In response to:
Supreme Court Confidential from the February 7, 1980 issue
Supreme Court Confidential from the February 7, 1980 issue
To the Editors:
Anthony Lewis in a review of our book, The Brethren [NYR, February 7], alleged that two pages dealing with a 1972 Supreme Court case, Moore v. Illinois, make “a serious charge (against Justice William J. Brennan, Jr.) without serious evidence” and “leaves doubts not only about the authors’ understanding but about their scrupulousness.”
We not only wish to take exception to both of Lewis’s assertions, but to raise several questions about Lewis’s own reporting standards. For the record, our evidence is not only serious but precise; our reporting was not only scrupulous, but, as best we can determine on further examination, completely accurate. We stand by our story.
In the book, we say that although Brennan realized his initial vote in the Moore case was incorrect, Brennan was unwilling to switch sides for fear of offending Justice Harry A. Blackmun who had authored the tentative majority opinion. Because of Brennan’s vote, a man was to remain in prison rather than get a new trial. According to our sources—and we have a total of seven—Brennan stayed with the Blackmun opinion because he did not want to jeopardize Blackmun’s vote in the more important abortion and obscenity cases.
Lewis bases his attempted refutation of our account on an interview with only one person, Paul Hoeber, a former law clerk to Justice Brennan. According to Lewis, Hoeber told him that our account was incorrect. Lewis goes on to cite Hoeber saying that twenty-nine other former law clerks cannot support our account.
Because Lewis relied on one source, he had no way of knowing the following facts:
Hoeber was the original source of the account. Fortunately for us because Hoeber was one of the two clerks who spoke on the record (out of more than 170 interviewed) during our research, we are able to relate what Hoeber said about the Moore case over the first of two long dinners at the Hay-Adams Hotel in late 1977.
Hoeber and his three Brennan co-clerks sent a letter to the Washington Post several days after the publication of The Brethren last December disputing the account of the Moore case. Since Hoeber was the original source, we contacted Hoeber and read him the notes of his interview. One half hour later, a messenger arrived withdrawing the letter on Hoeber’s behalf. We thought the matter ended.
Hoeber at first denied to other reporters that he had spoken with us about specific cases but changed his position when confronted with portions of the notes from the interviews.
Brennan’s support of Blackmun’s position in the Moore case was highly out of the ordinary for “the Court’s most devoted libertarian,” as Lewis calls Brennan. Brennan’s most frequent ally, Justice Thurgood Marshall, authored a dissent to Blackmun’s opinion and persuaded Justices Lewis F. Powell and Potter Stewart to join both him and Justice William O. Douglas. Marshall expected Brennan to switch sides also. Brennan’s failure to switch requires an explanation of exactly the sort Hoeber suggested in his interview with us in 1977. But Hoeber’s singular account was not a sufficient basis for drawing the conclusions we do in the book.
There are six additional sources for the account provided in the book. One made notes at the time and quotes Hoeber as returning from a meeting with Brennan and saying “He won’t leave Harry on this,” and confirms the reasoning we give in the book. Another source spoke directly with Brennan about the subject. That source reviewed a longer, more detailed version of the case we initially drafted and said that we “have the basic story correct.” That source also says that Brennan himself said “it simply is not a question of law worth deserting HAB [Blackmun].”
Yet another source quotes Hoeber as saying at the time in 1972 that Brennan accepted Marshall’s position but “he’s not going to let HAB [Blackmun] lose his court.”
Still another source noted how Brennan said he was concerned that the Moore case might “push Blackmun over to the other side” in the abortion cases.
Two other sources confirmed the account printed in the book. Over a dozen sources noted that during the period, Brennan was actively courting Blackmun in an attempt to be sure Blackmun voted with Brennan in the abortion and obscenity cases.
We are as certain as we can be that our account is accurate. Lewis had charged that we deal with the case “almost offhandedly.” Yet our account is based on multiple sources and includes at least two sources who discussed the case directly with Brennan and one source with notes made at the time. Lewis’s charge seems on the other hand to be based on one source.
Here are the notes of what Hoeber said in 1977 about the case:
Another case involving a guy named Slick; believe case was Moore v. Illinois. It was a Blackmun opinion and Bren. joined it. Decision was clearly wrong but Bren. did not want take back his vote. It had started out as 7 to 2; Pow. [Justice Lewis Powell] and one other switched after more study as any logical person would have done. So it was 5 to 4. Bren. held to original position because it was Blackmun. Clerks blamed themselves for not getting on the case early and seeing what it involved. Marsh. [Marshall] dissented.
