Dwight Eisenhower was quoted once again in som obituaries of Supreme Court Justice William Brennan to the effect that appointing him was one of his two "mistakes." He never said it, and it wasn't a mistake, judged by Eisenhower's own standards. Blame the whole thing on gossip and Brennan's biographers.
Such anecdotes as a saddened Eisenhower grumbling about Brennan's opinions are the stuff good biography is made of: little stories that humanize the subject and cast light on his life and work. In the case of Supreme Court justices, such stories bring the subject to life in a way that mere description and analysis of opinions, speeches and previous legal career can never achieve. Nothing is duller than an "and-then-he-wrote" approach. Justices are people, they put their robes on one arm at a time. Biographers must show that.
But given the power of anecdotal evidence to concentrate a reader's essential image of the subject along specific lines, it is incumbent on biographers to document their sources when they resort to these humanizing touches and take great care to put them in responsible context.
President Eisenhower appointed Brennan to the Supreme Court in 1956. He has been reputed to have said in 1958, "I have made two mistakes, and they are both sitting on the Supreme Court." He was referring to Brennan and Chief Justice Earl Warren, whom he appointed in 1953.
The significance of the quote, in addition to its showing presidential exasperation, is that it suggests justices do not do what their presidential sponsors expect of them. It either vilifies Brennan and Warren or bathes them in a heroic glow, especially to those who like their justices principled, independent and aloof from politics.
But since politics at its rawest was at the heart of Eisenhower's choice of Brennan, the president's alleged quote would be misleading even if he in fact said it.
The two Brennan biographies that have appeared since his retirement in 1990 both give credence to the quote. In "A Justice for All" (Simon & Schuster, 1993), Kim Isaac Eisler writes that Eisenhower didn't actually say it in so many words but implied it in a 1957 conversation with retiring Justice Harold Burton.
Burton kept a diary, and Eisler, who used no footnotes, said in his text that that was his source. But what Burton actually wrote was this: "[Eisenhower] expressed disappointment at the trend of decisions of Chief Justice and Brennan." Hardly the same thing as "two mistakes."
Hunter Clark in "Justice Brennan: The Great Conciliator" (Birch Lane Press, 1995) uses the quote as a chapter heading. Though his book contains some 2,000 footnotes, he does not cite any source.
It was probably Eisler. You see the problem? Good anecdotes, true or false, acquire a life of their own. Eisler correctly explained in his book what happened after the Burton-Eisenhower meeting: "the rumor mill translated" Eisenhower's actual remarks into the juicier "mistakes" statement. But when the New York Times, in its obituary, said the evidence that Eisenhower actually said it was "equivocal," biographer Eisler wrote a letter to the editor saying Eisenhower did say it, refuting his own research and book.
And in 1961, Eisenhower, who had certainly heard the translated version, described his Warren and Brennan appointments in the rumor mill version's phrasing, according to CBS producer Fred Friendly, who was working with Eisenhower on an interview program.
Corrective at hand
If Eisler and Eisenhower, himself, could be influenced by the wrong version, so will many who come after them, even future biographers and historians.
Fortunately, a corrective is at hand. The CBS incident was described in a law review article by Stephen Wermiel, who is finishing up his Brennan biography for Scribner. I can't help but wonder if it wasn't Friendly, not Eisenhower, who described Warren and Brennan as mistakes. Wermiel doesn't say that the producer put the words in Ike's mouth, but he comes close to implying it.
Surely if Eisenhower had said it without prompting, Friendly would have decided it was newsworthy enough to film. It wasn't filmed. And the Eisenhower Library says it has found no corroboration of Eisenhower's uttering such a quote, in that or any other instance.
True vs. interesting history
Wermiel's research and documentation for the article's section dealing just with the famous remark are impressive. If his whole book is, as I presumed it will be, that thorough and well done it will be the definitive biography of Brennan. (Wermiel had 60 hours of interviews with the justice.)
Those who look to biography for true history have other reasons for being suspicious of the mistakes quote. Eisenhower barely mentions Brennan in his memoirs, and Stephen Ambrose mentions him not at all in his respected "Eisenhower the President." This was not a case of Eisenhower's mellowing in his post-presidential years. He was not above bearing a grudge. In an interview with Ambrose he referred to "that dumb son of a bitch Earl Warren." Now that's an anecdote that humanizes -- both Warren and Eisenhower.
As to the myth that Eisenhower made a mistake in selecting Brennan, what mistake? The president wanted a nominee who was relatively young, who was a state court judge with a good administrative and procedural record, who was a Democrat and a Catholic and a Northeasterner. Brennan (50, New Jersey Supreme Court) was all that.
Previous biographies and collections of essays about Brennan, including the recent "Reason and Passion: William Brennan's Enduring Influence" (W.W. Norton, 1997), take note of the importance Eisenhower placed on those last three qualifications passing if at all.
Why was Eisenhower, the first Republican president in 20 years, intent on putting another Democrat on a Supreme Court that already had a majority of Democrats? To show he was above partisanship, thus attracting independents to his side. And to increase the Republican Catholic vote in the looming election. (He gave Brennan a recess appointment to the court less than a month before Election Day, 1956.)
John F. Kennedy had come within a whisker of being nominated for vice president that summer; he was campaigning to large, enthusiastic crowds for the Democratic ticket. As it turned out, Eisenhower increased his vote over 1952 in every state with a significant Catholic population (though Republicans made no gains in Congress).
Makes for good gossip
According to some of the Brennan literature, and that dealing with other important Republicans of the day, Brennan was a moderate when chosen and became a liberal. Not so. He was by any standard a liberal state judge. Eisenhower and his aides paid little attention to Brennan's opinions as a New Jersey judge.
Subsequent writing about Brennan has focused on his Supreme Court record rather than on his New Jersey record. So the myth has survived. Wermiel seems to have read all the Brennan New Jersey opinions and the journalistic and legal community assessments of Brennan and his work pre-1956. Presumably he will go into them at length in his book. And deal with the mistakes anecdote and put the 1956 election in true context. The next sound you hear on the Brennan front should be that of the crockery of myth, gossip and misinformation breaking.
Theo Lippman Jr., a former Sun editorial writer and columnist, is the author of four political biographies, not all of whose anecdotes, he regrets to say, were as thoroughly documented as future biographers of Edmund Muskie, Spiro Agnew, Edward Kennedy and Franklin Roosevelt would have wished.
Pub Date: 9/07/97