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tv   James Simon Eisenhower vs. Warren  CSPAN  August 24, 2018 1:39am-3:00am EDT

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[inaudible conversations]
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>> it's great to see everyone here today thank you for joining us and the vice president for institutional advancement here at the law school law school and one of many people here who is lucky enough to have prof. professor simon here as a student.f trustes her to be an incredibly dedicated hard of trustees not onlyery working hard behind the scenes but also to show support and a member of the class of 1981 a founding partner with wide
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ranging commercial practice so r we might hear about that. we will get the evening kicked off. [applause] i'm used to having a little stool here good evening on the trtees, behalf of the board of trusteesn welcome you to the conversationt eisenhower versus warren the battle civil-rights and liberty those of you who have the good fortune to attend professor simon's classes on the supremeut court the surf self createdegal legal urban studies those of you
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who had the privilege working withho him as his research assistance and i know that is for me.pellin and to help shape decades of legal fingers to influence so hv many students and always one thing in common a better sense of community a more insightful approach to the ongoing study of law and the appreciation for an education well done. professor simon and contribution
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to our legal community and i welcome you to the podium and home to the new york library. [applause]l for >> we are incredibly grateful for the work you do on the board of trustees and your immense contributions of the alumnus ofa this institution you are here every few days and it's great. r we are so proud of everything you have accomplished in the role model that you serve as for so many law students.
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with their important and timely work eisenhower that someone we all can agree on -- agree is a new york law school institutiony simon who served as dean from 83 through 1992, jim is an extraordinary scholar and authom whose impact continues to be felt throughout these walls were most important contributors tous understanding the history of the supreme to court and with a cenl role.e and unable to haveicy and constitutional spirits.is and then to examine theent anduc relationship the chief justice and one of the most pivotal decisions in history and that a
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dismantle and then with accelerated efforts with the remaining racist and unequal institution continued even after the end of the civil war. and the dynamic betweenarren fmm eisenhower and chief justice warren from different perspectives. respect and that deeply researchedcomeyi narrative with the what both mer and why they chose their strategy and made their decisions and their distinct philosophicall approaches of desegregation.ications. most notably the atlantic and wall street journal. looking at the relationshipp betw between the judicial leaders who demonstrate a unique talent to e
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flush out the narrative with a historical context to maintain accurate and humanizing portraits of a protagonist.accoa people haven't twice named in the notable book club and to implement review -- reviews list across thein country we have bed incredibly fortunate with this unparalleled knowledge of constitutional history and that is why they have engaged numerous law school students eder the years.ents all mov and they all moved to impactfulg careers with government, courts, private practice, international business.
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and to appreciate that ownow h opportunity to work with you and mentor you. opportunity [applause] >> i know i know for his research assistant but to come only at the appreciation of the dedication into liberation and tireless approach he takes tocht all of his scholarship and as i i said in the beginning to say he is new york law school always one of the most popular professors when it was so popular was oversubscribed and at the end of every semester
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take down to washington d.c.s with the q&a with the sitting justice to bring the court to life for students to make it more accessible and in 2012i was admitted to the supreme court bar with justice kagan a truly unforgettable experience. profer jim was one of the primary professors for so manynyyears. s talking back to his days covering the supreme court and the love of writing is reflected in his books one recent measures
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is scholarship established in his honor just late last year thanks for the generosity for the class of 77 graduate, i shut this i shut this off by the wayp now the scholarship fund.o working overseas in monte carlo he wanted to be here but he didn't try but he sends regards and is proud. in speaking for myself i returned grateful for yournd gue support new york law school as we know it in is modern day because of your extraordinarydit work as a member of the faculty especially at a time when
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crossroads was confronted and as they often are and nobody has. forgotten and we are appreciative of that and i would say i would say that i was particularly will say i apprecie started to inquire a number ofit important elements to beanso effective in for that i amam grateful so we ou a huge debt of gratitude and am very proud ofro theud work but also to recognize we are fortunate as a renownedre supreme court historian andbersl exceptional faculty member who ck g beg jim interviewing a pera
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unpack is booked to facilitate engaging conversation in fact ae one of his recruits to the lawaf school faculty members that hebo brought to help build the extraordinary faculty that has helped to shape generations of law students making an enormoust impact with the history of the federal judiciary also to be familiar with jim's work offering a definitivef retrospective for the 57th volume of the new york law school law review as an expert e on the supreme court listening to those unique dynamics so wite that i ask them i ask them to come forward and i welcome all of you 17.