Is it likely that Hoeber’s new position is accurate after the publication of a book that contains criticisms of his former boss? Or is it more likely that Hoeber was accurate in 1972 when he reported Brennan’s reaction to others at the Court and in 1977 when he gave the same account to us? It seems far more likely to us that Hoeber’s memory and candor were operating more precisely before there was a public controversy about the case, than after.
Hoeber’s error may be one of memory. But Lewis’s error is one of poor reporting. But it does not stop with his devotion to Hoeber’s new version. Lewis has further criticism. Noting that the book has one “Justice [Lewis’s friend Brennan again] saying, ‘You bet your ass’ or making an obscene gesture,” Lewis observes “[a]ll this has nothing to do with anything.”
Out of context, Lewis is perhaps correct. But Brennan makes the comment in response to the observation of another Justice, “that, as a white man, he would not want to be tried in the District of Columbia, where the juries were predominantly black.” Surely even Lewis must understand the potential significance of the “court’s most devoted libertarian” being so cynical about the capital’s criminal justice system.
And Brennan’s use of an obscene gesture to refer to the Chief Justice would be similarly irrelevant were it not an expression of Brennan’s bitter frustration over six years of what Brennan perceived to be the Chief Justice’s deliberate and callous manipulation of the Court.
Lewis says all this is merely strong feelings and “not news.” Indeed for Lewis it is not. After following the Court for over two decades Lewis has never reported it as news or anything else. He has simply withheld it from his readers.
Lewis praises some of the “more interesting disclosures” in the book, particularly the account of the 1971 decision upholding court-ordered busing in Charlotte, North Carolina, and the Nixon tapes case. Is it entirely coincidental that these sections are flattering to his friend Brennan and unflattering to the Chief Justice?
Lewis is among the few journalists who have had regular access to the Justices and to their thinking. One of the Justices with whom he is particularly close is Justice Brennan. During the preparation of our book, we came to share much of Lewis’s respect for Brennan. But we cannot share his perception that the proper role for journalists is as a press officer and official apologist for the Court.
Lewis is correct on one point. Justice William O. Douglas, not Brennan, wrote the 1963 case Brady v. Maryland. The miscitation is one of three in our 467-page book. We note that in Lewis’s considerably shorter review, he mistakenly identifies Alexander v. Holmes County Board of Education as Green v. School Board.
The Washington Post
One firsthand witness to the disputed aspects of the Moore case was a law clerk to Justice Marshall in the 1971 term. He was interviewed for The Brethren and may well be one of the “additional sources” claimed by the authors for their story. I therefore begin this reply with what the former clerk said when I telephoned and asked about Moore:
“When the case was about to come down, one of the Marshall clerks—namely me—asked Paul Hoeber whether Justice Brennan might not switch and give us a majority. And after he checked, the answer was no.
“I never saw Hoeber ‘shaken,’ as the book says. Nor would I have forgotten any flurry about vote-trading or anything like that.
“Before the book I did talk to Scott Armstrong here. I don’t remember the conversation about the Moore case; but if he had said to me that Brennan refused to change his vote for that reason, I would have said that I had no idea why he didn’t change his vote. It wouldn’t have occurred to me that such a story about Brennan was true.
“Aside from this several things have happened since that have really puzzled me. One is that I got a phone call from Armstrong after the book was out….
“The surprise came when he asked me whether I had any files on my year with the Court. And I was surprised because, with any decent recollection at all, he would have remembered or known that I had nothing by way of papers or anything else except memory—known from our previous conversation, which was in person. I had the sense that he was looking to find a clerk about whom he could say, ‘That clerk had a file.’
“The Los Angeles Times had quoted them as saying they had a clerk with a diary [of the Moore term]. So I thought they might have been looking around for one, and I was very disturbed by that kind of call. It was totally different from my first conversation with Armstrong, which had been pleasant….
“Stupidly, I didn’t take notes of our conversations. I suppose that, like many people of my clerkship vintage, I relied on Woodward’s reputation, and I’ve been disappointed since.”
In the 1971 term the justices had among them thirty law clerks. I reached all thirty by telephone and asked about the Moore case. Their verdict on the story told by Woodward and Armstrong was overwhelmingly negative. The prevailing tone of their comments was disbelief, verging on contempt.
