The Brethren by Bob Woodward, Scott Armstrong Page A

conservative vote that might help him shift the Court's direction. He blamed the White House for mishandling the nomination. Haynsworth was a victim of Washington's "jungle" politics, Burger told his clerks. While he himself knew how to operate in that jungle, the hapless Haynsworth, Burger said, simply did not. He had not performed well at his hearing before the Senate Judiciary Committee. That had done him in.
    Brennan, though he held out little hope that Haynsworth would share many of his views, had thought him nevertheless an acceptable candidate. Just after the nomination was announced, Brennan had sent Haynsworth a congratulatory note. Black also felt the Senate had made a serious mistake in rejecting Haynsworth. He told friends he thought Haynsworth was a "decent man" who would make a fine Justice. He was fond of him. The night the nomination was defeated, Black had him over for dinner at his house on Lee Street.
    For the Court, the defeat meant more months without a ninth Justice. Numerous petitions for Supreme Court review were pending. Four votes were needed before the Court would take a case, and dozens of cases were on hold because they had only three votes. They had been put in a "hold for Haynsworth" file, to see if he would cast the fourth vote. Now the file was renamed "Hold for Justice X." The number of petitions waiting there grew each day.
    Harlan had looked forward to Burger's arrival, and the first Friday conferences since he had come seemed more open. Everyone spoke more freely, more persuasively. There was not the sense, as there had been at times under Warren, that the debate was a sham. The Warren-Brennan pre-conference strategy sessions, during which the two Justices coordinated their positions, were things of the past.
    Harlan thought it possible that if Burger and the new Justice were independent and open to reason, new majorities might emerge once Fortas's seat was filled. Harlan despised coalitions, revering reasoned discourse among independent Justices. But in the first months of Burger's tenure, the new Chief gave Harlan reason to pause. Harlan confided to his clerks that Burger seemed inclined to slide around issues in order to achieve certain results. He paid less attention to legal reasoning than Harlan thought necessary. He was willing to decide cases without explaining the logic or the Constitutional grounds, and without responding to each argument he had rejected.
    Harlan did not believe that the Court should reach out to decide questions that were not specifically before it in a case. But at the same time, the Court had to address issues that were fairly presented. When faced with one of the numerous statutory cases, those calling upon the Court to interpret the meaning of a law or to establish the intent of the Congress that had passed it—the Court should not avoid its responsibility. In one such case (Tooahnippah v. Hickel), the issue was whether the Interior Department had the power to invalidate an American Indian's will leaving personal property to his niece and nothing to an illegitimate daughter. The vote was 7 to 1 to reverse the Interior Department's action, with Black the lone dissenter. Burger assigned himself to write the opinion for the majority. The case was a "peewee," Harlan's term for insignificant matters that came before the Court, but he objected to the Interior Department's high-handed paternalism.
    When the Chief's first draft came around, Harlan discovered that Burger had limited himself to the question of whether the federal courts had either the jurisdiction or the power to review an order of the Secretary of the Interior disapproving an Indian will. The Chief had not decided the question of whether the Secretary of Interior had properly exercised his power. Instead, the case was remanded—sent back—to the Court of Appeals for decision. Harlan was distressed that Burger would dispose of a case without addressing all the basic questions. The case might be a