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[applause] >> is your son? see how well we work together? there we go. jim it is a great privilege to e talk to you in front of everybody because your book is graceful and well written well-written and well researched and informative and i would lovt
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to find some things to criticize but i couldn't find anything. star off so i will start by asking some general questions ande general e are supposed to talk about 40 anutes and then leave about 20d minutes for questions and answers from the audience i will start by p asking why did youu write this particular book? >> a couple of reasons. most of which i write are interesting and complicated and unusually gifted president and chief justice. i started with presidentjeffersi jefferson anefd chief justice marshall and i thought both andt eisenhower and boren were exceptional leaders the most reve red american leaders in the.
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20th century and they were complicated which is alsoca interesting. interesti the issues that they dealt with and ultimately disagreed about a very important. civil rights and civil liberties of unpopular minorities in the 50s and 60s and continue to be important today.team was those are the things i was looking at the leaders i was looking i was looking at. i don't like to write abouty people that are not interesting or exceptional. >> what was their relationship before eisenhower became president or chief justice? they were rivals potentially.
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pres >> warren had run for president in 1952 he was the dark horse ay was a three term governor and popular at that and had run on the republican ticket in 1948 and fully expected to be vice president of the united states when truman stunned the nation with his upsetis.upet. the fact is that eisenhower did not know him well. but what caught eisenhower's attention is he consideredn if h himself a moderate republican in 1952 and there is a very vicious fight on the floor at the republican convention between
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the delegate for robert taft who was the conservative candidate publica of the repunblican party and those of eisenhower on the moren moderate wing and at a critical time during the convention warren let his delegates vote that pushed the nomination to eisenhower. he met with lauren afterwards and today saw it i would what they considered their moderate values and warren campaign for eisenhower but they did not know each other well. some similities >> they came from fairly different backgrounds but had some similarities and differences? >> they both came from pretty
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difficult backgrounds that, eisenhower grew up in kansas ane was one of five brothers' fathea wasn't successful but worked as a mechanic and in fact eisenhower at one point didn't have to pay to get in that but warren grew up in bakersfieldrn. californiahi his father was southern pacific who saved just enough to send earl warren to college very bright but not inry particular good students good pr
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eisenhower spent more time at the poker tables and library very good poker player but at the university of california hea was a good student both were undergrads he didn't find the mod taught at berkeley it wasn't practical enough he wanted to practice the law he didn't care for the case method that you all love so much. the so in spitree of their similarities there were some real differences if we want toto talk about brown andalk at civil desegregation and civil liberties. as
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they approach these very differently so this is the first part of the question to what extent do you see the individual backgrounds or personalities playing into those differences that they subsequently have ony those policy issues?ir >> it's hard to draw a clearsenr generalization in a segregated society in kansas we are segrege military men. nonetheless was more sensitive than most of his generation to r discrimination and with that world sllied w commander certainly din that for pragmatic reasons the african-american soldiers in
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combat and he pushed for that. after the war he testified before a senate committee is ate still not ready to say they should be segregated so they said with they thought it should w be so when he became president of the unitedhe states to comple the segregation of the military civil rights in their early careers seen as a moderate governor and popular in progressive civil rights is not
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at the top of his list. when eisenhower became president and moran became chief justice nobody knew how he wouldf approach decision that was already argued one.einhower c >> is it fair to say eisenhower changed less as opposed to warae in because after all he had done some racistt retty thing when he was in california during the war andwhl changed a lot more? be like that be like that is a good insight.s
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from the west coast through the internment camps. it was a tragic chapter in american history and he was quite outspoken and supporting that policy. he was also a very outspoken anti-communist when he was governor of california. very close with jay edgar hoover. they collaborated on who might be a suspect did subversive and so on. and indeed, in his first year or so is chief justice, he had a fairly conservative record in many ways. so, what changed for ask, for the nation and for warren was brown v. board of education, it seems to me.
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when he had his first conference with the justices, the new chief justice, he was dealing with some extremely formidable intellects on that court. felix frankfurter and hugo black and robert jackson and william douglas who were all superior legal minds. value is not considered superior. he was on that corner with a number of justices who came and indeed had voted to retain segregation in public schools. so at the conference, he speaks
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first. the only way we can justify the segregation of the public schools is to say that african-americans are inferior, that there is no other rationale for justifying the segregation of the races in the public schools. and not a single justice can say that they are inferior in that respect. so he basically threw down the gauntlet. from then on, his conviction on fighting racial discrimination just got stronger and stronger. >> are you saying he profoundly changed before he got on the
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court? >> he was moving -- he was our equal economic opportunity, but he was not outspoken about it when he was governor of california. it was not a centerpiece of his policy. i think brown was the decision that really he might say radicalize our warrant. i was going to say, you asked about eisenhower. eisenhower never had that defining moment i would say. he did a lot of things that we can talk about in terms of trying to bring equal protection to african-americans. but she never had that kind of defining moment that war ended. >> why did eisenhower pick
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warren? >> everybody thinks, those of you who may remember eisenhower's press conferences during the 1950s, they were very difficult to follow. sometimes the subjects in the burbs didn't really go together that well. but he knew exactly what he was doing. he was very smart and he was very calculating and he, he had given it quite a bit of thought. and he argued as one of his brothers. he had an older brother named anchor. edgar eisenhower who was a lawyer in tacoma, washington. they were afraid the rumors had been out that he was going to appoint a row boring because it campaigned for him.
