California State Bar’s Institutional Memory is Failing….It forgets a Speaker Named Earl Warren

 

PERSPECTIVES (Column)

State Bar’s Institutional Memory Is Failing; It Forgets a Speaker Named Earl Warren

 

By ROGER M. GRACE

 

The State Bar has announced that U.S. Supreme Court Justice Antonin Scalia will be a speaker at its convention next month in San Diego, advising on its website: “Anthony Kennedy, the keynote speaker at the 2010 Annual Meeting, was the only other U.S. Supreme Court justice to make an appearance at the meeting.”

Balderdash.

It’s puzzling how the State Bar could be overlooking the appearance at its convention of the chief justice of the United States and seven of the associate justices.

As this column recited on Sept. 3, 2008, in reaction to a lackluster line-up of speakers at the State Bar’s upcoming conclave:

“In 1963, the State Bar honored Earl Warren in connection with the 10th anniversary of his appointment as U.S. chief justice. All of the federal high court’s associate justices were there for the five-day event except John Harlan, who was said to have had a prior commitment. All seven members of the California Supreme Court were present. Warren and California Chief Justice Phil Gibson both addressed a…dinner meeting.”

And that Sept. 25 address in San Francisco by the chief justice was indeed a major one, coming at a time when the “Warren Court” was under a broad attack for “judicial activism” and “expansionism.”

On a narrower scale, but sparking widespread attention, the far-right John Birch Society, and groups of like mind, were clamoring for Warren’s impeachment.

Warren, who was governor of California when appointed to his judicial post by President Dwight Eisenhower in 1953, noted in his speech that he had not previously spoken before any bar association during his tenure as chief justice. But the invitation extended by State Bar President William P. Gray (later a U.S. District Court judge) was “so intriguing,” he related, that he could not resist accepting.

The opportunity was probably more enticing than intriguing. A beleaguered chief justice could hardly call a press conference to respond to charges of a largely political nature. Warren needed an appropriate forum in which to counter the increasingly fierce assaults on the court—and him personally—and to portray the high court’s recent decisions as being reflective of the normal progression of law rather than a series of radical departures from settled law.

What Gray offered Warren was an occasion for presenting his defense to the people of the nation—through the inevitable press accounts of his address—while speaking before an audience in his home state comprised nearly entirely of lawyers and judges (whose registration badges gained them the right of admission). The forum was one that was dignified; it was non-political; it was one where the audience was bound to be supportive…and Warren was, in fact, warmly received.

The Los Angeles Times’ Sept. 26 issue reports that Warren “made no direct reference to specific attacks on the court or to the John Birch Society campaign to impeach him,” observing that he “spoke without rancor, but with a fervent appeal for appreciation of the court’s true function.”

The full text of Warren’s address appears in the Sept. 27 issue of the Metropolitan News. It includes this passage:

“This has been an interesting decade on the Court. The years have been challenging, and I need hardly tell you, they have been controversial. However, it is not the Court that has made them controversial—it is the times in which we are living. The landmark cases that came to us were charged with great emotion. But the same can be said in varying degrees of almost all the decades of our national life.

 

—AP

The chief justice good-naturedly accepts a pamphlet from a woman holding an “Impeach Earl Warren” sign. She was one of about a dozen picketers outside San Francisco’s Masonic Auditorium to which Warren had come to deliver his address.

 

“Since the Court came into existence almost 175 years ago, there have been few eras in which it has not been the center of intense controversy….”

Warren points out in the speech that decisions of the Supreme Court “from the late thirties to the early forties were as highly controversial as any in our history,” yet are “now shorn of their emotion and are a part of the settled jurisprudence of the Nation.”

Warren depicts the court as being misperceived in various ways. He scoffs at rumors of discord among the members, insisting:

“I could count on the fingers of my hands—possibly one hand—all the times that there has been even a flare of temperament in the conference room, and those have always subsided in a matter of minutes. I can truthfully say to you what Mr. Justice Holmes said 50 years ago. His words were, ‘We are very quiet there, but it is the quiet of a storm center as we all know.’

“But there have been people on the outside who, for reasons of their own, have enlarged upon an occasional sharp retort in Court or a few caustic sentences in a dissenting opinion to build imaginary feuds that never existed.”

Warren relates that when the landmark school desegregation decision came down in 1954 in Brown v. Board of Education, “the Clerk of our Court for weeks was beset by scores of requests for copies of ‘the dissenting opinion.’ ” He remarks:

“When told that there was no dissenting opinion, many of them demanded to know by whose orders the dissenting opinion had been abolished. Others, believing that there must be a dissenting opinion, threatened to have him investigated for suppressing it.

