968-69 judicial season and then step down. When Fortas announced his resignation, the president 364Ibid., p. 360. 365Pollack, p. 283. 113

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was provided a lucrative and fateful opportunity to appoint two justices to the Supreme Court. It is projected that without the political assassination the Nixon administration conducted against Fortas, his dealings with Wolfson would still have come out. Fortas had not violated the law, and was never formally charged with impropriety. He passed the scrutiny of the Judiciary committee, while under the cloud of cronyism and irresponsible behavior. However, investigative reporting was coming of age. Life had published its piece on the Wolfson-Fortas deal. Fortas exercised very poor judgment, and it was inevitable that he would have had to step down. With Robert Kennedy in the White House, that scenario still existed. Fortas was a Johnson appointee, and though respected, he did not enjoy the everlasting support that he would have required in order to ride out the storm created because of his dealings with Wolfson. RFK would not have gone to the wall for Fortas, and would have welcomed the opportunity, just as Nixon did, to nominate his successor.366 Burke Marshall By all accounts, Burke Marshall enjoyed a very special status with Robert Kennedy. Marshall served loyally as the Assistant Attorney General in charge of the Civil Rights Division within the Department of Justice. He also was a member of the inner circle of confidants, which included Joseph Dolan, Robert Morgenthau, Lou Oberdorfer, and later, John Douglas and Ramsey Clark. Marshall was qualified to step into a Supreme Court vacancy. He passed every screening methodology with the highest grades. His personal loyalty to Robert Kennedy is beyond dispute. In a reciprocal fashion, Kennedy held Marshall in the highest regard. John Seigenthaler and Joe Dolan, both acknowledge the faith that RFK had in his integrity and professional intelligence. Seigenthaler is absolutely positive that Marshall would have been appointed to the Supreme Court by President Robert F. Kennedy.367 Joe Dolan is equally sure of a Marshall appointment.368 Professor 366According to interviews conducted with Professor Nonnan Provisor and Dr. Warren Weston, both Professors of Constitutional Law and Judicial Politics, Mettopolitan State College of Denver (Denver, CO: June 16-18, 1990). 367Interview with John Seigenthaler, Editor of the Nashville Tennessean (Nashville, TN: June 26, 1990). 368Joseph Dolan served the Kennedy Adminisb'ation as Deputy Assistant Attorney General in charge of screening judicial appointments and later became Roben Kennedy's Adminisb'ative Assistant. 114

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Cass Sunstein,.of the University of Chicago, feels that Marshall would have been one of the frrst appointments.369 Professor David O'Brien equally supports the conclusion that Burke Marshall would have been one of the frrst two appoinnnents Kennedy would have made to the Supreme Court. 370 What is important about Burke Marshall is that he would have passed senatorial scrutiny. Not even Senator Eastland possessed the necessary political arsenal to keep Marshall off the bench. The respect that developed over the years between Eastland and Kennedy was not one of shared puritanical belief. It was a relationship based upon power sharing. Eastland knew full well that Kennedy could be an awesome adversary, especially on enforcement of civil rights. The incident at Ole Miss, and the resolve demonstrated during the Freedom Rides, assured him of that. The lawsuits generated from DJ during RFK's tenure touched even Sunflower County, Eastland's home district. The nature of judicial appointtnents made commonplace professional interaction between the Attorney General and chairman of the Senate Judiciary Committee. Kennedy was aware of the authority that was conferred with the title of committee chairman. An often mentioned story concerns an alleged deal that was struck in a senatorial hallway where Eastland was rumored to have told RFK that "if you give me Harold Cox, I'll give you the nigger."371 Harold Cox was a friend and former law partner of Eastland. His appointment to the federal bench in Georgia was supposed to be the political ransom for the Kennedy appointtnent of Thurgood Marshall to the Circuit Court of Appeals. While the authenticity of that story is questionable, it does reflect the type of relationship that existed between Eastland and Kennedy. RFK states that he never discussed the Cox appoinnnent per se with Eastland,372 but there are sufficient indicia of some interaction. Without doubt there was interaction concerning other federal bench appointments. In addition, the two discussed the development of civil rights in Mississippi, and elsewhere in the South. The appointment of Cox is an illustration used by critics of RFK to show he was willing to sacrifice his ideals when faced with political reality. Cox was not a 3 69Jnterview with Professor Cass SWlStein, Professor of Judicial Politics, University of Chicago IL: June 28, 1990). 70Interview with Professor David O'Brien, Professor of Judicial Politics, University of Virginia (Charlottesville, VA: May 9, 1990). 3 71Schlesinger, p. 331. 372Quthman, Robert Kennedy: In His Own WordS, p. 109. 115

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supporter of civil rights for blacks, and was renowned for issuing rather racist diatribes from the bench. These included refening to black litigants bringing voting rights cases as a "bunch of niggers ... acting like a bunch of chimpanzees"373 Eventually, even Eastland became embarrassed and asked Cox to resign his seat, which he refused to do.374 What is present is an interaction between Eastland and RFK that was based upon deference to the respective power each person could wield. Critics charge that RFK was willing to support civil rights legislation, and utilize federal authority to insure equal application of the law, but was also willing to appoint racist judges in the South, to placate men like Eastland. RFK understood the dogma of politics. In order to obtain certain legislation, there exists the reality that debts and favors are incurred. Compromise and trading are part of the legislative process. 37 5 If Kennedy was willing to place judges like Cox on the lower federal bench, it must also be considered that he knew the Fifth Circuit Court of Appeals could (and did) overrule; and if appealed out, the decision was subject to the review of the Warren Court. The fact that RFK was utilizing federal attorneys to argue cases in the South illustrates his knowledge of the system; that discovery presented at the trial court level would produce prima facie evidence to appeal, if necessary, to the Fifth Circuit, or the Supreme Court. It is valid criticism to say that some ofRFK's appointments to the lower federal bench were not helpful to the cause of civil rights for blacks. Included in this envelope would be William H. Cox, J. Robert Elliot, E. Gordon West, and Walter Gewin.376 To make the conclusion that their appointments were part of a larger strategy requires evidence that critics fail to show. The appointment of Judge Luther Bohannon was a political tradeoff. Senator Robert Kerr (D-OK) demanded that Bohannon receive a federal judgeship. Kerr was the second ranking Democrat on the Senate Finance Committee, which was responsible for tax legislation. The tax initiatives of the JFK administration were being stalled, in committee. Bohannon had received unsatisfactory ABA ratings, and failed the scrutiny of John Seigenthaler, who was sent to Oklahoma.to make a special review of his credentials. Still, Bohannon was nominated. The administration received favorable legislation, and the additional 373Wofford, p. 168. 374Bass, pp. 164-165. 3 75An excellent work on this subject is The Dance of Legislation by Eric Redman (New York: Simon and Schuster, 1973). 376Guthrnan, pp. 107-115. 116

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bonus that Bohannon became known as a pro-civil rights judge. Political interaction on a federal level requires the input and cooperation of many different entities, each possessing an agenda and a constituency. There had to be some modification of policy, in order for the Kennedy Administration to obtain policy; there had to be bargaining, in order for the Administration to gain some Senatorial votes. RFK was a political pragmatist He understood the bargaining process. His appointments to the judiciary reflect that understanding, especially the Bohannon appointment. When the screening process is undertaken for Supreme Court nominations, the executive must consider the poll tical price a controversial nominee will cost. RFK would not have appointed Frank Johnson, or J. Skelly Wright to the Supreme Court. The political price was too high. The recognition of that fact does not equate to sustaining a charge that RFK was willing to sacrifice his ideals for results. The first two nominees to the Supreme Court were willing and able to achieve the same type of opinions concerning the application of justice that Johnson and Wright could issue; and the political price for their Senatorial confmnation was not an issue. Therefore, it is wrong to state that RFK would forsake his belief in the pursuit and application of justice for political expediency. Instead, he would have placed on the Court judicial craftsmen that would support his ideals and still muster senatorial confirmation. Burke Marshall attended Exeter, and later Yale Law School, and was a member of the law firm Covington and Burling. He had taught corporate law courses at Howard University's Law School. He was appointed Assistailt Attorney General-Civil Rights Division in 1961, and he did work at the DJ of the highest merit. His loyalty to RFK was never suspect. He was described by Kennedy as having a "precise mind, incorruptible character, dry humor and intense moral conviction."377 Arthur Schlesinger, Jr., RFK's biographer, referring to the RFK Marshall relationship as it developed after the New Orleans desegregation crisis, states, "There was no one on whose judgment he relied more during the rest of his life."378 Marshall also enjoyed the endorsement ofJoe Dolan, John Seigenthaler, Walter Sheridan, and eventually, James Eastland. He was young and able, and shared Kennedy's political ideology. The only slight against his nomination would 377Bass, p. 131. 378Schlesinger, p. 311.. 117

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have been that .he was not Jewish. Since he is projected as the replacement for Justice Fortas, the religious issue would have been raised. It was not insurmountable. Within the bargaining process, it could easily be alleged that the third appointment to the High Court would be David Bazelon, who did meet the religious screening criterion. But Marshall's religion is not a critical deficiency. It could have become a positive factor, because there were lingering clouds of anti Semitism concerning the Fortas affair. If a senator was suffering from tacit anti Semitism, then the fact Marshall was not Jewish, would have been reason to vote in favor of his nomination. Within the intolerance of bigotry, a vote for Marshall would have been cast with the purpose of abolishing the Jewish seat. The lineage of the Jewish seat would have ended with the resignation of Fortas and the confirmation of Marshall. Within the mind set of anti-Semitism, Marshall's religion becomes a positive factor, rather than negative one. There is little doubt that Burke Marshall would have been one of the first two appointments Robert Kennedy would have made to the Supreme Court. This sentiment is shared by Professor David O'Brien. 379 It also enjoys the endorsement of Professor Cass Sunstein, of the University of Chicago; Professors Norman Provizer and Warren Weston, both Professors of Constitutional Law and Judicial Politics from Metropolitan State College of Denver; Joseph Dolan, Deputy Assistant Attorney General in charge of judicial screening for the JFK administration; John Seigenthaler, RFK's Administrative Assistant and troubleshooter; and Walter Sheridan, long-time Kennedy ally and assistant.380 When appointed to the position of Assistant Attorney General, Marshall quickly became an antagonist of Senator Eastland. During the initial Senate hearings on his confirmation, there were discussions about whether Marshall would "solicit" civil rights complaints, especially concerning voting rights. 381 When Eastland queried Marshall regarding flling cases based upon records, rather than 379Jnterview with Professor David O'Brien, Professor of Judicial Politics, University of Virginia (Charlottesville, VA: May 9, 1990). 380Jnterviews conducted with Professor David O'Brien, Professor of Judicial Politics, University of Virginia (Charlottesville, VA: May 9, 1990);Professor Cass Sunstein, Professor of Judicial Politics, University of Chicago (Chicago, IL: June 28, 1990); Professor Norman Provisor and Dr. Warren Weston, both Professors of Constitutional Law, Metropolitan State College of Denver (Denver, CO: June 16-18, 1990); Joseph Dolan, Deputy Assistant Attorney General of the United States (Englewood, CO: June, 1990); John Seigenthaler, Editor of the Nashville Tennessean (Nashville, TN: June 26, 1990); Walter Sheridan, Administrative Assistant to the Senate Labor Committee and former administrative assistant to Robert F. Kennedy (Washington, D.C.: June 29, 1990). 381Roberts, p. 69. 118