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he said you know, you really shouldn't appoint a politician and you certainly shouldn't appoint a governor. eisenhower went right back and he said, you know, i disagree with you. what we need is somebody to lead the supreme court and sometimes a politician at the highest level with integrity and experience and law might be the very best candidate. and he knew exactly what he thought he was getting in or warren. a leader and someone with legal experience. he argued with somebody else that was actually a professor from columbia who said you really should get someone with judicial ask. it's. eisenhower came right back
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inside, well, john marshall didn't have judicial experience. and he did okay. so my point is eisenhower is a very thoughtful, really, really smart guy. >> in that context, let me jump in with this question. sort of leaping ahead to cemex 10. you mentioned some of justices on the court. powerful individual justices who also did not have prior judicial experience. one of the things that's happened in the last 30, 40 years that almost every nominee to the supreme court now comes from the lower courts. ..
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>> after he appointed warren, who o judicial experience, every other appointee had lower court experience. >> brennan and -- >> harlan. >> yeah. >> brennan. >> yeah. >> whitaker. and stuart. >> of course, actually whitaker, i was in high school with his son, and that's not my proudest memory going, having a connection with a supreme court justice, but that's a different story. >> yeah. [laughter] whitaker had a very unhappy time on the court, and he, he had
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no -- he was not a significant justice. and, ultimately, retired in poor health. >> let me jump back to eisenhower and brown. we talked a little about warren and how you said he had, went through a major change. eisenhower seemed to have changed less and had a very back and forth, uneven relationship with brown and desegregation, etc., so that at least i find it harder to pin down a clear view of eisenhower on that issue. what's your interpretation of eisenhower and his reaction to brown and the desegregation problem? >> well, i think warren was terribly disappointed and ultimately angry that eisenhower, after the court announced the brown decision in may of 1954, eisenhower held a press conference. he held a lot of press conferences. he was asked about brown.
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and be all that he would say was this is the law, and it should be obeyed. he didn't say this is right. he said, it's the law, and it should be obeyed, and he said nothing more than that. and warren was very disappointed in that. and he continueded to say that. -- continued to say that. after brown ii, what we call brown ii, the implementation decision of brown came down, eisenhower was asked, and he said this is the law, and it should be obeyed. now, in private he had a good deal more to say, fortunately. his letters and his diaries are quite revealing. he worried that there would be violation in the south -- violence in the south, and he did not want to in any way encourage it, so he didn't, he didn't want to say that it was
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morally correct -- in a way, at least that's what his grandson told me, david eisenhauer. some of you remember david eisenhauer. i interviewed him for this book. and david said, well, why -- he wouldn't want to say, well, brown is morally correct. segregated schools are immoral because it would be cutting off a whole branch of the country at the time, and he did not want to do that. he also worried that if it became violent, that what the southern governors would do would be to close the public schools. and he thought that would be a tragedy. and some of them did anyway. so that he was not, as iokzv sa, he's aç very thoughtful, calculating president, and it was his view that the court should go very cautiously and
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that he never wanted to abandon the southern states. and he made that very clear. >> suppose we argue that, in fact, he was way too cautious. i mean, one of the things i was struck about in your book was the way he changed the republican platform in 1956. >> right. >> which one could argue was really a step backward. and there were the racial comments. you open the book with a stunning story about his racial attitudes. >> well, that's a very controversial story which warren tells in his memoirs and which, which warren is invited to a stag dinner at the white house. in february of 1954. and he is seated next to eisenhower, the president.