“I am not surprised that people would have such an idea because the wildest speculations were in the press while those cases were under submission. Only a few days before the opinions were handed down, one prominent columnist on ‘unimpeachable authority’ wrote that the Court was bitterly divided four to four, and that both sides were making life miserable for me because I could not make up my mind. But the fact was that I wrote the opinions, and they were unanimous.”

Warren acknowledges that during the 1936 term, only two of the 160 cases the court decided dealt with civil rights, while 54 out of the 120 decisions handed down during the 1960-61 term were in that field, remarking:

“This disparity is the cause of conjecture on the part of many people. They wonder why only a little over 1 per cent of our decisions were in this area 25 years ago while almost 50 per cent are in this area now. Many of them say, ‘Don’t you think we are moving too fast in this area?’ as though the Court could regulate the speed with which such cases come to it.

“There are many people, and I fear some lawyers, who believe that whenever the Court disapproves of some facet of American life, it reaches out and decides the question in accordance with its desires. I am sure many people do believe this to be true because they often say. ‘I do not disagree with your opinion, but do you believe this it a good time to decide such controversial questions?’ Such a question, of course, entirely misconceives the function of the Supreme Court and the limitation of its jurisdiction to actual cases and controversies.”

An Associated Press account says:

“Warren, whitehaired but spry at 75, has been a familiar figure during the State Bar convention. He has dropped in on actions, hailed old friends and talked over old times with people he knew in his long career here.

“Warren drew a standing ovation when, unannounced, he strode into the State Bar [Conference of Delegates] meeting—in between debate on state’s rights and civil rights issues that touched on Supreme Court decisions.

“‘I couldn’t resist the temptation to at least come and say hello,’ he told the 476 delegates.”

Other members of the Supreme Court mingled with the lawyers. An AP photo shows Justice Tom C. Clark pouring coffee for San Francisco Deputy City Attorney Agnes O’Brien Smith (who later served as presiding judge of the San Francisco Municipal Court). Standing beside him at a breakfast meeting of the women’s division of the State Bar are Justices Hugo L. Black and Potter Stewart, with Justice Arthur Goldberg seated.

Warren and Black were among those who attended a speech by then-California Supreme Court Justice Matthew Tobriner, according to a MetNews report.

The California Judges Association, then known as the Conference of California Judges, used to hold its meetings in tandem with the State Bar convention (now referred to as the “annual meeting.”) Justices Clark and William Brennan addressed the conference that year—as Justice William Douglas had in 1949.

That was not the only time a member of the U.S. Supreme Court, other than Kennedy and Scalia, addressed a State Bar convention in California. Justice Robert H. Jackson delivered the Morrison lecture on Aug. 23, 1951.

Entitled “Advocacy Before the United States Supreme Court,” it is published in the Fall, 1951, issue of the Cornell Law Quarterly.

So, prior to Kennedy’s address in 2010, at least two members of the U.S. Supreme Court spoke at a State Bar of California convention, and at least seven others made appearances there.

Perhaps there were others. It could not responsibly be said that there weren’t others without looking through State Bar records from 1927 on.

MEA CULPAS—While on the subject of gaffes in statements about history, a “Snippets” item in this newspaper awhile back referred to Court of Appeal Presiding Justice Joan Dempsey Klein of this district’s Div. Three as “the first female presiding justice in the state.” Klein has many distinctions, but that isn’t one of them.

That distinction belongs to Annette Abbott Adams, appointed by Gov. Culbert Olson on March 30, 1942, to head the Third District Court of Appeals in Sacramento. An Associated Press dispatch that day quotes Olson as terming her “one of America’s outstanding women lawyers.”

The appointment rendered her not only the first woman presiding justice in the state, but the first female member of the appellate bench in California.

Though little remembered today, she attained national prominence in her time, even being mentioned as a possible vice presidential nominee.

She was also the first woman in the United States to serve as a federal prosecutor, nominated by President Woodrow Wilson on Sept. 28, 1914, as assistant U.S. district attorney for the Northern District of California. She had worked to stir support among women for Wilson’s candidacy in 1912 (the first year women could vote in a presidential election), serving as president of the Women’s State Democratic Club.

Adams gained international attention in connection with her wartime prosecution of Franz Bopp, the German consul general in San Francisco, along with four of his underlings, for violations of the Neutrality Act and the Sherman Antitrust Act. Bopp had plans for an expedition against Canada and to dynamite U.S. ships carrying ammunition to allies.

The April 4, 1916, edition of the Aukland (New Zealand) Star observes that Adams “is recognised as the most astute female representative in the United States from a point of view of jurisprudence.” The article reports that a demurrer was sustained to the indictment owing to lack of specificity, continuing:

“Undaunted by the victory of the defendants, Mrs. Adams, Uncle Sam’s only woman prosecutor, worked all night on plans for a new line of attack, and plugged up the holes in the quashed indictment….”