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actual complaints, he was told there would be filings if the suit was provable, even without specific litigants making complaints. This action would take place if statistics showed that voting registration was being denied because of race. Since most racial proscription from voting registration occurred in the South, Eastland was perturbed. He knew that Marshall would be looking carefully at statistical analysis of voting registration patterns in his own state, and throughout the South, as a basis for litigation. He announced the probability of a Senate filibuster on Marshall's nomination. RFK, motivated to action, appeared at the hearings, and glowered at Eastland. The intensity of his actions, unscheduled and unannounced, let Eastland know Kennedy was standing behind Marshall completely. This visit summoned a quick confirmation vote of the Marshall nomination, which included Eastland's affirmation. 382 Marshall combined his experience as a private attorney at Covington and Burling, with practical experience as Assistant Attorney General. He served as Vice President at the ffiM Corporation. He interacted with Kennedy on the highest level, during the New Orleans crisis, the Freedom Rides, the Ole Miss incident, and the mess with Governor Wallace; and as lead agent on voting rights and civil rights enforcement He was held in high esteem by colleagues in the legal profession. His ability to pass Eastland's muster as Assistant Attorney General, is evidence that confirmation to the Supreme Court would not have been a problem. While Southern senators would have engaged in hostile diatribe, and questioned his law enforcement record as Assistant Attorney General, they knew full well that Kennedy would have applied all necessary political force in order to obtain confirmation.383 In Marshall's case, Senatorial conf'rrmation would not have been difficult. Kennedy would have ridden into office with high voter approval. He could have argued a mandate from the people; he could have invoked repayment of political favors; he would have done all that was necessary to gain Senatorial confirmation of the Burke Marshall appointment. It must be recognized that Marshall would been considered for the post of Secretary of State. But the Fortas resignation was within the time envelope of 1968-69, and the Warren resignation was already on the table, it is unlikely that Marshall would have been 382.Ibid., pp. 69-70. 383It is speculated that Senator Griffm (R-MI) would have also been a vocal opponent of any Kennedy nomination, not withstanding that of Burke Marshall. 119

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appointed Secretary of State. Kennedy would not have wanted to move him from one position to another with such rapidity. Instead, he would have kept him free from entanglement and ready for nomination to the Supreme Court. It is projected that Burke Marshall would have been nominated and confirmed as Associate Justice, to replace the retiring Abe Fortas. Archibald Cox By 1969, Archibald Cox had earned accolades within the academic community as a legal scholar. He was accepted as the preeminent authority in the field oflabor law.384 In 1958-59, he collaborated with JFK to write labor reform legislation, which included reference to labor racketeering and dealt directly with material uncovered by RFK during his work with the McClellan subcommittee. Known as the Kennedy-Ives bill, it passed the Senate 88-1, in 1958. When it went to the House, it was subject to the stalling tactics of Representative Paul Griffin (Rep.-MI). Reintroduced in 1959, it became known as the Kennedy-Ervin bill, and passed 90-1, with Senator Barry Goldwater (Rep.-AZ) issuing the lone dissent. Again, Griffin led a fight against it in the House, and the bill emerged from joint committee as a watered down version of the original Senate initiative. JFK still killed fifteen amendments put on it by Griffin. It became law following the 1959 Congressional session.385 Cqx then became part of JFK's "Academic Advising Committee" which included scholars from Harvard, MIT, and other schools.386 When JFK began his ascent to the presidency, Cox was placed in charge of the writers that originated the policy papers on important issues including foreign and domestic policies, and especially Latin America, national defense, and the economy. 387 Cox gave up his post at Harvard in order to devote full time energy to his position within the Kennedy campaign. This expression of loyalty was deeply respected by RFK, and led to his appointment as Solicitor General. Cox, together with Myer Feldman and RFK, were responsible for issuing daily statements on issues during the 1960 384Navasky, p. 281. 385Sorenson, Theodore C., Kennedy (New York: Harper and Row, 1965) pp. 54-55. 386Ibid., pp. 117-118. 387Ibid., p. 178. 120

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campaign. At one point, Cox actually considered leaving the campaign, because he felt that he was not doing enough to advance the Kennedy cause. 388 He was persuaded to remain on board. In 1961, he accepted the position of Solicitor General of the United States (after Paul Freund declined). This made him the number three man in the DJ, behind RFK and Byron White. It also completed his professional experience. During World War II, Cox had served on the National Defense Mediation Board; and within the offices of the Solicitor General, the State Department and the Department of Labor. During the Korean Conflict, he served as chairman of the Wage Stabilization Board.389 He clerked for Circuit Court of Appeals Judge Learned Hand Cox's work in academe was distinguished. He was accepted within the community of scholars and within the legal profession as a peer. His work was already considered authoritative in the field of labor law. In September, 1962, the White House learned that Associate Justice Felix Frankfurter was going to retire from the Court The quest for his replacement began in earnest. Discussion surrounded the issue of the "Jewish seat." Myer Feldman, who had worked closely with Cox during the campaign, made it clear that Jewish organizations expected the legacy of the "Jewish seat" to be continued. Discussion turned to Paul Freund and Arthur Goldberg. In a memorandum, RFK wrote that Archibald Cox should get the nomination over Freund, because of his past service to the administration, and on merit.390 This early acknowledgement of Cox's skill and loyalty, by RFK, is a clear indication that Cox would be considered for any vacancy that would occur on the High Court. This conclusion is especially true because Cox was brought into the position of Solicitor General on JFK's insistence. As RFK and Cox worked together in the DJ, their mutual respect grew to the degree of trusting each other's judgment and position. There was a difference in age and educational backgrounds. RFK had attended the University of Virginia Law School, while Cox had taught at Harvard Law School. Kennedy was in his mid-thirties, Cox his early forties. They shared the belief that law should be the statement of justice, the courts the harbinger of that justice, and the government the administrator of the law. These beliefs require qualitative pursuits 388Interview with Walter Sheridan (Washington, D.C.: June 29, 1990). 389Guthman, We Band Of Brothers, p. 93. 3 9Schlesinger, p. 407. 121

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within the realm of an ever changing America; they require judicial activism. The relationship that developed between Cox and RFK was not one of deep personal friendship; it was a reciprocal relationship of respect that grew stronger as their interaction increased. As Solicitor General, Cox distinguished himself to the point that he was referred to as the "tenth Justice: He knew the inner workings of the Court; he understood its personality, as well as the individual tendencies of the Court members. Cox was so respected by the Justices, that on a narcotics case involving error, they actually granted him an extra half-hour of argument, in order to hear his lecture on the law of sales. 392 As Solicitor General, he articulated the government's position in what Chief Justice Earl Warren refers to as "the most important case of my tenure on the Court: This is an extremely robust statement by the Chief Justice (when it is considered that Brown v. Board of Education [19541 was also decided during the Warren Court era). Cox broke new ground concerning the political questions doctrine when he carried the argument in Baker v. Carr. 369 U.S. 186 [19621. The issue of this case was legislative reapportionment, which is as far into the political thicket as the Supreme Court can get.394 Previously, the Court had enforced the political questions doctrine when it came to reapportionment cases. Succinctly, the doctrine denies standing to parties because the justiciable issue is political in nature; or is constitutionally directed to Congress, or the president; or would require a policy determination by the Court; or would, upon Court adjudication, cause embarrassment to the Court, Congress or the president; or is of a nature of an unusual need (which generally means foreign affairs). By arguing this case, Cox clashed with the ideals of his early mentor, Judge Learned Hand. He also clashed head-on with the judicial philosophy of Justice Frankfurter. Both men believed in the philosophy of judicial restraint when it came to answering political questions. Cox, like Frankfurter, came from Harvard, and felt a genuine respect for the canons of judicial interpretation, which invited the invocation of the political questions doctrine in this case. 391 Ibid., p. 426. 392Navasky, pp. 286-287. 3 9 3W arren, p. 306. 394Peltasen, p. 28. 122

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In carrying his argument, Cox convinced the majority that malapportionment was a denial of the equal protection clause of the Fourteenth Amendment, and was therefore justiciable before the Court Frankfuner issued a stinging rebuttal in his dissent. He lambasted the majority for overruling his opinion in v. Green. 328 U.S. 549 [19461. Even though Frankfurter's stance in Colegrove was not controlling, he felt that it was. He opined that the Court was breaching the political questions doctrine that he had laid down in Colegrove and that the new ground it was embarking upon was tantamount to rewriting the Constitution. He stated that the issue in Baker v. Carr f19621 involved the Guaranty Clause of the Fifteenth Amendment, not the Equal Protection Clause of the Fourteenth Amendment, and for that reason was non justiciable. While his dissent is lucid, and bears the earmarks of constitutional scholarship, it is pregnant with the diatribe of a man angry and hostile. He charges the majority in Baker with acting within the abstract and hypothetical and of missing the issue completely. Yet, in his own assertion in Colegrove, he advocates judicial inaction, or restraint under the rubric of the political questions doctrine. Ultimately, Frankfurter was angry about being overturned by six of his brethren, including his nemesis, Chief Justice Warren. Baker v. Carr [ 19621 is considered a watershed in allowing equal protection claims to be heard by the Court when juxtaposed against the political questions doctrine. It shattered the barrier that the doctrine posed for blacks, and others, who sought redress against state legislatures that were denying the one-person, one-vote principle by gerrymandering. It also presented a precedent for future Court majorities to embrace when seeking to shatter funher the doctrine used as a barrier for judicial redress. Archibald Cox understood the far-reaching nature of the decision v. Carr [19621. He had the ability to understand watershed cases beyond their immediate impact. Without doubt, he understood that the decision opened the opportunity for redress of grievances that had previously been denied because of Frankfuner' s aniculation in Colegrove. The door to the Court was being pried open by a new Court majority. 123