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and according to warren, eisenhower regaled him -- not regaled him, but talked about how one of his guests, who happened to be john w. davis, was a great lawyer who had just argued, just argued two months earlier brown v. board of education on behalf of the state of south carolina, pleading with the court nod to desegregation -- not to desegregate. and so according to warren, eisenhower said that he's a great man. and, first of all, warren was very uncomfortable with john w. davis being at that stag dinner. and, of course, thurgood marshall was not at that stag dinner, the chief attorney for the naacp. but warren -- eisenhower, in warren's view, compounded his, the unethical judgment by taking warren aside when they went as
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men in the 1950s at stag dinners do, went more their brandy and cigars, and said that, you know, these, these white parents are not so bad. they just don't want their little girls to go to school with overgrown black boys. very racist comment. and, in fact, one of warren's biographers said he didn't really say black boys, he said black bucks, which is even worse. so the question is at the time he said this, and this is while the court was deliberating on brown v. board of education, was he trying to lobby warren? i'm not so sure, but he should have known not to have engaged in this at all. did he actually say that? well, nobody was a party to that
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conversation except warren and eisenhower. but warren, warren had a reputation of being a very, a man of great honesty and integrity. so i think he probably said something like that. and i think he did have residual feelings of racism even when he was president. he didn't have any -- he used to have a lot of southern white senators as buddies, and he didn't have too many black leaders coming to the white house. in fact, martin luther king and roy wilkins, who was then the head of the naacp, pleaded with him, first of all, to come south and try to tamp down the violence after brown v. board. and not only would he not come, but he didn't meet with them for two years. now, he final hi did meet with them -- finally did meet with
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them. in eisenhower's defense, eisenhower completed the desegregation of the military, he forcefully enforced brown in the district of columbia, he also desegregated military facilities in the south and military schools in the south. so the difference is, in my view, that he had all the power to do that as president of the united states. he worried that he was going to come to a clash with the southern states in enforcing brown v. board, and that's why i think he went a little quiet on it. and, in my opinion, much too quiet on it. he was a very, very popular president and had the moral authority of the presidency and his moral authority. people really believed in eisenhower. >> did he ever reflect that if
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he had acted much more strongly and quickly at the very beginning of brown that, in fact, it could have obviated a lot of the southern resistance? which, of course, leads up in a sense to little rock which i want to ask you about that. i'm sure everyone wants to hear about that too where he finally did have to actually use the 101st airborne division, among other units. >> right. >> did he ever think that maybe he acted too slowly? >> i never -- not that i know of. not in his private thoughts that were written down. i think he felt that it was the cautious way to go. he once said, and this is in the book as well, he told his attorney general, william rogers, who succeeded herbert brownehl as attorney general, and rogers was more liberal on civil rights issues than eisenhower was.
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rogers submitted a draft of a speech he was going to give saying that the federal government, the eisenhower administration is fully behind brown v. board, and we're going to see real progress very quickly. and eisenhower tonedded it down -- toned it town. he said, you know, we may not see full desegregation for years, maybe decades. >> how did the desegregation battle play into mccarthyism and the anti-communist battle? because that was another major area -- well, it was a general, a huge area, and it was an area where they had very significant disagreements. >> well, i think that they were somewhat separate. i mean, they were quite separate. but mccarthy, mccarthy -- the armey-mccarthy hearings
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took place roughly around the time that brown v. board of education came down. eisenhower loathed mccarthy. but he never publicly rebuked him. and part of that was his approach to his, both as a military leader and as a president. he never rebuked people in public. if he had something to say, he would say it in private. and he said that's the way -- you do not want to get into an argument publicly with somebody like that. now, there's another reason for that, that he never rebuked mccarthy publicly, i think, and that is that mccarthy -- the republicans had a one-vote majority in the senate in 1954, and mccarthy was still quite powerful. and he, it was prominently known
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that he really influenced and may have controlled as many as 10 to 12 of the senators. and he wanted to keep his majority. so that would be another reason not to go after mccarthy. but he did, in private he did. there's a book, a very good book called "the hidden -- talking about how eisenhower worked behind the scenes, always behind the scenes to get his way. for example, he expressed a very broad view of executive privilege. such a broad view that he denied mccarthy the subpoena power to go after members of the executive branch of the government.