It was presented to the grand jury, which approved it.

Convictions came on Jan. 10, 1917.

A Jan. 13 editorial in The Daily Inter Lake, a Montana newspaper, comments:

“While the ‘silent picketing’ of the white house by suffragists tends to lessen the faith of many in the ability of women to exercise good judgment and ability in case trust is placed in them it is more than off-set by the accomplishment of a woman—Mrs. Annette A. Adams in the Franz Bopp case, which is now of international importance.

“….According to the press dispatches a large part of the strength of the government’s case was due largely to her excellent work. It was she who opened the case, and who represented the government when the verdict was announced.

“This year sees many women in high official positions throughout the country, and Mrs. Adams’ success is assuring.”

A Jan. 18, 1914, article in the Fort Wayne Sentinel says that Adams “has achieved unusual distinction by the brilliancy of her work for the government” in the case. It reflects:

 

ANNETTE ABBOTT ADAMS

First female presiding justice in California

 

“She was entrusted with the important duty of making the opening argument for the prosecution in the closing hours of the famous heaving. The effective manner in which she performed the task won her the hearty compliments of her brothers in the legal profession. The spectacle of a woman asking the conviction of titled men was one of the outstanding features of the trial.”

Another first for a person of her gender came on July 25, 1918 when U.S. District Judge William CVan Fleet of the Northern District of California made a recess appointment of her as United States district attorney, on an interim basis. Van Fleet is quoted in the next day’s issue of the San Francisco Chronicle as saying:

“I shall acquiesce in the suggestion that she be appointed to this post with entire satisfaction to myself that the work of the office will be performed to the very greatest degree of efficiency.”

Wilson sent her nomination to the Senate on Feb. 27, 1919, and she was confirmed a few days later.

In 1920, U.S. Attorney General A. Mitchell Palmer—architect of the “Palmer Raids,” aimed at mass arrests and deportation of alien radicals, and a candidate that year for the Democratic nomination for president (which he did not receive)—asked Wilson to appoint Adams as an assistant U.S. attorney general. The president obliged on May 29 of that year; on June 4, 1920, she was confirmed by the Senate, becoming the first woman to attain the post. In fact, that was the highest federal post held by a woman in the history of the nation.

Adams attended the 1920 Democratic National Convention, which took place in San Francisco from June 28-July 6. She was there to rally support for Palmer’s long-shot presidential bid…and her own far-longer-shot bid, backed by women’s organizations, for the vice presidential nomination.

A June 16 International News Service dispatch from San Francisco begins:

“Will the Democratic vice president nomination go to a woman? This query was agitating not alone the feminine advance guard to the national convention here but was also being seriously discussed by the male contingent.

“One well defined vice presidential boom for a woman is well under way and two other names of women prominent in the party are mentioned in connection with the proposal to place a lady close to, if not, actually in the While House.

“The boom is for Mrs. Annette A, Adams of San Francisco….

“Her availability as a candidate is being enthusiastically boosted by several Pacific Coast women’s clubs and endorsement to the boom has been given by a number of women leaders who have arrived here to attend the convention. Mrs. Adams today had not decided to become an active candidate for the nomination.”

The Washington Post’s issue of June 20 carries a photo of Adams and reports that she “is being discussed by Democratic women as a possible candidate for the Vice Presidency….”

The Boston Post, on that same day, includes an article that asks:

“Are we going to have a woman for Vice-President if the Democratic ticket wins?

“Just what will happen if Assistant United States Attorney-General Annette Abbott Adams is nominated and elected ‘right hand woman’ to our next President?

“Will she set the fashions at the Capital for the women all over the country? And will they be feminine or masculine styles? Will she be willing to take orders from the ‘mere man’ in the Presidential chair? Will she give up all womanly interests and bury her sex under her career?”

The newspaper notes that those who know Adams credit her with being a “brilliant lawyer and a charming woman,” as a “prosecutor feared by criminals and respected by the opposition,” and “a good cook.”

The May 30, 1920, edition of the San Francisco Chronicle tells of Adams having recently been admitted to practice before the United States Supreme Court (actually, the previous March). Moving for her admission was U.S. Rep. John E. Raker, D-Northern California (in whose law office she had practiced), and administering the oath was Chief Justice Edward L. White. The admission fee was $10. When asked by the clerk to pay, the article recounts, she found she had only $7 in her handbag. She stepped into the office of White’s secretary and returned with the balance of the fee. Adams carried cash in her stockings.

Adams was also the first woman to sit on the California Supreme Court—though by assignment, in 1950, participating in one case.

She served as presiding justice until her resignation, effective Nov. 30, 1952. Her age was 75.

Death came on Oct. 26, 1956.

All persons mentioned above are deceased…with the possible exception of the unidentified woman holding the picket sign.

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