The clerks who had personally worked on the case or had any direct knowledge of it all flatly rejected the story. Many of those without personal knowledge said they found it inherently “implausible” or “bizarre”; others said that they knew nothing to support it, had not been asked about it by Woodward or Armstrong, or had not talked with them at all. One said that he had heard such a story but could not recall where and had not mentioned it to the authors.
Seventeen of the thirty former clerks spoke to me on the record. During each of the telephone conversations I typed a verbatim record of all comments relevant to the issues raised by the Moore case and the book, asking the other party to slow down or wait if I ran behind. I did that to avoid the unreliable character of the “notes” produced by Woodward and Armstrong, of which more later.
“If there had ever been the least little suggestion of the kind alleged in the book [about the Moore case],” said William Alsup, who clerked for Justice Douglas that term, “it would have gone like electricity around the Court and I would have heard about it. But I heard nothing. I remember absolutely nothing that would support what the book says.”
Others made the point that any such tale would have become quickly and widely known. Hamilton P. Fox III, who worked on Moore v. Illinois in Justice Powell’s chambers, said: “There were people there who would have said, ‘You can’t believe what Brennan did.’ But no such thing happened.”
The rejection of the charge ran across the judicial spectrum. William H. Jeffress Jr., who clerked for Justice Stewart, said: “I do not know anything from my term that would support the notion that Brennan voted as he did in the Moore case to curry favor with Blackmun.” A clerk to Chief Justice Burger that term, Douglas Floyd, said: “Prior to the reading of the book I never heard any rumor or report of that kind. I know nothing that would suggest to me that that in fact occurred.” James Scarboro, a clerk to Justice White, said: “I did not hear of any such thing, and I don’t know anyone who did.” Scarboro added a general comment about the book:
“The thing that I tried to get Armstrong to do was to write a book that would explain the decision-making in the Court, what the decisions mean and how people can understand them. Instead, they chose to write a book that was wholly sensational. They’re smart fellows, or so I assumed. But since reading the book I’ve come to wonder whether they really were capable of understanding. Or perhaps because of Woodward’s success before, he came to this subject with blinders.”
Another theme sounded by several of the law clerks was that the book’s story of the Moore case was in conflict with what they perceived to be the character of Justice Brennan, and with his long record as a judge. I did not ask any of the thirty about this; the comments were volunteered. Larry A. Hammond, a clerk to Justice Powell that term, said: “I just don’t believe that Justice Brennan is the kind of man who would do that. My God, the man has been at the Supreme Court almost as long as I’ve been alive, and his record of sensitivity to constitutional principle is unequaled. He has been one of the people most concerned, most careful in his scrutiny, certainly where prisoners’ rights are concerned.”
Another Powell clerk, Covert E. Parnell, said: “Having seen Justice Brennan in operation for a year, I find their account very hard to believe. It just strikes me as being so unlike him as to be implausible.”
The justice who would presumably have been most outraged at such behavior on Brennan’s part is Thurgood Marshall, who wrote the dissenting opinion in Moore. I asked Justice Marshall what he thought about the story in The Brethren. His reply was scornful.
“I never heard it before [the book],” he said. “And don’t you think I would have remembered? But my law clerks at that time remember talking to Brennan’s law clerks. And it’s just a complete falsehood.”
Did he think Justice Brennan had deserted him in the Moore case? I asked. Marshall laughed. “It’s not a question of deserting me,” he said. “It’s a charge of deserting what he stands for. And he stood for those things long before he knew me.”
Of course no amount of disbelieving comment or denial, even by those most intimately involved in the Moore case, can formally disprove the story told in The Brethren. It is the old problem of proving a negative, the more complicated here because of the slippery nature of the evidence produced for the charge.
Consider the paragraph numbered 5 in the Woodward-Armstrong letter and the three succeeding paragraphs. This appears to be the guts of the further evidence that the authors say they have, yet it is singularly difficult to pin down exactly what is there. Broken quotations are followed by unquoted characterization. No source is quoted in full, and the context of the questions asked is not given. No lawyer and, I hope, no editor would consider such stuff proof of anything. But still, an effort must be made to penetrate the obscurity. It takes space—too much, I fear. But I know no other way to deal with the matter except in detail.