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welk mccarthy -- well, mccarthy needed his hearings, and he needed to bring all these people from the executive branch and subpoena documents from the executive branch. and eisenhower absolutely refused to do it. so it was -- "the hidden hand presidency," it was called, of eisenhower. and this is one of the things he did. the other thing he did, he made it a show of welcoming to the white house a number of mccarthy's critics. edward r. murrow of cbs was welcomed to the white house shortly after he had taken on mccarthy on television. joseph welch, who was the lawyer for the army in the army mccarthy hearings, was welcomed to the white house shortly after the hearings was over. welch was a great national hero
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at that time. so he knew what he was doing, as i say. warren himself, as i said earlier, was a very outspoken anti-communist when he was a governor of california. and even in his first couple of terms as chief justice, he was pretty conservative. he was not out there defending the constitutional rights of suspected sub verse i haves. -- subversives. now, that changed quite dramatically in the late 1950s. >> in part, i suppose, it changed because there was a big difference in the power mccarthy had in '57, '58 compared to '52 -- >> absolutely. -- >> '53. but we've talked about the similarities between the two men and their differences, their differences on issues. to what extent were their differences a result of their institutional roles? because, obviously, the president is institutionally totally different than the chief justice. to what extent does that explain
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their differences? >> i think it has a lot to do with their different roles and their different approaches. in the book that i wrote, in the epigraph i quote eisenhower who was arguing with an old military buddy of his who had said that abraham lincoln was a radical. and eisenhower came back, and eisenhower, by the way, was very well read. and he said everything i've read about abraham lincoln suggests to me that he was one of the great compromisers in presidential history, that he, he came right down the middle, and he got pressure from both sides. and warren -- so that was eisenhower's quote. and then i juxtaposed that with warren's quote from his, from his memoirs in which according to warren he had this conversation with eisenhower after he had retired as
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president. eisenhower by then had been known to be quite critical of warren and the warren court decisions, and he said -- and warren says, well, you just really don't understandment you see, when -- you're a politician. you can compromise. he says, but when you're a justice of the supreme court or you're chief justice of the supreme court, you're obligated to rule on principle. and you can't do a little at a time. you can't do a little of the principle at a time. you have to do it all at once. and that was earl warren. >> well, what about the fact -- suppose i said, yeah, but they never actually explicitly overruled plessy v. ferguson. i mean, do supreme court justices really -- >> well -- >> -- only give a little principle? >> well, i think my reading of brown v. board basically, and we
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can have our constitutional law scholarly constitution on this, but my reading of it is that it renderedded plessy v. ferguson a nullity, absolutely. >> what about your mention of lincoln raises another issue, and as i'm sure everyone knows, you've written several books about presidents and chief justices, one of whom was lincoln and tawny, which was another superb book. >> that's right. >> but conferring there's jefferson and -- considering there's jefferson and marshall and lincoln andny, and then you wrote about fdr and hughes and now this book, so let's step back and let me ask a broader question. and that is, to what extent do you see -- what conclusions would you draw about the relationship between the judiciary and the executive? and particularly the way that relationship has changed, if it has. i think it has, but maybe you don't, changed over the years.
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>> well, it will depend on if we're talking about presidents and chief justices or the presidents and the courts, it depends on the presidents and the particular courts you're talking about. i mean, i said that warren was terribly disappointed in eisenhower as president. well, i can tell you that thomas jefferson was terribly disappointed in john marshall as chief justice too. and vice versa. that is, marshall loathed jefferson. i mean, it really helped my book a lot -- [laughter] >> lincoln and tawny weren't real close either. >> they weren't. but, i mean, marshall and jefferson were second cousins, and -- but really they hated each other on principle. they really -- it wasn't personalty at all, it was principle. they'd had very different views of the role of the federal government and so on.
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so, as you say, lincoln and tawny didn't get along too well. they really didn't know each other very well. but lincoln came after tawny in the famous lincoln/douglass debates on thebred scott decision -- on the dred scott decision. and fdr and hughes were not personally enemies at all. they knew each other when they were both politicians in new york. and they had respect for each other. but, of course, fdr didn't like any new deal court decisions, and he came after the court. not necessarily after, not necessarily after hughes. and then you have, you have eisenhower and warren. i guess i think that the way the framers have set up our constitution with the separation of powers there's sort of
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built-in tension there. and it's probably healthy for the most part. and when, when a president -- a strong president, and all the presidents i've written about have been very strong presidents -- feel that the court which is, of course, an independent branch of the government is undermining or in some way obstructing what they see as the public interest, the presidents can come after them. and one way or another, and or certainly privately they do, thankfully, because they write their letters, and i get to read them and write about them. but i think that's probably healthy for the most part. >> let me ask, we're running out of time, and we certainly want to leave time for questions from the audience, so let me end by asking two semi-unfair questions. after all, i'm a law professor, and so i get to ask unfair questions to people lots of times. eisenhower's not only a military
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leader, but during his presidency he faced a number of military crises. there was the korean war, the opportunity which he rejected to get involved in vietnam even using nuclear weapons, the suez crisis and then advising john kennedy about the cuban missile crisis. so my unfair question to you is what would you think eisenhower would say and do today about syria? >> well, i think eisenhower, again, he was, he was at his most decisive in foreign affairs. and i show that in -- i think i show that in the book. i mean, he was the one who brought the north koreans and the chinese to the table to finally get an arm the cities in korea -- armistice in korea, and he did it by after he became president he bulked up the forces in korea, and he let it
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be known that he was going to send an atom thetic bomb -- atomic bomb to one of islands in the south pacific. and, by bollly, within a couple of months they were at the negotiating table. they, those talks had been broken off, and he got them back, and they had the armistice. in 1956, and i write about this also, the suez crisis when britain, france and israel invaded egypt and basically took over the suez canal and they didn't tell eisenhower about it. it was all done in secret. and he was livid. he did everything in his power. he went to the united nations, he withdrew economic support for the british, and he did it all and then anthony eden finally, who was then the prime minister of england, succumbed to the pressure. and eisenhower got on the phone, oh, anthony, i'm so glad you did this.