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Cox was not a strong advocate of the one-person, one-vote principle, but he was deeply concerned with the application of equal protection of the law.395 Robert Kennedy was a strong advocate of the one-person, one-vote principle, especially in his insistence that the way to overcoming racial strife was the exercise of the franchise by blacks. This mix of interests, constitutionally protected rights (Cox), and the socialization that would result from the exercise of the franchise (RFK) becomes primary in showing a common belief in the importance of the franchise, and in the application of justice. RFK and Cox understand the fundamental nature of voting rights and equal protection of the law. If we add to that argument, the bond that developed because of the professional interaction between the Solicitor General and the Attorney General, the result a solid foundation on which to judge personal loyalty and professional merit. The combination of those factors lead to the conclusion that RFK would have most likely nominated Archibald Cox to the position of Chief Justice of the Supreme Court, to succeed the retiring Earl Warren. Cox would have faced a strong Senatorial opposition from Senator Griffin and the Southern bloc. Since Baker v. Carr [19621 had sliced into the power base of state legislatures by crushing the political questions doctrine barrier, it also signaled a continuation of Court imposed relief to the indecencies of the Deep South. Together, Brown v. Board of Education 09541, and Baker V. Carr [19621, emphasized the new articulation of justice that was emanating from the Warren Court The retiring Chief Justice was concerned that his successor be cut from the same liberal cloth. While Cox was a "restrainist" he was predisposed to the application of justice by the judicial branch. This belief coincides with a similar belief of his appointing president, Robert F. Kennedy. Senator Eastland, who did not oppose the Fortas nomination, would have realized that opposition to a Cox nomination would have been futile. RFK had appeased Eastland with the William H. Cox nomination to the federal district court, and had deferred on the promotion of J. Skelly Wright to the Fifth Circuit Court of Appeals. He would have saluted Eastland's power by not placing Wright, or Johnson, into nomination to the High Court. But he would not have backed down from a fight over an appointment of Archibald Cox to the center chair. Cox 395Navasky, p. 298. 124

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presented the proper mix of political ideology, personal loyalty, academic credentials, professional peer acceptance, and experience to gain both the nomination and Senatorial confmnation. Griffm and Thurmond were weary from beating down the Fortas nomination. They probablywould not have had the muscle to generate the same level of chamber-wide hostility against a Cox nomination. Griffin's antagonism could be traced to the 1958-59labor reform bill that Cox worked on with JFK; Thurmond's reaction could be traced to simple resentment of the changing times. It is within the context of the times that the issue of confirmation must be discussed. Desegregation was happening; Baker v. Carr was over six years old; the 1964 Civil Rights Act was law; and RFK would have removed American troops from Vietnam. In 1969, Senators would not have had the political muscle to face down the nomination of a popular president Neither would they have the broadsword to cut down Cox, as they had done to Fortas. Thurmond and Griffm would have cast a nay vote, and perhaps a few others; but confmnation of Archibald Cox would have been a reality. David Bazelon and John Dou&las In September, 1971, two vacancies to the Court occurred. Associate Justice Hugo Lafayette Black, appointed in 1937, by President Franklin D. Roosevelt, and Associate Justice John Marshall Harlan, appointed in 1955, by President Eisenhower, both were suffering from debilitating illness, and announced their resignations. This combination presented an opportunity similar to that which had occurred in 1969. The president could send a package of two nominees to the Senate, or decide on singular nominations. The complexion of the proposed nominees makes it likely they would have been presented as a package. Based upon the methodology of the screening process, we may project that the two nominations would have been David L. Bazelon, and John Douglas. Bazelon would represent the experienced juror, having served on the District of Columbia Circuit Court of Appeals for more than twenty years, and as its Chief Judge since 1962. The two previous appointments had been scholar prosecutors with cords leading inside the Kennedy Department of Justice. Bazelon was a noted scholar and an experienced Appellate Court judge; was a Chief Judge; had authored authoritative opinions on the mentally challenged; had experience in 125

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criminal justice; and was notably separate and distinct from the Kennedy DJ. His nomination would. have quieted criticism that the Kennedy appointees were men of words, not work. The Cox nomination would not have met with such criticism, since he was so well respected by sitting Justices, but the Marshall nomination would have been subject to stinging criticism because of his lack of bench experience. Bazelon represented quite the opposite. Any critique of his jurisprudential skill would have been based on the decisions he made while on the D.C. Circuit Court. Since he had issued novel opinions on the mentally-challenged defense, that area would have met with Senatorial scrutiny. He was a scholar in the fields of mental health and genetics, and could have defended those opinions against an onslaught from non-scholarly Senators. They did not possess the breadth of knowledge in those medical fields to continue a challenge that might have come up during confirmation hearings. It is one thing to utilize staff information during initial inquiry, and it is quite another to be able to argue effectively when faced with a living, active scholar and judge, whose ability to defend his position is girded by years of experience. Bazelon' s record also boasted of the three years of experience he had working as Assistant Attorney General in charge of the Lands Division. He had received his law degree from the prestigious Northwestern School of Law. He met the criteria of merit, scholarship, experience, ideology, and peer review. There are two factors that require examination: (1) the lack of professional and personal interaction with RFK.; and (2) his age. Bazelon had not had the political or personal interaction that Marshall, Douglas or Cox had with Kennedy. This lack of interaction would not have been disabling. The opinions Bazelon had issued from his position on the D.C. Circuit were capable of rendering evidence of loyalty to a judicial philosophy. As Chief Judge, he had had the power to issue decisions and assign the writing of opinions; he had not veered from his expressed belief that mentally challenged persons were entitled to legal defense, legal rights and equal protection of the law. The area of mentally challenged rights was of great concern to RFK., and Bazelon was the pioneer in that field, as it pertained to jurisprudence. A seat on the Supreme Court would have set into stare decisis the adjudication on issues within that field. While showing merit, and scholarship, those decisions illustrate conviction of purpose. The decisions show loyalty to his own beliefs and convictions, and are not representative of loyalty to RFK. However, the decisions 126

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show a consistency with RFK's sincere belief that the area of jurisprudence regarding the mentally challenged needed definition and activity from the highest court in the land. Bazelon' s jurisprudential skills and abilities are noted by Associate Justice William Brennan, and the fact the D.C. Circuit was known as "Bazelon's Court" also displays his merit as a judicial craftsman. This would counter his lack of interpersonal relations with his appointing president. Archibald Cox did not enjoy an intense personal relationship with RFK, but that fact did not deter him from being considered for the Frankfurter vacancy. It was Cox's acceptance by peers, together with his scholarship and work as Solicitor General under RFK, and loyalty to JFK, that placed him in a position to gain nomination to the Court Bazelon displayed a similar loyalty, though it was evidenced by adherence to jurisprudential interpretation, and not simply to the individual (RFK). His ability to articulate opinions from the Circuit Court was a positive factor. It represented judicial experience, autonomous of the Justice Department. It also answers the charge of critics that Kennedy nominations were being made from academe, not lower federal courts. Bazelon' s independence from the inner circle of Kennedy confidantes eradicates any charge of cronyism that might be advanced by hostile senators against his nomination. Within that envelope, his lack of personal interaction might even have become a positive factor in the screening process. His age, sixty-three, would have been an item for consideration, but this deficiency was not critical. Three of the four Nixon appointments were men over the age sixty. Nixon was bent on re-making the Court in his own image; so he understood the need for longevity; age became a criterion. Burger was sixty-one; Blackmun was sixty-one; and Powell was sixty-four years of age, at the time of their confmnations. When we consider that RFK would have been making a second appointment in the same package with Bazelon, the criterion of his age becomes less important. John Woolman Douglas emerges as the fourth choice for nomination to the Supreme Court. His resume included impeccable educational credentials and combined professional experience in the public an:d private sectors. As a private attorney, he had worked on foreign policy matters in 1962. He then served as Assistant Attorney General of the United States from 1963-66. He possessed very high marks in personal loyalty to RFK, ranking second only to Burke Marshall. His wisdom was sought and required for many important decisions that occurred 127

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within the Kennedy Department of Justice; he was a troubleshooter extraordinaire. Douglas would have been screened opposite Louis Oberdorfer, Ramsey Clark, Griffm Bell, Robert Morgenthau, Abraham Ribicoff, and, more than likely, Shirley Hufstedler (from the Ninth Circuit Court of Appeals). Oberdorfer would have been Douglas' primary rival for the fmal vacancy. There are several important considerations that need amplification when we discuss John Douglas' nomination. His association with the Kennedy brain trust was common knowledge. An appointment to the Court would have angered hard-core Southern Democrats, Dixiecrats, and "strict constructionists." They would have viewed the triumvirate of Douglas, Marshall, and Cox, as personal representatives of RFK. The fact these three would have been sitting as a unit on the highest court in the land would have sounded the alarm that the welling up of a second ravaging wave against the customs and laws of the Old South was at hand. Considering that the machinery ending purely segregative ways was already functioning (including an envelope of civil rights legislation and court decisions), the ability of the Southerners to gain enough votes to kill the Douglas nomination based upon that issue was severally weakened. The coalition of Senators pulling together based on that issue, coupled with others who harbored a dislike for Kennedy, would have affected the Douglas nomination. Such is the nature of judicial politics. There would have been criticism that three of the four appointees were former assistants of Robert Kennedy. The true reason for such criticism would have been an anti-Kennedy feeling by Senators such as Griffin and Thurmond. Balancing that criticism would have been the support of such southern stalwarts as Senator McLellan and, probably, Senators Eastland and Long. Eastland's support would have cemented the posture of the nominees as meritorious for positions on the Court. The issue that three-fourths of the nominees were from the old Justice Department is partially muted by the fact that the Department of Justice is a natural source of appointments. By a large measure, the popularity of RFK at the time of the Douglas appointment is most salient. There would not have been enough "nays" to stop the appointment ifRFK enjoyed tremendous support in the polls. Senators' charge that Kennedy was making seventy-five percent of his appointments from his personal staff would have had some merit, but under scrutiny it would have been severally weakened. Cox was not an entrenched RFK supporter. Their relationship has sometimes been referred to as father-son. They accepted each other, but were not close personal 128

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friends. 396 Marshall and Kennedy were closely connected; so too were Kennedy and Douglas. There were no ties between Kennedy and Bazelon except a similar adherence to the concept that justice should be done by the American system of jurisprudence on a case-by-case basis. If Kennedy enjoyed popular support from the voting public, it is highly probable the Douglas nomination would have received only token resistance. Since we have projected that America would have ended its involvement in Vietnam and embarked upon a domestic war on poverty, Kennedy's popularity would have been very high. In 1968, Douglas could have crushed the bud of criticism if he had accepted a cabinet-level position or a lower post such as Solicitor General; or have accepted a seat on the federal district court, or United States Court of Appeals. Interviews conducted with Douglas in July, 1990, indicate he would not have accepted a lower federal bench appointment.397 But if pressured by Kennedy, or Marshall, in 1968, he might have accepted such an appointment. Twenty years produces a great deal of hindsight, and the promise of a Supreme Court nomination following a brief tenure on a lower federal court might have been enticing, even in 1968. Douglas might very well have taken a lower federal seat, knowing a nomination to the High Court was on the horizon. Yet his on-the-record statement that he would not have accepted a federal bench appointment other than to the Supreme Court has to be considered authoritative. Both Cox and Marshall had served inside the Kennedy Department of Justice. The Cox nomination would not have received a great deal of criticism because he was so well respected; the Marshall nomination would have drawn some fire from unfriendly senators issuing a hollow charge of cronyism. The Bazelon nomination would be immune from those types of charges. For that reason Bazelon and Douglas would have been presented to the Senate as a package. Bazelon would have effectively shielded the Douglas nomination from charges of cronyism. Douglas could have eliminated the issue if he had accepted a position on the federal court at either the district or appellate level, before 1971. His judicial record would have augmented his private and public experience and eliminate the lightening rod that strict DJ service caused. In 1968, Douglas would have received consideration for the cabinet level position of Secretary of State. Had he accepted 396Jnterview with Jolm Nolan (Washington, D.C.: July 31, 1990). 397Jnterview with Jolm Douglas (Washington, D.C.: July 30, 1990). 129