Fortunately, Woodward and Armstrong have given us some clues. In February, Time magazine’s law correspondent in Washington, Evan Thomas III, was working on a story about The Brethren. Woodward and Armstrong invited him to Woodward’s home at 11 o’clock on the night of February 28 to show him their evidence on the Moore case because he had noted my review and its criticism of that tale. They gave Thomas the notes of the interview with Hoeber. And they showed or read him what they said were notes of three other interviews, folding the paper or otherwise concealing the names of the interviewees. As Thomas wrote them down and read them to me, they were:
“We have basic story correct. But WJB [Brennan] said, ‘Boys, this case is uncertworthy. It doesn’t belong here. It simply is not a question of law worth deserting HAB.’ ”
“After 30-minute meeting Hoeber came to me and said, ‘He won’t leave Harry on this.’ ”
“He is not going to let HAB [Blackmun] lose his Court.” (Thomas had the impression that this might have been another version of the second note.)
All three of these appear in the Woodward-Armstrong letter, in amended form. They must therefore be examined with some care.
The source in the first interview note can be identified with virtual certainty: C. Taylor Ashworth, a law clerk to Justice Brennan in the 1971 term. Ashworth identifies some of the language as his, especially the word “uncertworthy,” meaning a case that had not deserved the grant of certiorari (review). The word “Boys” also fits with the account that Ashworth gave me when I originally talked with him, before seeing the Evan Thomas notes or the Woodward-Armstrong letter.
“I had one conversation with Justice Brennan about the [Moore] case,” Ashworth said, “as one of the four law clerks at our usual morning coffee with him.” (That was an occasion when Brennan might have said “Boys….”) “He expressed the view that it was purely a fact case and therefore not one that law should be made on, and that he was familiar with the facts and thought the conviction should be affirmed.”
As shown or read to Evan Thomas, the note of this interview began: “We have basic story correct.” But the rest of it, curiously, is to the opposite effect. The next sentence begins with the word “But,” and it goes on to give a mundane reason for Brennan’s view—that it was a trivial case, one that should not have been heard. The form of the first sentence, “We have…,” sounds like an interviewer’s summary, not a direct quote from the source.
The Ashworth interview appears in the Woodward-Armstrong letter in the last three sentences of the paragraph numbered 5. They have dramatized it considerably, for example saying in italics that the source spoke directly with Brennan—but not saying that it was a fleeting conversation over coffee. They use the “basic story correct” sentence as if it were a direct quote from the source and add to it the claim that the source “reviewed a longer, more detailed version….”
Did Taylor Ashworth “review” the authors’ story of the Moore case and pronounce it basically correct? He was interviewed twice by Scott Armstrong. Armstrong brought up Moore in the second interview, which occurred late in the period of work on the book. This is Ashworth’s account of what happened:
“First he asked, ‘Do you remember Moore v. Illinois?’ I didn’t remember the name…. Then he said it was one of the cases that were held for the death penalty decision. I told him I did remember some case—didn’t know if that was it—and Brennan saying it was strictly a fact case, not certworthy.
“Then he asked whether I remembered anyone ever suggesting to me that Brennan voted with Blackmun in that case ‘in order to keep Harry in line on the abortion case.’ I said: ‘No, I never heard anything like that. All I remember, if that was the case, was that it didn’t have any legal issues in it, it never should have been argued.”
Ashworth adds: “I have a vivid recollection of that part of the conversation with Mr. Armstrong, and so does my wife.” I spoke with Mrs. Ashworth, and she does.
There is one other interesting thing about that interview with Taylor Ashworth: Scott Armstrong took no notes during the interview. Mrs. Ashworth, who is a court reporter by profession, noticed that especially—and thought it odd.
The other two bits of interview notes read or shown to Evan Thomas need little comment. It is ordinary usage at the Supreme Court to say that a justice is joining or leaving another who has written in a case, and it shows nothing about motive. What is interesting is the way the Woodward-Armstrong letter has adorned these innocent passages.
The phrase “He won’t leave Harry on this,” from interview note number 2, appears in the second sentence of the paragraph 5 in the letter. It comes, we are told, from a clerk who “made notes at the time.” If you believe that, it adds nothing to the anodyne phrase about leaving Harry. But I do not believe it. I think the source is the Marshall clerk quoted at the beginning of this reply, who was asked by Armstrong—after my review—whether he had any files. The letter refers again later to a source “with notes made at the time.” Notes of what?
The letter adds to the phrase about leaving Harry a statement, not in quotation, that the source “confirms the reasoning we give in the book.” Where did it come from? What basis does it have?