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well, he had, of course, done the whole thing himself. what would he do in syria? i think he wouldn't have touched it right now. i mean, i think he would do not more than what the last two administrations have done. and the reason i say that is even in suez in 1956 there was a hungarian revolt. and there were members of his administration, certainly members of the cia, who wanted him to have the united states go in and confront the soviets in eastern europe. he says, i'm not doing that. he says that this is, this is their territory, and it's not something that is -- he didn't say it this so many terms. he says this is not a winnable confrontation for us. and he stayed out. and i think by the same token, i think he would probably do only
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minimally what was necessary to keep, to protect u.s. interests in the middle east. i don't think he'd do more than that. >> my second and last unfair question is can you imagine yourself in a few years writing trump versus roberts? [laughter] >> well, it'd be a difficult, it'd be very challenging -- [laughter] i mean, for one thing, and i've talked about this before, we're in the, we're in the era of advanced technology, and everybody is e-mailing and tweeting and so on. so people don't write letters way they used to. and so that would be, first of all, that would be a challenge, to find letters and diaries. people don't do that. i mean, what we know, the president tweets. that that's not quite -- it
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doesn't have the same thoughtful resonance, i would say -- [laughter] as, say, letters of lincoln or jefferson. [laughter] the other part of that is justices don't write letters as much. it's very hard to get the same kind of traction, scholarly traction with today's justices. i mean, frankfurter was a gift because he wrote long letters always defending whatever he happened to be championing at the time. and i don't think too many of the justices do that anymore. now, i'd be very surprised if chief justice roberts would do that, would have long diary entries. but i'll never know. >> and some of them destroy their papers. >> that's right. justice black, for example. >> yeah, yeah. well, why don't -- i have a lot
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more questions, but i'm sure all of you do too, so, marcey, are you going to emcee this? >> we've got a microphone down front for those of you on the far side to accommodate our friends at c-span and booktv who are kind enough to be here. and if you're on this side, i'll be happy to bring the mic to you if that's helpful. or you can stand at your seat and project. so while people are getting situated and formulating their questions and getting to a mic, maybe, professor simon, you can let us know what your next book might be about. >> well, i have some ideas, but it may seem like these are fairly self-evident books to write, but you really have to go to the archives, and you have to see what makes sense, you know? whether there really is a book. i have a couple of ideas, but i actually will need to go to some libraries to see if they work
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out. >> as long as you promise there will be another book. >> well, i hope so. >> in doing the research and looking at the letters and even though the focus of your book was on eisenhower and the chief justice, did you get a sense about chief justice warren's views of his colleagues on the court and also how the conferences amongst the justices impacted chief justice warren? what he thought about their views on different things or, you know, and how did that affect over a period of time his jurisprudence in and just as a follow on, you didn't mention president kennedy. chief justice warren was the chief justice for a portion of president kennedy's administration as well as lyndon johnson's. so maybe those should be your next books.
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but in any event -- >> well, particularly when he was first on the court, warren was very respectful of his colleagues, and partly that was political and partly because he realized he was new, new at the job. for example, he did a very smart thing as a great politician, he asked the senior justice who was then hugo black to preside at the early conferences, judicial conferences. he said, you know, i really don't know enough, i need a little time. and, of course, that was honoring and respecting black, and that was a smart thing to do. he was very close to felix frankfurter during brown v. board of education. frankfurter was a proponent of judicial restraint, as most of you know. and warren was very, very respectful of frankfurter.
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and frankfurter had been -- he'd taught constitutional law students at harvard for decades, and he loved to teach. and he, nobody he would rather teach than the chief justice of the united states. so that worked out really well at first, though, that he was -- and frankfurter was a very generous flatterer. i mean, he could flatter and he could teach, and he was in his element as long as warren agreed with him. [laughter] and when warren began to become independent of frankfurter in the latter part of the 1950s, frank furtherer became very -- frankfurter became very, very critical of warren in private in lots of his letters. and warren knew it. and there was one thing that
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warren could not tolerate even as a young man. you could not humiliate him. and he felt that frankfurter was condescending toward him. and that's all he needed. he just, he just went right back at frankfurter. and also by the late '50s, early '60s, juan was much more -- warren was much more comfortable as chief justice, and he was much more committed to i would say his civil rights and liberties agenda at that time. so that -- so he was aware and he worked with a number of the justices. he loved john f. kennedy. he spoke at the funeral. he said, you know, he was the age of one of my sons. it just really touched him greatly. and he liked lyndon johnson very much too.