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that post, and later a nomination to the High Court, he still would have been subject to charges from wary senators that the president was stacking the Court with political assistants. However, service as Secretary of State positioned beside his previous service as Assistant Attorney General becomes advantageous for Douglas because it shows experience in both foreign and domestic policy apparati. Since the Secretary of State, together with the Secretary of Defense and the NSC, would have been actively involved in removing the United States from the Vietnam quagmire, Douglas would probably have received accolades from the press. This publicity would have enhanced his ability to gain senatorial confirmation. If Douglas had returned to the Department of Justice as Attorney General, or Solicitor General, his nomination would have received a fairly rigorous examination because criticism would have been made that the Court appointments were extensions of the Kennedy political machine. That charge would have had validity because Douglas had worked on RFK's senatorial and presidential campaigns; Cox on JFK's presidential campaign. As shown by the statistical abstract, judicial appointees are overwhelmingly selected from the legal and political sector. Whether they are former Justice officers, lower federal court judges, cabinet members, governors, or state judges, the overwhelming majority have served, or are serving, within the legal or political forum. That fact means the talent pool is limited, but broad enough that three of the four appointments need not come from the staff of a former Attorney General. The issue that seventy-five percent of RFK's Supreme Court appointments had worked at Justice during his tenure would have raised political concern. The fact that the Department of Justice is a natural source of appointments would have tempered that concern. Presuming Kennedy's popularity revolved around fifty-five percent, he could likely have overridden adverse senatorial reaction. If Kennedy's projected domestic and foreign policy agendas had proved successful, his popularity would have been high, and he could have muted any charges of cronyism. The Senate would not have faced down RFK if he had the numbers in the polls. The best scenario would have had Douglas accepting a federal bench appointment in 1968, and then elevation onto the Supreme Court in 1971. The next best scenario would have had him serving in the cabinet as Secretary of State, becoming the darling of the country for having orchestrated a successful and "honorable" withdrawal from Vietnam, and then received a promotion onto the Court, in 1971. The least favorable scenario would have been 130

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promotion from a position as Attorney General, or Solicitor General, onto the Court. There would have been an appearance of cronyism, providing unfriendly senators with ammunition to launch a political broadside attack making confirmation ticklish. Even under that set of circumstances, Douglas still would have been likely to pass the confirmation process. His ABA ratings would have been high; his educational and professional credentials were meritorious; and his father had served in the Senate, thereby giving Douglas needed support from inside the chamber. Packaged with the Bazelon nomination, the appearance of cronyism would have been absorbed. There is little reason Douglas would not have passed senatorial scrutiny during the confmnation process. Douglas had done his undergraduate work at Princeton, and later graduated from Yale Law School. He served on the law review and was a Rhodes Scholar. He had served with the United States Navy. He had clerked for Justice Burton and then gone into private practice with the prestigious law fmn, Covington and Burling. He was utilized in 1962 as a private attorney working under the auspices of the Department of Justice, to help facilitate the release of over one thousand prisoners captured during the Bay of Pigs fiasco. Working with Nick Katzenbach and Lou Oberdorfer, he helped secure the release of the prisoners by coordinating a transfer of pharmaceuticals to Cuba, from private American firms. A special bond was created by his faithful service, and he soon became an integral part of the RFK Department of Justice. In 1963, he gained the position of Assistant Attorney General in charge of the Civil Division, when Bill Orrick moved into the Antitrust Division. Douglas also had a bond with Burke Marshall since both men had worked at Covington and Burling and were Yale graduates, before entering service with the Department of Justice. Douglas filled the role of legal troubleshooter, which was a requirement within the Kennedy apparatus. He ran the gamut within the department, working in criminal matters, and on civil rights issues. In 1963, he was the primary troubleshooter for the department during the March on Washington. His service in that area was outstanding. Douglas was privy to inside information on the activities investigating organized crime and Jimmy Hoffa. He was in the select inner circle that discussed the viability of prosecuting Hoffa; he was involved in the networking of investigation of organized crime, especially within the Las Vegas envelope. When legislation was sent to the hill regarding wiretapping, Douglas' opinion was sought regarding the viability of the initiative. 131

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When RFK sought the Senate seat from New York, was brought in to "untangle administrative problems and advise on strategy. "398 As Kennedy began making the decision whether or not to seek the Democratic nomination for president, he sought the advice of the brain trust of Douglas, Marshall, Seigenthaler and Dolan. 399 The major debate on a Douglas nomination to the Supreme Court involves his elevation above Louis Oberdorfer, Robert Morgenthau, and Shirley Hufstedler. Those inside the administration emphasizing a gender criterion, would have pointed to Hufstedler, who was serving on the Ninth Circuit Court of Appeals. In the opinion of Joe Dolan, "she was an excellent judge. "400 What eliminates her from consideration is that she was an LBJ appointee, in 1968. The implied association with Johnson was enough to screen her from a Supreme Court nomination. Morgenthau is projected as accepting an appoinnnent as Attorney General inside the RFK White House. He lacked bench experience, and did not have the peer acceptance that Oberdorfer and Douglas enjoyed. Moving from the position of Attorney General to the Supreme Court would have launched an unmanageable charge of cronyism. The fact that he had a strong personal relationship with RFK, would have doubled the intensity of such a charge. Morgenthau would have best served the administration by continuing as Attorney General. Oberdorfer has to be considered nearly equal to Douglas in merit and personal loyalty. He came from the same Yale circle, and proved his worth as Assistant Attorney General in charge of the Tax Division (1961-65). In that service he displayed the necessary troubleshooter abilities required of all Kennedy confidants and Assistant Attorneys General. He was Jewish, though not an active participant in the religious theater.401 Religion is relevant to the Oberdorfer screening process because any proposal that he would satisfy the need of the "Jewish seat" is vulnerable to intense criticism and would likely backfire, subjecting the nomination to unneeded scrutiny. It is unlikely that Oberdorfer would have been promoted as satisfying the "Jewish seat" legacy. He had clerked for one of the men who were retiring, Justice Hugo L. Black. He served as John Douglas' 3 9 8Gutlunan, p. 305. 399Newfield, p. 199. 400futerview with Joseph Dolan (Denver, CO: July 16, 1990). 401Jnterviews with Joseph Dolan (Denver, CO: July 31, 1990) and John Nolan (Washington, DC: July 31, 1990). 132

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superior in gaining the release of the Cuban hostages in 1962. His Southern heritage would make him a logical choice, satisfying the demographic criterion. Interviews with the Kennedy brain trust contribute mightily to the conclusion that Douglas would have been RFK's choice when positioned opposite of Oberdorfer. When the tally is taken, Douglas emerges as the choice for nomination to the Supreme Court. The evidence taken from interviews with Dolan, Seigenthaler, Nolan, Sheridan, and from published works including those by Arthur Schlesinger, Jr., mitigates all other criteria, including the demographics, that weigh in Oberdorfer's favor. A probable scenario is that Oberdorfer would have moved to the lower federal bench, waiting for Justice William 0. Douglas to retire. The likelihood of that scenario is high. Oberdorfer accepted an appointment to the federal district court under President Carter. RFK, who enjoyed a personal relationship with Justice Douglas, would have been alerted by him regarding the probability of resignation. Douglas retired in 197 5. If there had been a determination that RFK would not retain the presidency, Douglas might have announced his retirement in 1971-72 allowing Kennedy a window of opportunity to name Douglas' replacement In that context, Oberdorfer would be the prominent figure to assume his seat on the Court. John Douglas would have been strongly identified with the politics of the Department of Justice. This identification was not an insurmountable problem for his confirmation by the Senate to the Supreme Coun.402 His credentials were above reproach. If the nomination were made even under the worst stated scenario, he still would likely have received senatorial confirmation. If promotion were made from inside the Kennedy cabinet, the probability of confmnation is overwhelming. John Douglas was qualified to serve as Secretary of State, and would have been considered for that position in 1968. When interviewed in July, 1990, he stated that he felt he was not qualified for that cabinet position.403 Examination of his record of service leads to an opposite conclusion. Interviews with the Kennedy brain trust reveal that Douglas is being "overly modest."404 The conclusion based 402Interviews with Professor Robert Nagle, Professor of Constitutional Law at the University of Colorado School of Law (Boulder, CO: August 1, 1990); with Professor William Beaney, Professor of Law at the University of Denver School of Law (Denver, CO: August 2, 1990) and Professor Howard Rosenberg, Professor of Law at the University of Denver School of Law (Denver, CO: August 1, 1990). 403Jnterview with John Douglas (Washington, D.C.: July 30, 1990). 4 04Jnterviews with Joseph Dolan (Englewood, CO: August 2, 1990) and John Nolan (Washington, D.C.: July 31, 1990). 133

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upon interviews is he would have been a likely choice for that position. Joe Dolan, whom we have projected as receiving the appointment of Deputy Attorney General of the United States, feels the likelihood of Douglas receiving a cabinet level position was high. Whether the position be Secretary of State, or another cabinet position such as Secretary of Labor, or of Health, Education and Welfare, or even Interior, the likelihood of a cabinet appointment was high. What is important about Douglas' accepting the post at State is that he would have been married to the disengagement of American involvement in Vietnam. That fact makes his senatorial confirmation to a position on the Court even more likely. 134

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CHAPTER SIX THE DECISIONS The most important cases that came before the Court between 1969 and 1980 concerned the First, Fourth, Fifth, Sixth, Eighth, Ninth, and Fourteenth Amendments to the Constitution. In addition, there were two series of cases that addressed the institutional tension created by Articles I, II, and ill, of the original Constitution. Chief Justice Archibald Cox, and Associate Justices Burke Marshall, David Bazelon, and John Douglas, would have had a significant impact on those decisions, and consequently, a governing voice in American constitutional law. Two companion issues require discussion before we examine the case histories. The first issue is whether the cases that were granted certiorari before the Burger and early Rehnquist Courts would have been distinguishable from those reaching the Cox Court A second issue is whether the judicial guidelines handed down by the Cox Court would have significantly altered the presentation of justiciable issues, not only before the Supreme Court, but lower federal and state supreme courts. It is the theme of this examination to illustrate how the four appointments would have impacted constitutional law. Cases and controversies would have been granted certiorari before the Cox Court just as they were initially granted before the Burger and early Rehnquist Courts. The Rule of Four, which requires four sitting justices to agree to grant certiorari, would not have significantly altered that caseload as it was ruled upon from 1969-80, even with Robert F. Kennedy's appointments.405 That conclusion should not be confused with the conclusion that the judicial articulation on the issues presented would have been significantly different. Succinctly, the wind would have blown from a different direction. The conclusion that lower federal court cases, and those emanating from state supreme courts, would still have required judicial review from the Supreme Court is justified both a posteriori and a priori. Cases and controversies have reached, and will continue to reach, the Court. Justiciable issues inherently require interpretation from the Court. Fundamental, watershed cases granted review by the Burger and early Rehnquist Courts would not have changed dramatically and would 405Interviews with Professor Robert Nagle, Professor of Constitutional Law, University of Colorado School of Law; and Dr. Warren Weston, Professor of American Constitutional Law, Metropolitan State College of Denver (Denver, CO: September 13, 1990).