Interview note three, “He is not going to let HAB lose his Court,” appears in the letter in the paragraph following the one numbered 5. Like note 2, it has gained an unquoted addendum, alleging that Hoeber said Brennan “accepted Marshall’s position.” Whence did that appear, whatever it means? And if it comes from the Marshall clerk who dealt with Hoeber, as it evidently does, why should we believe in this claimed statement, not in quotes, when the clerk says directly that Hoeber told him no such thing?
Woodward and Armstrong also read Thomas some notes, saying, in Thomas’s words, “how much Brennan cared about Blackmun’s vote on abortion, how key Blackmun’s vote was.” That is a statement of the obvious about the justice (Blackmun) who wrote the Court’s opinion in that highly controversial case. So is the statement in the authors’ letter that Brennan actively courted Blackmun’s vote: that is how the process of persuasion is supposed to work in the Supreme Court. When these things were read to him, Thomas says, there was “no direct link to the Moore case.”
The next morning Armstrong telephoned Thomas and said he had something else: a law clerk had told him that fear of upsetting Blackmun in the abortion case had motivated Brennan in “pushing Moore other side.” Whatever this was supposed to mean, it was presented to Thomas as the clerk’s opinion, not as something said by Brennan. It seems to appear in the letter in the second paragraph after number 5, but now with a suggestion that Brennan is being quoted.
Evan Thomas was not greatly impressed by any of this supposed evidence. He filed this comment on the notes of the interviews with Hoeber and the other alleged sources: “Cryptic and open to interpretation, these notes give only slight credence to the story. At best, they represent the highly subjective guesswork of clerks rather than anything Brennan himself said.” Just as the issue of Time was closing, Woodward telephoned Thomas and said he could find more evidence if there were only time. Thomas talked to the editors in New York, and the piece ran without his comment on the notes.
In their letter Woodward and Armstrong also say that “two other sources confirmed the account.” Several law clerks mentioned to me, with mixed amusement and resentment, that Woodward had tried on them in interviews the familiar technique of saying that he would tell them something and, unless they objected, count it as confirmed. Some told him they would not play the game. Did he count their silence as confirmation? Unless we know the words asked and answered, the bare statement that someone “confirmed” a story has no weight as evidence. Would we want a jury to convict an accused because an interested witness said some other, unidentified person had “confirmed” his crime?
Significantly, Woodward and Armstrong say they have “at least two sources who discussed the case directly with Brennan.” There is no mystery about who those two are: Taylor Ashworth and Paul Hoeber, the two Brennan clerks. Ashworth (independently supported by his wife’s recollection) says that, far from confirming the story, he explicitly told Armstrong that it was false. Hoeber has publicly denounced it as a lie. So the authors’ two sources with firsthand knowledge of Brennan’s views turn out, when we penetrate the slippery prose, to be people who say the charge is untrue. That is certainly an ingenious use of unidentified sources.
The notes of Woodward’s interview with Paul Hoeber require brief comment. Hoeber says with some passion that they are a travesty. He took notes himself of a later telephone conversation with Woodward, he has compared them with notes of that conversation shown by Woodward to Evan Thomas, and he is prepared to expound on Woodward as a note-taker. But there is no point in exploring this issue, because the notes of the Hoeber interview, even if taken as gospel, do not support the charge in the book.
The notes do not mention the book’s claim that Brennan voted as he did in Moore because of the pending abortion and obscenity cases. They do not suggest, as the book does, that Brennan told Hoeber he was deliberately voting against his conscience. They do not say, as the book does, that this left Hoeber “shaken” and other clerks “shocked.”
What the notes give, if anything, is the clerks’ view of Moore—that the decision was wrong, that logical people should see that, and that they blamed themselves for not catching it earlier. (The decision in this trivial case came down on the last, extremely busy day of the term.) All that could be called heady law-clerk stuff, but it ascribes nothing to Brennan. The only thing that seems to is the cryptic statement that Brennan voted as he did “because it was Blackmun.” If in fact Hoeber said that, the least experienced of journalists should have asked him what he meant. Evan Thomas, puzzled by it, asked Woodward why he had not pushed Hoeber more. Woodward gave two reasons: It was a first interview, he didn’t want to put Hoeber off; and Armstrong had seen the significance of Moore only on reading the notes. Thomas wondered why Woodward had not asked Hoeber about the story subsequently—as he easily could have, for example at the second of those “long dinners at the Hay-Adams.” Woodward said he did not want to queer his relationship with Hoeber. Thomas also asked why the notes were altogether so cryptic. Woodward said you know how it is, you type your notes later.