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by this time, by the 1960s warren was a real liberal on the court. i mean, and he was the leader of this court. don't you ever forget that. he was, he didn't go to harvard or yale, but, by golly, he knew how to lead the court, and he did. so, and he really wanted johnson to replace him. and, in fact, when he thought richard nixon was going to win the presidency in 1968, he offered his resignation to lyndon johnson who was then the president. well, the republicans were not having my of that. that was in 1968, and johnson had already announced he wasn't going to run for re-election. he was a lame duck president. and so the republicans criticized him, including nixon who was then the candidate, became the candidate for the
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republican nomination, and then he became the candidate and then was president-elect. so warren was, warren hated nixon. just hated him. going back to the politics of california in the '50s . be he just -- and he just could not believe that richard nixon was going to name his successor. but that, of course, is what happened. >> yes. >> professor simon, thank you for being here. you taught me in 2012. i have a two-part question. one, the operative language or the important language of brown i is, of course, the all deliberate speed phrasing. in your research in this book, did you come across anything that gave you insight into
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whether or not the chief justice's expectation of time frame was met by using that phrase, whether or not he was maybe disappointed with the speed or lack thereof in instituting the change? and if you would maybe share a little bit of the discussions in class you had about the importance of that unanimous decision versus maybe the lack of unanimous decisions in the current supreme court with contentious issues? i just appreciated that in your class, and i was wondering if you would share some of that. >> thank you. sure. well, it was frankfurter's phrase, all deliberate speed, which he lifted from an early opinion of justice oliver wendell holmes. both frankfurter and warren agreed on it, that it would give the southern states a little bit of leeway. but they were both terribly disappointed, warren
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particularly became more and more disappointed, that the southern states didn't really submit desegregation plans many good faith -- in good faith. and he was very disappointed in that. as to the unanimous decision, that was warren, and that was one of his great contributions, i think, to the supreme court. and certainly to brown v. board. because brown v. board, it was actually five cases. it had been argued earlier, and the court was split with chief justice fred vincent who was a very poor chief justice. a very nice man, good friend of harry truman's who appointed him chief justice, secretary of treasury and so on. but he was a lousy chief justice. and he could not, he could not bring the court together, and he really didn't have his heart or his mind into brown.
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he was really holding out. and so was stanley reid of kentucky and so was tom clark of texas and even robert jackson of new york, a brilliant man, had concerns about the constitutional underpinnings of brown v. board. and finally when warren came up, he knew how to bring the court together, and he worked on it. he wouldn't -- he said, he said we're not going to vote at the first conference. because he didn't want, he didn't want to encourage a split on the the court. he said we're just going to talk about it. and then he started holding lunches with some who he knew were wavering, like stanley reid. and he'd bring -- and he wouldn't bring in the judicial
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intellectual firepower of frankfurter or black who might intimidate stanley reid or -- he brought in harold burton, and, you know, or sherman menton, you know? household words, right? [laughter] and they were midwesterners, and they were good guys, and they would have lunch, and sometimes warren would bring in, he had buddies who'd done some hunting, and he'd bring in wild quail or something they'd have for lunch, and it just went on for several months until finally hay did, they were ready to take a vote. and he knew stanley reid was holding out. and so warren went to reid's chambers, he said, stan, you're all alone on this. you think that's the best thing for the country? stanley reid came along, it was p unanimous when it was
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announced in the courtroom. stanley reid had tears in his eyes, and he said that's probably the greatest decision that the court has ever announced. >> do you remember warren's -- frankfurter's statement about replacement? the, when vincent died -- >> yeah. [laughter] he said -- frankfurter repeatedly said after fred vincent died he was the chief justice, and frankfurter just could not toll late -- tolerate fred vin sent. frankfurter had always thought of himself as an agnostic. and he said, you know, this is the first time i had some evidence that there is a good. love -- that there is a god. [laughter]
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>> i had the great good fortune in 1969 to end up, because nobody else asked any questions of a group of 20, to have, essentially, a two hour interview with then-retired chief justice. i gave him, as well as i could as a young student who had studied some constitutional law but never the same kind of hours that you're describing, but i also knew the arguments of the chicago school and the rest, so i managed to get him a little upset. 9 i thought that was -- at least i was trying to get my questions out to him right. what i said to him at the end was, mr. chief justice, of all the decisions that your court has rendered which have so changed the landscape of the country, which do you consider the most important? and i wasn't sure whether he'd talk about brown v. board, he
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said -- the politician that he was, and that is when it really hit me, he said, no, no, it's the one man, one vote decision. >> right. >> he said they're going to have the most profound, lasting impact on this country. i share that with you for what it's worth. >> and that's absolutely right. he said brown was the most important, he said reynolds v. simms, the one person, one vote. and, of course, we now think of the warren court as an egalitarian revolution, that it was a leveling not just by race, but by class. and so that you strike down barriers that will in some way obstruct our constitutional democracy. yeah. >> hi. my name is mark conrad, i was a student of dean simon in 1975 and in 1980. my question has to do with first amendment issues.