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have reached the Court via the same causeway of certiorari. The title of the cases might have changed, but, initially, the issues would have remained static. Significant impact would have been felt in the legacy of opinion solidifying the doctrines announced by the Warren Court and with those finding their own genesis from the Cox Court The conclusion is that given the time frame of 1969-80, the Rule of Four would have allowed for a fundamental base of cases equal to that of the Burger Court. But the judicial craftsmanship would have been exercised by learned scholars and jurists. That type of judicial articulation would be a far cry from the helter skelter scholarship and craftsmanship that swilled while Warren Burger was at the helm. A second conclusion has to be stated clearly. The Cox Court would have created a bedrock of stare decisis that would have influenced the future cases brought before lower federal courts and those cases erupting from state courts. The jurisprudential stability created by the Cox Court would have had an enduring effect on cases as they were presented before lower federal and state courts. Eventually that stability would have influenced the types of cases that would have been granted certiorari before the Supreme Court The initial impact of having settled stare decisis would have been felt in the reduction of volume of cases requiring judicial review. That is, certain issues would have gained a measurable foundation on which to base clear and precise articulations, firmly held within the stare decisis of the Supreme Court. The legal expertise of the Kennedy appointees, and that of the sitting justices, would have announced doctrines to the lower courts either enhancing existing stare decisis, or clarifying legal mysteries that evolved from previous Court decisions. Within that envelope the necessity to continue granting certiorari would have been limited to opining clarification on the most finite points. The legal competency of Cox, Marshall, Bazelon, and Douglas, combined with that of Brennan, William 0. Douglas, and Thurgood Marshall, would have produced clear and defmite opinions, devoid of the cumbersome cloudiness that continues to surround many of the decisions of the Burger Court. The need for re analysis would have been minimized. Many of the decisions of the Burger Court were buoyed in the muddied seas of inarticulate and sometimes incoherent scholarship which constantly required additional adjudication. Those issues include desegregation, criminal defendants' rights, the exclusionary rule, the establishment 136

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clause, and the death penalty. For the Cox Court, other issues, including the right to privacy, would have come to full flower. The concern about whether the types of justiciable issues reaching the Court following the announcement of its watershed decisions would have dramatically changed requires additional discussion. The Supreme Court under the tutelage of Archibald Cox, staffed with RFK appointees, and coupled with Warren holdovers, would have presented clear doctrines and guidelines for lower courts to issue opinions. There would have been scattered lower court rulings clashing with the judicial articulations of the Court, thereby creating a need for remand or reversal, but that situation is normal and expected within judicial politics. While seeming redundant, it is separate from the certiorari issue. If lower federal and state courts are provided with settled stare decisis, they are left to issuing decisions in line with established doctrines, inventing mutated doctrines, or disavowing the doctrines.406 In essence, the conclusion is built upon the same foundation as that regarding the issue of granting certiorari. There would have been a normal caseload stylized towards finite clarification, remand, or reversal. The fundamental change would have occurred because the opinions of the Court would have been decidedly different. Companion to that issue, is whether the Cox Court would have commanded a generation of cases clothed in a maturity unknown to present constitutional law. The latter issue will be discussed in the conclusion of this work. A fourth issue, cousin to those previously discussed, is whether the amicus stance of the Kennedy Administration would have been a mirror-opposite of that of the Nixon Administration. Justiciable issues are always alive; but in the circumstance of a Kennedy Department of Justice they would have arrived in a different carriage. The government's own presentations would have been left at the doorstep of Robert Morgenthau, the projected choice for Attorney General. In that sense, cases dear to the heart of John Mitchell and other Nixon cronies would have remained in the closet; or they would have reached the Court under the same governmental auspices, but clothed in a much different amicus stance. Under Morgenthau, there would have been additional cases brought under affirmative action and desegregation categories. It is projected that organized crime would have 406When the Brown decision was announced, in 1954, Senator Eastland, and other Southern politicians, called for state courts and legislatures to disavow the Coun's decision. 137

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undergone a great deal more scrutiny than that which occurred under the Nixon regime; and civil rights violations would have been prosecuted more vigorously. There would have been a fundamental change in the Court's judicial interpretation of equal protection cases, and obscenity rulings, and there would have been clarifying opinions in death penalty cases. Many political scientists agree that there would have been a clarion call for alterations in public policy advancing the guidelines resulting from the decisions of the Cox Court.407 Examination of the public policies that would have come about requires advanced scholarship on the executive and legislative branches which floats well outside the rubric of this work. The watershed decisions themselves, on the whole, would have been dramatically different. That fact, in itself, is sufficient for examination of how a Robert F. Kennedy Administration would have affected American constitutional law. When Robert F. Kennedy was Attorney General, the Department of Justice made a concerted effort to bring equal protection and due process cases to national attention, both in the legal system and through legislative initiative. A similar envelope for civil rights enforcement would have presented itself to the new Attorney General sitting in RFK's Cabinet. In 1963, the Kennedy Administration pushed hard for a Civil Rights Bill, but it became stalemated in Congress. Following JFK's assassination, Congress advanced the legislative initiative with the Civil Rights Act of 1964, and the Voting Rights Act of 1965. The legislative initiatives that President Robert F. Kennedy would have been able to propose to Congress would have affected the types of cases brought forth to the judicial system, but that effect would have been felt more in the latter decades of the twentieth centwy,rather than the immediate years following his election to a first term. The Cox Court would have cleared up many misreadings of Warren Court decisions, and concomitantly built upon those that were already clear. Once the judicial system felt that impact, then the accompanying legislation would have made advancement in areas of civil rights and equal opportunity nearly undefeatable. The Court decisions would have nourished the legislative initiatives, and the executive branch would have implemented those directives with more than all deliberate speed. While cases would have emanated from the legislative 407Interviews with Dr. Warren Weston, Professor of Constitutional Law at Metropolitan State College of Denver; Professor Howard Rosenberg, Law Professor at the University of Denver School of Law (Denver, CO: November 30, 1990). 138

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packages that passed Congressional muster, the impact really would have been felt in the ensuing decades of the twentieth century. The jurisprudential interpretations would have borne immediate fruit, and would have inspired legislative initiatives that would have driven future adjudication. Table 6.1 Projected Members of the Supreme Court. The Supreme Court of the United States [1969-711: Chief Justice Archibald Cox Associate Justice Hugo L Black Associate Justice William 0. Douglas Associate Justice William Brennan Associate Justice John Harlan Associate Justice Potter Stewart Associate Justice Byron White Associate Justice Thurgood Marshall Associate Justice Burke Marshall The Supreme Court of the United States 1971: Chief Justice Archibald Cox Associate Justice William 0. Douglas Associate Justice William Brennan Associate Justice Potter Stewart Associate Justice Byron white Associate Justice Thurgood Marshall Associate Justice Burke Marshall Associate Justice David L. Bazelon Associate Justice John W. Douglas Equal Protection: Legal classifications are subject to a three-tier test administered by the Supreme Court The Equal Protection Clause of the Fourteenth Amendment is the legal primogenitor of the three-tier test. In the Slaughterhouse Cases. 83 U.S. 36. 21 L. Ed. 394 [18731 Justice Miller delivered the opinion of the Court, addressing the third clause of 1 of the Amendment: "We doubt very much whether any action of the state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this 139

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provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other. "408 The clarity of the Equal Protection Clause of the Fourteenth Amendment is found in its explicit language: "No State shall...deny to any person within its jurisdiction the equal protection of the laws. "409 The interpretation of that clause is left to the subjective judgment of five or more Justices sitting and agreeing with one another at any one time. The explicitness of the words "no state shall ... collides with into the ambiguity of what is legally pennissible under the term "equal protection." Classifications have been found constitutionally pennissible, even to the extent of allowing the 1942 internment of a racial minority. In other areas, some affirmative action programs designed to give advantage to specific gender, racial groups, or minorities, have been held non-violative of the Equal Protection clause. The current majority on the Court has found most affirmative action policies constitutionally impennissible. The interpretation of what equal protection means rests on the judicial craftsmanship of different Court majorities. The marriage of ambiguity to the precise language that "no state shall make or enforce any law ... has created the need for judicial interpretation, and consequently, the opportunity for judicial craftsmanship. The clause has been extended to the entire racial and gender spectrum. Blacks have found refuge beneath it; so have white people. Oriental races have found identification with it, but have failed to achieve their goal of protective penwnbrae from it. In F.S. Royster Guano Co. v. Virginia. 253 U.S. 412 [19201 the Court said: "The classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike." (italics added) From this case the rational basis test achieved a level of acceptance by the Court. The "fair and substantial" tenninology quickly fell into disfavor and was eliminated from the test. The Court found itself overturning too many legislative enactments. The rational basis formula evolved into its second generation requiring a much less rigid standard. Any law that was challenged was looked at in terms of 408See Butcher's Benevolent Association v. Crescent City Livestock Landing and Slaughterhouse Company, 83 U.S. 36, Justice Miller's opinion, at 39. 409United States Constitution, Article XIV, I. 140

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its ends, rather .than the means implemented by the legislative enactment If the goal of the legislative enactment was constitutional, then the law was assumed constitutional. It was within the "necessary and proper" purviews of legislatures to enact legislative measures. Once the Court found the action not repugnant to the Constitution, then it assumed the legislature had a rational objective for enacting the statute. The burden of proof then shifted to those challenging the enactment to prove there was not a "rational basis" for that particular law. The classification need not be perfect; it need not be a cure-all for the ills of society; it need only be a necessary and proper issuance with some rational state objective. The rational basis test proved inadequate to protect racial minorities from discriminatory enactments. There was a need to develop a second tier to address "suspect" classifications. In Strauder v. West Virginia. 100 U.S. 303 [18801 and Yick Wo v. Hopkins. 118 U.S. 356 [18861 the Court struck down racially discriminatory ordinances by applying the Fourteenth Amendment. Race, as a suspect classification, was in its judicially nascent state. Following the Japanese bombardment of Pearl Harbor, President Roosevelt issued a series of executive orders that interned Japanese nationals, and Japanese Americans, in War Relocation Centers. The orders also established a bureaucracy to administer those centers, and to create military law within their jurisdiction. A progression of cases reached the Supreme Court, and were aptly entitled the Japanese Cases. In Korematsu v. United States. 323 U.S. 214. 65 S. Ct. 193. 89 L. Ed. [19441 the Court developed the upper tier of its three-tier schematic. Justice Black, speaking for the majority, opined: "It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."410 (italics added) The strict scrutiny test resides at the opposite end of the legal spectrum from the rational basis test. When triggered, it assumes that the legal classification is inherently unconstitutional, and the state must show a "compelling interest" in developing that classification. A second trigger of the strict scrutiny test occurs 410See Korematsu v. United States, 323 U.S. 216. 141