So much for the “fact” proclaimed in paragraph 1 of the Woodward-Armstrong letter that Hoeber was their “original source.” When Woodward floated that notion in an interview in the Hartford Courant, Hoeber wrote the Courant:
“Woodward’s statement that I was the source is an outright lie. It is, moreover, a most implausible lie. Unlike nearly all other persons Woodward interviewed, I spoke to him not in confidence but on the record. For Woodward to claim that I—a former Brennan clerk with the greatest admiration and respect for the Justice, and one speaking on the record with every expectation of being quoted by name—would tell such a story is plainly incredible.”
The paragraph numbered 2 in the Woodward-Armstrong letter is one of the most revealing: inadvertently. They say I did not know about the Brennan clerks’ letter to the Washington Post, and its withdrawal. I did. Hoeber read the letter to me when I first telephoned him last December. As to the withdrawal, I am surprised that Woodward should want to call attention to what happened.
The Brethren says, in its discussion of the Moore case, that one of Brennan’s clerks “went to talk to Brennan and, thirty minutes later, returned shaken. Brennan understood that Marshall’s position was correct, but he was not going to switch sides now, the clerk said…. Brennan felt that if he voted against Blackmun now, it might make it more difficult to reach him in the abortion cases or even the obscenity cases.”
That is the passage that outraged the four Brennan clerks of the 1971 term. On December 11, they delivered to the Washington Post a letter saying that one of them (Hoeber) had discussed the case with Brennan but that Brennan had “never suggested in any way that he regarded his vote in Moore as incorrect—on the contrary, he told his clerk that it was right—or that it had anything whatever to do with Justice Blackmun’s position in…other cases.”
The next day, December 12, Woodward telephoned Hoeber and said he had seen the letter. Hoeber made notes of the conversation:
Woodward said the Brennan clerks could not say the story was false. Hoeber replied that it certainly was false—Brennan had never said those things to him. Woodward responded that the book did not say Brennan had told Hoeber those things. Hoeber was astounded. He asked how the sentence in the book starting “Brennan understood…” and ending “…the clerk said” could be read in any way except as a reflection of his talk with the justice. Woodward replied that they had other sources, that Brennan had talked to other people, so the letter from the Brennan clerks was beside the point.
Hoeber’s account of the telephone conversation continues:
“I asked him why he didn’t run this story by me. He said that I knew what it was like trying to figure out something that had happened years earlier. I said again that the story was false, and he asked, wasn’t there a lengthy meeting between Brennan clerks and Marshall clerks? I said no, there wasn’t. (I should have let him go on with his questions, but I cut him off.) I told him that I wasn’t shaken. He just laughed. I then said I wasn’t shocked. He said, you were shocked, everybody was shocked, it was a shocking decision….”
After the call Hoeber immediately talked with his co-clerks. They thought Woodward’s call was an attempt to frighten them out of criticizing that passage in the book. They did not want their letter to appear as written, because they reasoned that Woodward and Armstrong would say what Woodward had just said: that they had other law-clerk sources. The Brennan clerks therefore withdrew the letter. But they did not go quietly away. They began telephoning around to all the other law clerks of the 1971 term so they could make a more inclusive statement. That was the process into which I stumbled when I telephoned Hoeber. He told me about the survey he and his co-clerks were making, and I noted in my review their statement that they had reached twenty-nine of the thirty 1971 clerks and found none who supported the story in The Brethren. That does not exactly constitute a craven withdrawal by the Brennan clerks.
A Burger clerk that term, William B. Elmore Jr., in telling me that he knew “absolutely nothing” to support the Moore charge, added that “the Brennan clerks are the ones who matter. They’re the only ones who would have talked with him.” The four Brennan clerks have denied the story as forcefully as it is possible for anyone to deny such a charge. I have quoted Hoeber and Ashworth, the only two who actually spoke to Justice Brennan about the Moore case. Robert B. Miller also went on the record to deny any knowledge of such an event. Gerald Goldman said: “Everything I know tells me the Moore story is utterly false. It’s incredible. I’ve seen nothing worth putting any weight on in that story, yet here are two authors from whom one would have expected better. I really think they blew it.”