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is there any record of the chief justice's view on the dennis decision which was rendered a couple of years before he came to the court? and although the major first amendment cases were really decided in the 1960s, did -- were there any germination of major first amendment jurisprudence during the early years of the warren court and whether president eisenhower had any views on the first amendment jurisprudential shift the court was going into at the time? >> >> okay. i really feel like i'm back in the classroom. [laughter] well, i don't think warren, so far as i know, expressed any views on the dennis case, but the -- so far as i know. but the warren court did render a later decision in yates which
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felt with -- dennis dealt with a series of american communist leaders and whether they could be prosecuted and convicted under or the smith act for incitement to overthrow the government. and they contended that they were only teaching communist and markist leninist doctrine, and they'd done nothing to incite. and they could have won but they didn't. this was at the height of the cold war, and the court -- with justice douglas and black in dissent -- said that the government had a right to protect itself and that this was incitement enough.
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later on during the warren court there was a second case called yates v. california, i think, in which they -- another set of communist, american communist leaders, this time on the west coast. and the court decided that there had to be more than just advocacy. there had to be tangible evidence of incitement, and there had not been that in the yates decision which warren supported. and, indeed, eisenhower later criticized it, at least according to warren in one of their private conversations. so warren, warren characterized the president as being less sensitive to first amendment rights than he was, and that's probably true. he was certainly, as i say, i
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think throughout his day he was a moderate republican. he was not a, he was not a neanderthal, he was not a conservative in that sense of trying to suppress civil rights and liberties. not at all. >> i think we have time for just one more question. >> is it known who, be anybody, eisenhower was considering for chief judge beside warren? and if so, do you have any thoughts on how that might have changed things? >> well, he was considering -- there were a couple of people he thought about. john foster dulles, who was his secretary of state, was somebody that eisenhower greatly respected. and he raised the issue with eisenhower -- i mean, eisenhower raised it with dulles, and full theless wasn't interested -- dulles wasn't interested. he wanted to be secretary of state. arthur vanderbilt, who was then the chief judge of the new
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jersey supreme court, was also someone who had enormously, enormously respected. and eisenhower would have considered him. he had enormous judicial experience, but he was older. and eisenhower did not want to appoint anyone over the age of 64. and so he eliminated both of them, who he might well have -- you know, another person who at least was mentioned in passing was john w. davis. he thought davis was a great man and that he was a great lawyer. but he was, again, he was too old. >> did i see one more hand over here? >> john w. davis was one of -- [inaudible] >> it was john w. davis who was the democratic nominee for president in 1924, and i'm not sure whether he was wilson's son-in-law, but he was one of the greatest advocates before the supreme court in its
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history. >> [inaudible] campaign manager, then he became the attorney general. what role did he play in making recommendations for the chief judge's position, and then what role did he play in crafting the administration's response both when they asked for the amicus briefs and then in terms of implementing the decision? >> brownell was very, very influential. he -- brownell was not influential in eisenhower appointing warren. i mean, this was eisenhower's choice. but certainly are, brownell was many favor of it. brownell was more, very, very sensitive to civil rights and liberties in many ways. and he influenced warren -- eisenhower on his appointments. it was brownell who recommended
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harlan and brennan, and he was, he crafted the justice department brief in brown v. board of education which supported brown. he was behind -- we didn't talk about little rock, but he was very much pushing eisenhower to push -- he thought, rightly so, he said -- you may remember that, 1957, when the governor sent the national guard to ostensibly protect the african-american students trying to enter the central high school, but they, in fact, were there ordered to keep them out of central high school. and brownell says he's not going to change, and eisenhower tried to reason with him and brought him to meet with him and so on. and brownell said he's not going
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to change. he wants to be the reelected governor. he's got to be a segregationist during this thing. and eisenhower later said, you know, herb? you were right. and, by the way, one other thing. eisenhower wanted to appoint brownell to the supreme court, and he told him, and i have it because it's in his diaries. he told brownell that if he -- he was about to step down as attorney general. he said if you want to get on the court, i'll appoint you to the second circuit. right now. the first vacancy. and, of course, he would then be a steppingstone to the supreme court. and brownell said, no, i want to go back to private practice. not interested. >> thank you so much, professor simon, for a great conversation.
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[applause] so i hope you'll all stick around and join all of us for a reception. i think professor simon has even kindly offered to sign a few books, and stick around. you'll probably get more questions outside because there's a lot more to talk about. [inaudible conversations] >> oh, sure, sure. [inaudible conversations] minut.
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