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when there is a restriction of "fundamental freedom or interest" by a legislative enactment, or executive order. As we examine the right to privacy articulated in Roe v. Wade [ 1973] the ambiguity of what exactly a fundamental freedom is will illustrate the inherent tension created by judicial review within the rubric of judicial politics. Fundamental freedoms are largely considered to be the right to appeal a conviction; the right to interstate travel; voting; and the ability to redress grievances through the judicial process.411 When the strict scrutiny test is triggered, the state must show a compelling interest in regulating the fundamental freedom, and also show that there is no less restrictive means to achieve that interest. The a priori generalization, in terms of judicial review, is that invocation of the upper tier means the law will fall; but when the lower tier is triggered, the law will pass constitutional muster. This formula is not an infallible. In Korematsu, the executive orders imposing racial classifications withstood the strict scrutiny test.412 In McDonald v. Board of Election Commissioners. 394 U.S. 801 [19691 the Court was presented with an interesting issue. McDonald was being held in custody, without bail, awaiting trial on a murder charge. He asked for an absentee ballot since he was severally indisposed and unable to visit the polls. The Election Commission denied his request, determining that such ballots were to be provided only for voters who were medically incapacitated, who were absent from the county, who were attending a religious service that precluded their attendance at the polls, or who were serving as poll judges outside of their own precinct. Since McDonald did not fall under these criteria, he argued that denial of his voting rights was at issue. He argued that the strict scrutiny test should be implemented, and the state should be forced to show a compelling interest in denying him his ballot. The Court decided that the classifications involved did not include race, and therefore, did not trigger the suspect classification criterion. Secondly, the Court concluded, the appellant was not being denied the right to vote, but only an absentee ballot There was no indication of an attempt to disenfranchise McDonald; therefore, he was not being denied a fundamental right to vote, and any further classification would then be subject to the lower tier. Since the state law was designed to make access to the polls easier, and not to impede access, the mere fact McDonald did not 411Cushman, Cases In Constitutional Law, p. 467. 412'fhe irony of that decision is the tenninology of suspect classifications was established within stare decisis, but the appellant lost his case. 142

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receive an absentee ballot was not an indication of arbitrary discrimination. The Court felt the state was not required to solve all of the problems involved in absentee voting simply because they tried to solve some of them. Within the swirl of this reasoning, the Court allowed McDo'nald's voting rights to descend from strict scrutiny to the lowest tier. It held that the Illinois statute was a legislative attempt to remedy accessibility problems and, therefore, the classifications were not arbitrary, but were rational in advancing a state interest. The simple fact that McDonald did not fall into a qualifying category did not mean he was being denied the right to vote. In Reed v. Reed. 404 U.S. 71 [19711 the Court struck down for the first time a gender-based discriminatory law. It ruled that an Idaho statute was violative of the Equal Protection Clause because it prevented women from being administrators of an estate where a will was not present. A unanimous Court ruled that such arbitrary discrimination was exactly what the Fourteenth Amendment was designed to eliminate, and the state did not show a rational basis for the discrimination. Idaho claimed the statute had a rational relationship to its interest of reducing the caseload of its probate courts. Even though the Court issued a unanimous decision, it did not establish gender as a suspect category, nor did it evolve a middle-tier of scrutiny to be used when reviewing gender-based laws. Archibald Cox declares, "The purported ground for the decision is manifestly unacceptable. It may be unfair and unwise, but it is not irrational to provide a workable rule of thumb for resolving such disputes, provided that the rule may be expected to lead to a sound result in a sizable proportion of the cases to which it applies ... "413 His reasoning is that in the 1960s, in the state of Idaho, it would be rational to assume men had a great deal more experience than women in managing business and estates. In his opinion, the Court was openly applying the strict scrutiny test without admitting it.414 These statements do not, in themselves, prove that Cox would have voted to establish the gender classification as immediately suspect. His articulation on later cases does present evidence that he would have used his position as Chief Justice to place gender, and national origin, deep into the suspect category. 413ArchibaldCox,, The Court And The Constitution (Boston: Houghton Miffiin Company, 1987) p. 318. 414Ibid. 143

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In Frontiero v. Richardson. 411 U.S. 677 09731 the Court was again faced with a gender-based discriminatory law. Air Force Lieutenant Sharron Frontiero and her husband Joseph were denied automatic spousal allowance and rent-subsidy because federal legislation provided automatic allowance only for women married to male personnel. For Joseph to obtain spousal allowance he would have to demonstrate that more than half of his support came from his wife. He failed to do so, since he had a part-time job, and was attending college on his own G.I. educational allowance. The Frontieros sued, claiming violation of their Fifth Amendment rights, and the District Court dismissed their action. The Court heard their appeal. Led by Justice Brennan, a plurality that included Justices Douglas, White, and Marshall, opined that "classifications based upon sex, like classifications based upon race, alienage, and national origin, are inherently suspect and must therefore be subjected to strict judicial scrutiny."415 The Nixon appointees, Burger, Powell, Blackmun, and Rehnquist, refused to join the plurality calling for suspect classification, with Rehnquist opining the only dissent in the case. If one of the RFK appointments had ruled with the Brennan-led plurality, then gender, alienage, and national origin would have become enumerated suspect classifications. There would not have been a need to develop a middle-tier test, which today defies proper definition. The middle-tier is as muddied to legal scholars as the definition of obscenity is. No one is really sure what it means, to whom it applies, and exactly how it is to be applied. Justice Stewart was the swing vote on the issue of expanding suspect classifications. He felt that the Equal Rights Amendment (E.R.A.) would force gender into strict scrutiny, and since Congress had reported the amendment out, the states would surely ratify it. In his opinion, the E.R.A. would preclude any necessity for judicial craftsmanship in that area. Justice Powell, a good friend of Stewart's, also reasoned that the E.R.A. would be ratified and would create the suspect classification, thereby placing the issue in its proper place: the people (and the legislatures). Justice Stewart was torn between his two best friendsBrennan and Powell. He offered what Brennan considered a deal. If Brennan would not publish his plurality opinion expanding the suspect groupings, Stewart would concur, and at a later date, concur in expanding the criteria for suspect classifications. Brennan did not go for it. He published his 41Ssee Frontiero v. Richardson, 411 U.S., at 682. 144

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plurality opinion. Justices Stewart, Powell, Blackmun, and Burger concurred in overturning the law, but the three Nixon appointees made sure their opinions let it be known that they did not side with the plurality in expanding the suspect grouping. Rehnquist voted to uphold the law.416 The effect Archibald Cox, Burke Marshall, David Bazelon, and John Douglas would have had on this area of constitutional law cannot be understated. Cox is on record as having felt the strict scrutiny test was being effectively used in Reed, as well as in Frontiero. He also concurs in the result of the decision. He also points out that had the rational-basis test been utilized in Reed, the law would have withstood judicial review. 417 He describes the inadequacy of the middle-tier test as where "confusion reigns."418 It is logical to assume from those conclusions that he would have sided with the Brennan-led plurality and placed gender, alienage, and national origin, within the suspect classifications. He expresses discomfort with the middle tier; he expresses acceptance of expanding the upper tier; and he concurs in the judgment of the cases, though pointing out that the Court relied on a strict scrutiny rather than its announced rational interest scrutiny.419 David Bazelon's probable reasoning is less clear. There is little in his written opinions on which to base a conclusion regarding gender and national origin as criteria for strict scrutiny, in non-criminal cases. There is evidence he would have sided with Justice Brennan, based upon his belief in the principal of equality: "The equality principle follows logically from the reality principle. Once we acknowledge the squalid conditions that breed crime, we can tolerate inequities in the criminal process only by donning moral blinders. Of course, the ideal of equal justice before the law is as old as republic itself. But the reality principle requires us to recognize how far short we fall of the ideal. "420 Bazelon is speaking of criminal jurisprudence, but he also speaks of correcting economic inequities to get to the root of crime. Making the correlation of his stated opinions to application in this case is speculative. Bazelon's friendship with Brennan might be a contributing factor to opining with Justices William Douglas, Thurgood Marshall, White, and Brennan. Given his belief in correcting the socio-economic schematic 416Woodward, The Brethren: Insjde the Supreme Court, pp. 300-303. 417Cox, pp. 318-319. 418Ibid., p. 321. 419Ibid., pp. 318-321. 420David L. Bazelon, Authority (New York: Alfred A. Knopf, Inc., 1987) pp. 18-19. 145

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as a causeway to winning the war on crime, he might have been persuaded to rule with the plurality, knowing full well that the decision in this case would be used to support a similar ruling in future criminal cases that would come before the Court. If Justices Burke Marshall and John W. Douglas had joined Justices Brennan, William 0. Douglas, Thurgood Marshall, and Byron White, the decision in Frontiero would then have been unanimous. Given that set of circumstances, Justice Stewart might very well have concurred, in whole. The ramifications of placing gender, national origin, and alienage within the expressed purview of the strict scrutiny tier cannot be understated. This inclusion would have had a profound impact on American constitutional law, and consequently led to a new generation of opinions regarding the Equal Protection Clause of the Fourteenth Amendment. Presently, gender, national origin, and alienage classifications are housed within the middle, or what is commonly referred to as the intermediate tier. It is an unsettled area of constitutional law, constantly requiring interpretation from the Supreme Court Archibald Cox refers to the intermediate tier as a "middle ground where confusion reigns. "421 He articulates further that all three tests "have surrendered even the pretense of precision "422 The intermediate tier evolved because Justices Brennan, Marshall, Douglas, White, and eventually Justice Powell, with Justice Stewart concurring, felt that "fair and substantial" must be read back into the tier formula for evaluating gender classifications. It was decided that two tiers were not sufficient in deciding gender classifications, as well as the plethora of equal protection claims being asserted in the growing area of economic entitlements. Referring to the first two tiers, most of the classifications that came under judicial review within the upper tier were struck down; most of the classifications that were reviewed within the lower tier were upheld. Justice Thurgood Marshall made the same point regarding the use of the upper and lower tiers, in his dissent in San Antonio Independent School District v. Rodriguez. 411 U.S. I. 93 S. Ct. 1278 .36 L. Ed. 2d 16 [19731. He pointed out that the Court was using the lower tier to uphold laws, without regard to invidious discrimination or the importance of 421Cox, p. 321. 422Ibid. 146