A word should be said about Paul Hoeber. It happens that I have never met him. But his honor and veracity have a certain support. He worked in the office of the Watergate Special Prosecutor—but resigned when Richard Kleindienst was allowed to plead guilty to a misdemeanor instead of facing a felony charge of perjury for his testimony on the ITT case. He now teaches law at the University of California, Berkeley. I have found him completely candid. When I first telephoned him in December, he told me all about his conversations with Woodward (so I could not have known the non-fact asserted in the paragraph numbered 3 in the authors’ letter). And as I talked to others who knew him, I kept running into unprompted testimonials.
Larry Hammond, the Powell law clerk, worked closely with Hoeber in the Special Prosecutor’s office. When I talked with him, he suddenly said: “I don’t know any time in the time I’ve known Paul when he has not told the exact truth as he remembers it. If somebody had asked me to come up with a list of the three law clerks who were the most honest or had the highest integrity, he would be one of them. He is a very blunt, straight-forward person. He does not shade the truth.” Richard Danzig, a law clerk to Justice White, said: “I can tell you that Paul Hoeber is an extremely conscientious person.” George T. Frampton, Jr., a Blackmun clerk, said it was “implausible” that Justice Brennan would tell a law clerk “he was acting out of corrupt motives—and particularly Paul Hoeber, because he is a person of very strong integrity.”
Very likely the facts that a survey of thirty law clerks shows no evidence for their story, that serious people respect Paul Hoeber, and so on will not impress Bob Woodward or Scott Armstrong. They believe that there is a conspiracy to defile their best-selling book; and the more people agree that their Moore story is preposterous, the more sign there is of the conspiracy. I say that because the authors have made so clear their feeling that they are the victims of an establishment cover-up.
Woodward said of A.M. Rosenthal, executive editor of The New York Times: “Abe Rosenthal is apopleptic about this book. The New York Times deals with that version of reality that the leaders of our hallowed institutions want to convey. It’s disgusting.” When Professor Paul Freund of Harvard gently criticized The Brethren, Armstrong asked: “Is Freund incredibly out of touch with reality, or is he part of the lawyers’ cover-up of the Supreme Court?” Woodward told the Legal Times of Washington: “We knew the legal establishment wouldn’t like this book, but there’s going to be a big backlash to this conspiracy of silence. It all speaks very ill for the legal profession.”
The funny thing is that some people who are highly critical of the present Supreme Court think Woodward and Armstrong have destroyed the possibility of doing a serious appraisal of its methods and intellectual premises. For example, George Kannar, a staff counsel of the American Civil Liberties Union, wrote in the Columbia Journalism Review that they had created “a new sub-genre: fictionalized analysis.” He said “such an easily discredited effort as The Brethren may only succeed in shrouding the retrogressive Burger Court—and the legal profession generally—in more obscurantist rhetoric than ever.”
Woodward and Armstrong cannot even accept compliments for parts of their book without suspecting a trick. Was it a coincidence that Justice Brennan was on the winning side of those cases? Yes, Bob and Scott, it was; the thought had not occurred to me, and it is irrelevant.
Conspiracy theory is apparent also in the suggestion that I am motivated by friendship with Justice Brennan in my criticism of the book. I know him, and I wish I could claim intimacy. But the authors apparently cannot understand that there are journalists who detest baseless charges whoever may be their victim. In the 1950s I wrote a good deal about the terrible injustices of the Loyalty-security program, to persons unknown to me; one magazine piece was headed “Victim of Nameless Accusers.” The point was that people should not lose their jobs, their reputation, whatever, on the basis of charges by unidentified accusers—because, among other things, such charges usually turned out to be false when exposed to the light. I believed in due process of law then, and I still do: even for judges.
In 1952, while working in the Adlai Stevenson campaign, I drafted a reply to a speech by Senator Joe McCarthy. It was hard to disentangle assertion and fact, half-truth and fiction. Reading the Woodward-Armstrong letter reminded me of that experience. Of course it is not so extreme, but there is the same making of assertions and then, later, the use of those unproved assertions as if they were established truths.
There is a nice example when the authors ask, in their letter, “is it more likely that Hoeber was accurate in 1972 when he reported Brennan’s reaction to others at the Court…?” The casual reader might just let that slip by, not stopping to realize that the authors produce no evidence of Hoeber reporting the alleged Brennan reaction to anyone; in fact those concerned all scorn the suggestion.
Richard Rovere caught a particular trait of Joe McCarthy’s that I think these authors possess, too. He would attack someone and then expect that person to remain on friendly terms; he wanted to be loved even by his victims. Woodward and Armstrong treat Justice Marshall in their book as lazy and ineffectual. But the Marshall law clerk with whose words this reply begins had a strange experience when Scott Armstrong telephoned after The Brethren came out.
“Unlike many others,” this law clerk says, “I didn’t mind the nit-picking errors. But I did mind the treatment of Justice Marshall, and I told him [Armstrong] so. According to Armstrong, they thought that Marshall was represented [in the book] as strong-willed, principled, well-prepared for argument and kind of decisive.”
A personal note: in June, 1978, the Legal Times of Washington ran a piece about the book on which Woodward and Armstrong were then working. The piece said that Woodward had referred “contemptuously and scatologically” to a book of mine on the Supreme Court, Gideon’s Trumpet, as Court-sanctioned public relations. Some time later Woodward telephoned me and said that, if I had seen the reference, he wanted me to know that he had said no such thing to the Legal Times and had the highest respect for my writing on the Court. He wanted me to advise them on their book, he said; would I please come and have lunch with them some day?
That was that. But recently I was talking to the editor of the Legal Times, David Beckwith, about its coverage of the Brethren controversy. He asked me whether I had seen the 1978 reference; I said that I had but that Woodward had called to say it was made up. Beckwith laughed and said that Woodward had made the comment to him, and he remembered it very well.
On January 16, 1980, after my review of the book appeared, Woodward telephoned me and talked for nearly an hour about the review. He was mild and gracious. “Your review is the most thoughtful,” he said. “You are a fair-minded person.” He again asked me to lunch. He also conceded some mistakes of fact or taste. They should not have referred to Justice Douglas’s incontinence after his stroke, he said. They should have cut out the sentence about Chief Justice Burger being “evil or stupid.” They should not have left the impression that Justice Brennan had talked to them or in any way been involved in the leak of documents from his files; he had not.
Woodward defended the Moore story as accurate. But he conceded, as he had to, that he had been wrong in saying that it was strange for Justice Brennan to be with the majority in Moore when it involved the principle of Brady v. Maryland and Brennan had written the opinion in that case; Brennan had not. (I did make the mistake in my review that the authors note, describing a Mississippi school case and then putting in parenthesis the name of another Mississippi school case. No excuses, but it was an error less serious than one vitiating a premise of the whole Moore story.)
A little later a reporter for the Los Angeles Times telephoned and said Woodward had told him of his call to me and indicated that I had been persuaded about the Moore story. I disabused him. In other speeches and interviews Woodward and Armstrong attacked me in four-letter words, which I thought good fun. I told the Legal Times that they might do better to write The New York Review of Books. They then did so, two months after my review appeared.
I am not a believer in conspiracies. I do not think that Woodward and Armstrong set out, with evil in their hearts, to misrepresent the Moore case. I think someone told them that Brennan’s vote was, as they say in their letter, “out of the ordinary”; when Woodward telephoned me, he used the word “unnatural.” Then I think they saw everything related to Moore in a light that would build up a sensational story, and they were so carried away that they ended up calling an utterly unremarkable decision “shocking.”
The most dispiriting aspect of their letter may be their failure to understand the point about four-letter words. Swear words are uttered in the Supreme Court as elsewhere. But what matters there is not the quality of the justices’ expletives but the quality of their reasoning. It would have mattered to race relations in this country not if Justice Brennan had said “You bet your ass” but if he had abandoned his commitment to equal rights, demonstrated in dozens of cases over twenty years.
But can The Brethren be trusted even on the trifling question of judicial swearing? The book describes a lunch during the Nixon tapes case: Justices Stewart, White, and Brennan with some of their clerks. In the car afterward, it says, Stewart said that as a white man he would not want to be tried in the District of Columbia, where juries are predominantly black—and Brennan commented, “You bet your ass.”
When the authors repeated that story in their letter, I decided to look into it. I talked with two people who were in the car. One said he had thought about it since the book but could remember nothing of that kind. The other, who was a law clerk to another justice than Brennan, said:
“I was in the car. Someone—it may have been a law clerk—said very casually and briefly, in the context of the Nixon case: ‘Whatever you think about the Nixon Administration, I wouldn’t want to be one of its officials—rich, white, and conservative—and be tried before a District of Columbia jury.’ I do not recall anyone saying ‘You bet your ass,’ and I think I would remember that. I do not recall any response at all from Justice Brennan.”