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interests being -injured by the classification. He was joined in that dissent by Justice William 0. Douglas. In Craig v. Boren. 429 U.S. 190. 97 S. Ct. 451. 50 L. Ed. 2d 397 [19761 the Court reintroduced the "fair and substantial" guideline and labeled it the intermediate test. In this case, the Court applied it to a gender classification found in an Oklahoma statute that prohibited the sale of 3.2% beer to males under the age of twenty-one, and females under the age of eighteen. In Plyer v. Doe. 457 U.S. 303. 102 S. Ct. 2382. 72 L. Ed. 2d 786 [19821 the Court included alienage in the intermediate-tier envelope. It is of paramount importance to the equal protection methodology that had Archibald Cox, Burke Marshall, John Douglas, or David Bazelon ruled with the Brennan-led plurality in Frontiero, (1) gender, alienage, and national origin would have been elevated to the upper tier, and (2) there would not have been an intermediate tier. It is important to understand that the present intermediate tier is simply a reintroduction of what was originally part of the lowest tier: fair and substantial interest. 147

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CHAPTER SEVEN THE CONCLUSION Beginning in 1965, there was an attempt to elevate the Right to Privacy to a fundamental right. In Griswold v. Connecticut. 381 U.S. 479 [19651 the Court ruled that 53-32 and 54-196 of the General Statutes of Connecticut were unconstitutional. The laws were designed to prohibit the use of contraceptives and provided penalties for both the user and the prescribing doctor. Within the rubric of rights articulated in the Bill of Rights, Justice Douglas wrote that "specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance" and that "various guarantees create zones ofprivacy."423 The Court found that from the marital relationship there arose a "zone of privacy created by several fundamental constitutional guarantees" and that such a right to privacy was "older than the Bill of Rights, older than our political parties, older than our school system. "424 The key feature of this decision is that the Court found the right of privacy to be a fundamental right that could not be intruded upon by the state unless it could show a compelling interest in doing so. The flaw of the decision is two-fold. First of all, the right to privacy is not mentioned in the Constitution. And secondly, the zone of privacy that was created in (!riswold existed only in marital relationships. In his concurring opinion, Justice Goldberg found that fundamental rights are not limited to those expressly pronounced in the Bill of Rights, and that within the concept of ordered liberty there were other rights that emanated from the Ninth Amendment. He opined that the "language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight amendments. n425 423See JUSTICE Douglas' majority opinion in Griswold v. Connecticut, 381 U.S.,at 481. 4 2 4 JUSTICE Douglas' majority opinion in Griswold v. Connecticut, 381 U.S., at 483. 42SJUSTICE Goldberg's concurring opinion in Griswold v. Connecticut, 381 U.S., at 485.

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The majority on the Court was attempting to elevate the right to privacy in marital relationships to a fundamental right. The opinion in Griswold leads the observer to conclude there are numerous fundamental rights, including the right to assemble, the right to free speech, the right to be free from unreasonable search and seizure. However, the Court states that these are constitutional guarantees, but does not state that they are fundamental rights. This is a very important point to understand. The Court has kept the list of fundamental rights quite short: (1) the right to vote, (2) the right to redress of grievance through the judicial process, and (3) the right of interstate travet426 The rights of free speech, or press, or assembly, or any other guarantees found in the Bill of Rights, have not been given absolute status as fundamental rights. The Court has been unclear on what exactly a fundamental right is. The language of constitutional law carried forth over the past century states that fundamental freedoms are those rights "implicit in the concept of ordered liberty" and "those liberties that are deeply rooted in this Nation's history and tradition."427 Justice Cardozo announced the conception of "ordered liberty" in his majority opinion in Palko v. Connecticut. 302 U.S. 319 [19371 to distinguish between rights inherently fundamental, and those that are not The determination of fundamental rights as those based upon traditional liberties found in the nation's history comes from Justice Powell, and is echoed by Justice White, writing for the majority in the famous sodomy case of Bowers v. Hardwick. 478 U.S. 186 [19861. In Roe v. Wade. 410 U.S. 113 f19731 the Court delivered a monumental decision that women had the right to choose to have an abortion within their constitutional right to privacy under the liberty clause of the Fourteenth Amendment. The opinion of the Court, delivered by Justice Blackmun, made it clear the right to privacy was a fundamental right. 428 He wrote that only fundamental rights found within a concept of ordered liberty are included in the guarantee of personal privacy. He theri cited a lineage of decisions involving procreation, contraception, family relationships, child rearing and education; and the First, Fourth, Fifth, and Ninth Amendments, and the penumbrae of the Bill of 426Cushman, p. 466. 427Peltasen, p. 228. 428Albert P. Melone, Researching Constitutional Law (Glenview, IL: Scott, Foresman and Company, 1990) pp. 144-145. 149

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Rights. He used that nexus to develop the logic that there existed a right to privacy; and within that right there existed the protection against the state restrictions of a woman's right to choose to terminate her pregnancy. Justice Blackmun then produced a formula to determine when a state could show a compelling interest in regulating a woman's right of choice. The Court determined that the state could show a compelling interest beginning at the end of the first trimester, and then only when reasonably related to the protection of the health of the mother. Prior to the end of the first trimester, the state could not interpose itself between a physician and a pregnant woman with regulatory legislation. The Court determined that the state also has a compelling interest to regulate abortion at the point the fetus becomes viable. At this point, the state may proscribe abortion, providing the mother's life is not endangered. Justice Rehnquist issued a stinging rebuttal in his dissenting opinion. He could fmd little logic in the declaration that a right to privacy included the right to choose to have an abortion. He declared that the majority on the Court was engaging in judicial legislation with the prochimation of a trimester formula as the determinant for when the state could show a compelling interest in proscribing abortion. He argued that the Court was moving away from the Equal Protection Clause of the Fourteenth Amendment, and supplanting it with the Due Process Clause, in deciding when the state could show a compelling interest necessary to invoke its police power. He stated that the history of choice regarding terminating pregnancy was not fundamental. Justice Rehnquist relied on the number of state laws that existed proscribing abortion, and felt that this number indicated that there was not a history, or a tradition, that would make abortion a fundamental right. The importance of citing the sodomy case in relation to what the Court defines a fundamental right to be is Justice White's opinion, joined by four other Justices. That opinion determined that the lineage of decisions proclaiming a right to privacy did not include the right of homosexuals to engage in sodomy, nor did it prohibit states from enacting anti-sodomy laws. Another important feature of Justice White's opinion is his declaration that the Court must begin to determine what its limitations are in deciding policy for the nation. Justice White dissented in Roe, and has continued on a path of undermining the premise that privacy rights 150

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include a fundamental right to an abortion.429 The implication is that the right to privacy, articulated as a fundamental right, is undergoing a barrage of legal dianibe from a plurality on the Court, and will likely be diminished to a lower tier of scrutiny. The decisions of the Rehnquist Court show that a plurality of justices are willing to reduce the right to privacy to a level that does not require snict scrutiny.430 The plurality in Webster v. Re.productive Health Services. Et Al.. U.S.-. 109 S. Ct. 3040. 106 L. Ed. 2d 410 [19891 viewed a woman's right to decide to terminate pregnancy as being as fundamental as her right to drive a car.431 The judicial interpretation that the right to privacy is a fundamental right will undergo further transformation. Interpretation of this right will be subject to the likes of Justice Scalia, who has stated his desire to overrule Roe, whether it be in parts, or in total. If Justice Scalia can command respect for his opinion from four additional justices, the right to privacy as a fundamental freedom will be short lived. The interpretation of Webster is that viability is not the limit at which the state can show a compelling interest. The current majority on the Court feels it is within the rubric of state's police power to regulate and determine time, place, and manner restrictions prior to viability. This interpretation calls for a dismantling of the compelling interest paradigm brought forth in Roe. It also illustrates a reliance on precedent while simultaneously reversing the need to prove a compelling interest. The Supreme Court will allow a lower level of scrutiny to be used to determine the constitutionality of privacy classifications, and still label it snict scrutiny. If Justice Scalia can muster the votes, the Court will simply overrule Roe. If that action occurs, the decision in Griswold lies precariously in the balance. The Court could easily dovetail an overruling of Roe to include an overruling of Griswold. If that scenario, or a similar one, transpires, the underpinnings of the right to privacy as a fundamental right are left tattered and raw. The weakness of stare decisis is shown. Judicial interpretation is left to the five persons occupying a station for life, during times of good behavior. A majority on the Supreme Court can dictate public policy to a nation of over two-hundred and fifty million people. 429Laurence Tribe, Abortion: The Clash of Absolutes (New York: W.W. Norton and Company) p. 96. 430See Webster v. Reproductive Health Services, Et AI.,--U.S.---, 109 S. Ct. 3040, 106 L. Ed. 2d 410 [1989]. 431See Webster v. Reproductive Health Services, Et AI., 109 S. Ct., at 3055. 151

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If you are an unmarried woman seeking a public-funded abortion, you are in dire straits. If you are a zealot who seeks to outlaw abortions, publicly or privately funded, you are likely to announce that the Court should dictate public policy. The irony of the strict constructionist argument comes to full flower. The side of the fence you sit on determines whether you defend the Court's actions, or criticize it Judge Souter, in his confinnation hearings, declared to the chairman of the Senate Judiciary Committee, Senator Joseph Biden, that a fundamental zone of privacy existed between married persons. He did not extend that fundamental precept to non-married persons. When quizzed by Senator Biden, he would not accede to the interpretation that a zone of privacy extended to those outside the rubric of marriage. Given the ruling in Webster, we can project that there will be a systematic dismantling of the right to abortion. The judicial interpretation reducing the right to privacy to a maximum of a marital zone of privacy will be critical. The right to privacy will not to be enjoyed as broadly as was the case under the edicts of Roe and Griswold, and therefore will lose its fundamental status. Classifications that impede the exercise of fundamental rights have not automatically triggered the strict scrutiny test. The lack of precision in defining what a fundamental right is becomes paramount to this examination. The Justices who sit on the Court determine what exactly fundamental rights are, and, decide what constitutes a violation of those rights. When a full Court is present to make the decision on fundamental rights, a majority of only five is needed to determine the final outcome. The Warren Court, and the early Burger Court, advanced the right of privacy to fundamental status. The Rehnquist Court appears ready to reduce the right to privacy, i.e., the right to an abortion, to a zone existing only in the state of marriage. That is the maximum breadth the zone of privacy willoccupy. The eradication of privacy rights for unmarried persons reduces the fundamental nature of thatright It might be fundamentally inscribed into marital relationships, but will not enjoy a basic status among unmarried persons. There are sufficient indicia from Justice Scalia's comments that he feels abortion rights are not constitutionally guaranteed. When abortion rights are linked to the comments of Chief Justice Rehnquist, and Justices White and Kennedy, we may conclude that they are going to be subject to the restrictions of state legislatures. That decision returns the issue back to the stare decisis of Roe. The status of the right to privacy becomes 152 I

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endangered. If Roe is overturned, it is logical to assume Griswold will be diminished as a matter of precedent, and the right to privacy will be remodeled into something quite different. If Griswold is overruled, the right to privacy becomes an anecdote on the age of liberal jurisprudence. The concept that the Constitution is a living, breathing document is bequeathed to a society subject to the jurisprudential proclivities of a Court majority bent on reducing individual freedoms and rights. The wind will blow from an opposite direction. Many scholars consider this opposite camp radical while clothed in the robes of substantive due process. The nature of reversing trends requires judicial interpretivism, which requires substantive due process, no matter what label the observer chooses to use. Judicial interpretivism requires the Court to interpret law. If stare decisis is observed, the right to privacy will be maintained. If Griswold and Roe are overturned, substantive due process will be active, but again, from a different direction. Justice Scalia practices substantive due process, though he may choose to call it strict construction of the Constitution. Chief Justice Rehnquist has used damages and the political questions doctrine to deny standing when the issue is repugnant to his ideals. That type of action is substantive due process. In other words, it is judicial activism practiced from the other side of the aisle. If Archibald Cox, Burke Marshall, David Bazelon, and John Douglas were serving on the Court, the right of privacy would be entrenched as a fundamental right, enjoyed by non-married persons. Other substantial constitutional guarantees, including those of the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments, would have been placed within the rubric of fundamental rights. These actions would have inculcated society with judicial values, creating a bedrock of stare decisis that future Court majorities would have to respect. The judicial acumen enjoyed by a Court under the leadership of Archibald Cox, and including such stalwarts as William Brennan, William 0. Douglas, Thurgood Marshall, Burke Marshall, David Bazelon, and John Douglas, would have rendered precise and articulate decisions. This craftsmanship would have made it difficult for a future Court majority antagonistic to those decisions, to dislodge them from precedent. In United States v. Leon. 468 U.S. 897 [19841 the Court announced a "good faith" exception to the exclusionary rule. The exclusionary rule was developed from a legacy of cases including Weeks v. United States. 232 U.S. 383 153

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[19141, Wolf v. Colorado. 338 U.S. 25 [19491, and Mapp v. Ohio. 367 U.S. 643 [19611 (which overruled Wolf). Succinctly, the exclusionary rule forbids the use of unlawfully obtained evidence in a criminal prosecution. It was designed to improve police procedures, and to help make police agencies law abiding, as per the Fourth, Fifth, and Fourteenth Amendments. In Leon, the Court announced a good faith exception to the exclusionary rule. The majority, led by Justice White, said that a balancing test must be administered weighing the costs and benefits of suppressing evidence on which the prosecution is relying for its case-in-chief. He wrote that when an officer uses good faith in obtaining evidence that under the exclusionary rule would be inadmissible, the Court should examine that aspect, and determine its place of admissibility, if it is part of the prosecution's case-in-chief. Justices Brennan, Marshall, and Stevens issued strong dissents in this case. If Archibald Cox and David Bazelon had been on the Court, the case would have been decided differently. David Bazelon has written that the deterrent effect of the exclusionary rule cannot be displaced by exigency of a criminal conviction. He is unmoved by the argument that alteration of criminal procedures established by Weeks, Mapp, and Miranda should give way to the reformation announced in Leon. He labels the thought of such reformation as a way of deterring crime the work of "extemalists" who "travel a superhighway leading to a cowpath ... 432 Serving as Justice Bazelon, he undoubtedly would have joined Justice Brennan and Marshall in their stinging dissent in Leon. Archibald Cox has discussed the exclusionary rule in great detail. In his work entitled The Court and the Constitution, he argues that the rule is developed from the original intent of the Framers to have fair trials. Cox points out in his chapter entitled "Constitutional Adjudication" that American society has developed a great deal from the early days of the republic, and judicial interpretation must keep pace. If judicial craftsmanship is based upon the Constitutional principles that were present from the start, it is an essential part of the American system of justice.433 He feels the exclusionary rule is sound policy, is workable, and is within the rubric of the Fourth and Fourteenth Amendments. 432Bazelon, p. 22. 433Cox, p. 249. 154

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Cox points out that the Fourth Amendment: "was not written solely for ordinary times, but for periods of intense ferment, when those who control the apparatus of government fear loss of power, and political liberties are at stake. In times of stress only constitutional safeguards, buttressed by effective sanctions, keep the Gestapo and the SS troops from the dissident's door ... 434 Those words were written in 1987, three years after Leon was decided. Archibald Cox understands the necessity to adapt constitutional principles to the circumstances and re.alities of the times. His writings show that he understands the "plain view" rule and its limitations. He is equally clear about declaring a place in present jurisprudence for the exclusionary rule, within the Fourth and Fourteenth Amendments. Coupling this argument with his statement that the Fourth Amendment was meant for extraordinary times, it is logical to conclude that he would be in favor of continuing the exclusionary rule when weighed opposite the so-called good faith efforts of an investigating officer. He would have been the fifth vote, thereby creating a majority, which would have sustained the exclusionary rule when juxtaposed against the good faith exception announced by the Court in Leon.435 There are other areas into which the Cox Court would have ventured The issue of whether or not obscenity can be defined in accordance with the First Amendment guarantees would have been ripe. In Paris Adult Theater I v. Slaton. 413 U.S. 49 [19731 the Court was one vote short of declaring the First and Fourteenth Amendments superior to blanket declarations that obscene materials were illegal, because Court definitions of obscenity were unconstitutionally vague, and would always be so. The dissenting opinion, written by Justice Brennan, is most noteworthy. Justice Brennan wrote the original obscenity opinion in Roth v. United States. 354 U.S. 476 [19571. Where Archibald Cox, Burke Marshall, David Bazelon, and John Douglas stand on this issue is unclear. Cox has discussed the First Amendment at seminars, and in his writings. He is critical of the ambiguity with which the Court has ruled regarding First Amendment rights, but he is very clear in stating that those rights under the amendment are not absolute.436 He understands the history of the amendment, with its roots in colonial America, 434Ibid., p. 246. 435Jt should be noted that Justice Stevens was appointed in 1975. 436Cox, p. 214. 155

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and has consulted the writings of First Amendment's author, James Madison. Cox appears to equate the First Amendment with political freedom, and the freedom to criticize governmental actions. He also builds a contrast between an active citizenry exercising its First Amendment rights and a society that allows government to infringe on those rights. He postulates that without the First Amendment there is little likelihood government would allow itself to be criticized. He points out that freedom of speech and press, and the right to assemble, are fundamental tools in building and asserting political power.437 He also criticizes the American populace for not using the legislative branch to remedy zealous governmental officials who cite national security every time the press questions their actions. He points out that the Freedom of Information Act was a noble effort by the people, through their elected representatives, to assert their freedoms, under the First Amendment. Whether this translates into a belief that obscenity should be subject to legislative measures, or the control of the Miller Test, which gives authority to the community in determining the illegality of a publication, is unclear. Cox is in favor of non violent civil disobedience as a form of speech, and assembly.438 In all of his writings used as research in this examination, Cox examines the issue of obscenity only once. In his book The Role of the Supreme Court in American Government. he addresses the content of the obscenity decisions, but does not develop a critique. He makes no conclusions about their sensibility, nor does he adhere to their premise. The only criticism he launches is that the majority is engaging in a weak attempt at judicial activism in restricting First Amendment freedoms. Because Cox has not written a definitive treatise on the issue of obscenity, we may assume he would listen very carefully to the articulations of Justice Brennan, especially, because it was Brennan who wrote the first obscenity decision of the Court. Cox is content with the activism of the Court in applying restrictions on governmental intrusions into First Amendment freedoms. He believes the language of the Amendment requires the Court to defend those liberties.439 I conclude that Cox would have joined Justice Brennan in determining that a tenable definition of 437Ibid, p. 212. 438see the chapter, "Direct Action And Civil Disobedience", in the work Cjvjl Rights. the Constitution. and the Courts by Archibald Cox, Mark DeWolfe Howe, and J.R. Wiggins (Cambridge, MA: Harvard University Press, 1967) pp. 2-29. 4 39 Archibald Cox, The Role of the Supreme Coun In American Government (New York: Oxford University Press, 1976) pp. 48-51. 156

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obscenity is unreachable by the Court when weighed against the freedoms articulated in the First Amendment. The argument of allowing adults freedom of choice in what they read or view in the privacy of their homes, without impugning the integrity of others, and with respect for the rights of minors, would sit well with Archibald Cox. This inference provides Justice Brennan with the fifth vote necessary to declare that the definition of obscenity is unconstitutionally vague and is repugnant to the freedoms announced in the First Amendment of the Constitution. Equally intriguing is the question of how this Court would have ruled on death penalty cases, affirmative action cases, desegregation cases, and right to privacy cases. This Court would have had an immense impact on clarifying what the fundamental rights are. David Bazelon argues clearly that economic opportunity is fundamental to fighting crime. He is equally clear arguing that education is fundamental to the actualization of economic freedom. It is reasonable to state he would have agreed with Justice Thurgood Marshall in elevating education and economic classifications to fundamental rights. Archibald Cox's critique of the middle tier is reason enough to conclude that he would have favored clarifying what the fundamental rights are, and where they fall in the equal protection scheme. Gender and economic classifications would have been adjudicated with precision and clarity. The scholarship of Cox, combined with the experience of Justices William 0. Douglas, William Brennan, Thurgood Marshall, and David Bazelon, would have made the decisions precise. The right to privacy would have been clearly defmed. It would have taken the stance of a fundamental right. Professor Henry J. Abraham states that strict scrutiny is triggered when classifications are made regarding the right to vote, and interstate travel. 440 He also states that fundamental freedoms include (1) due process of law in criminal matters; (2) one person, one-vote principles regarding suffrage and legislative reapportionment; (3) egalitarian concerns in the realms of race, sex, age, national origin, and alienage; (4) freedom of religion and separation of church and state; and (5) freedom of expression.441 Charles Ducat writes that strict serutiny is applied when classifications are made regarding the imposition of the right to vote, and to 440Henry J.Abraham, The Judiciary: The Supreme Court In The Governmental Process (Boston, MA: Allyn and Bacon) pp. 57-58. 441Ibid., p. 48. 157

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interstate travel.442 The Cox Court would have made clear which rights were fundamental. It would have been able to articulate in precise language that fundamental rights were those found in the Constitution, and the Bill of Rights, and the other Amendments. It would have declared there are unenumerated freedoms found under the rubric of the Ninth Amendment, including the right to privacy. It would have created a bedrock of stare decisis for precedent that would have guided the American jurisprudential system into a new sense of law, based upon the Constitution and favoring individual freedom, equal opportunity, and equal protection of the law. The nexus between judicial interpretation and legislative action could have launched American society into a truly Great Society. Had the tragedy in Los Angeles not occurred, and had Robert F. Kennedy become the thirty-seventh president of the United States, American history would be decidedly different The effect a Robert F. Kennedy administration would have had on American constitutional law would have been enduring, and we would be a more secure and free society. Equality under the law and equal opportunities would have been affirmatively adjudicated, and executive authority would have been extended to see that the edicts of the Court were implemented and followed as a matter of public policy. The legacy that the Cox Court would have had on the legislative branch requires an exhaustive examination equal to the one in this thesis, and is food for additional research. 442Ducat, p. 634. 158

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