A Well-Paid Slave (15 page)

Goldberg's ability to mediate disputes was a valuable skill for someone who must persuade four other justices to join his opinions. He wrote several important decisions, including
Escobedo v. Illinois
, which overturned a murder conviction because the confession was obtained after the defendant's request for a lawyer had been denied.
Escobedo
established a right to counsel at the interrogation phase of a criminal case, which led to the famous Miranda warnings.

Goldberg reveled in the law's doctrinal intricacies. For Goldberg, the law was a religion consisting of a search for Talmudic truths; the justices were the rabbinical scholars. The rituals and formality of the Court appealed to a man who wore a three-piece suit to work every day. “He was happy on the Court; indeed, he was in his element,” wrote Stephen Breyer, a former Goldberg law clerk who later became a Supreme Court justice. Dorothy Goldberg wrote that her husband's “three years on the Court were like three days.”

But as much as he loved the law, he had trouble adjusting to the slow pace of life as a Supreme Court justice. “The [labor] secretary's phone rang all the time,” he said. “The justice's phone never rings.” Goldberg and his wife adapted to their more insular lifestyle by socializing with the other justices and their wives. The Goldbergs became close to the Blacks, the Warrens, and the Brennans.

In July 1965, Goldberg made the biggest mistake of his life. He listened to the pleas of President Lyndon Johnson. Johnson yearned to put his friend and closest adviser, Washington lawyer Abe Fortas, on the Court. The president also needed a new ambassador to the United Nations after Adlai Stevenson's death. John Kenneth Galbraith, a Harvard economist and former ambassador to India who wanted no part of the UN job, fed Johnson rumors that Goldberg was “bored” on the Court. A week earlier, Goldberg had given a speech at Harvard Law School and confided to Galbraith about his difficult adjustment to the slower pace of life as a justice (Goldberg later denied to journalists, historians, and even Johnson himself that he was ever bored on the Court or had any desire to leave).

Johnson seized on Galbraith's information to cajole Goldberg into one of the quickest exits in the Court's history. Three days after Steven-son's death, Johnson called Goldberg to the White House. While Goldberg waited outside the Oval Office, Johnson aide Jack Valenti offered him the post of secretary of health, education, and welfare. Earlier that year, Johnson had offered Goldberg the job of attorney general. “I'm not an applicant for any post—including the U.N. one,” Goldberg told Valenti. In the Oval Office, Johnson reviewed a list of more than 20 potential candidates for the UN post with Goldberg, but both men knew why Goldberg was really there. Johnson wanted Goldberg. Two days later, Goldberg flew with Johnson to Stevenson's funeral in Blooming-ton, Illinois, aboard Air Force One. During the plane ride home, Johnson pushed all the right buttons. He appealed to Goldberg's patriotism. The nation was at war in Vietnam; his country needed him. A former member of the Office of Strategic Services (OSS) during World War II, Goldberg was proud of his wartime service and even prouder of being an American. As the son of Russian-Jewish immigrants and the embodiment of the American dream, he felt that he owed his country. Johnson appealed to Goldberg's ego. Only someone with Goldberg's negotiating skills could end the Vietnam War. Johnson said he was serious about peace; Goldberg could get the credit for making it happen. Finally, Johnson appealed to Goldberg's ambition. If Goldberg could end the Vietnam War, he might be named secretary of state or even replace Hubert Humphrey as Johnson's next vice president. And if Goldberg were vice president, he might even become the first Jewish president of the United States. That night, after they had returned to Washington, the president called George Washington University Hospital, where Goldberg was visiting his ailing mother-in-law, and officially offered him the job. For the rest of his life, Goldberg would answer questions about why he had left the Supreme Court after just three years. He gave up his dream job for God, country, and a political pipe dream.

Goldberg's three years at the UN aged him 30 years. Referring to the UN's 117 member countries, Goldberg said he felt like “a lawyer with 116 clients.” The real problem was the 117th client at home. On the Vietnam War, he was a dove in a presidential administration dominated by hawks. Syndicated columnist Joseph Alsop speculated that Goldberg would temper his views in order to preserve his vice-presidential chances. Alsop could not have been more wrong. In cabinet meetings and confidential memos, Goldberg made a persistent and persuasive case to halt the bombing in Vietnam and negotiate a settlement. Johnson, however, had no intention of pulling out of Vietnam without a victory and continued to escalate the war. Goldberg believed that Johnson froze him out of strategy sessions and kept key memos from him. The more correct Goldberg's assessment about Vietnam proved to be, the more Johnson hated him for it. As early as December 1967, Goldberg considered resigning. The last straw was Johnson's decision to leave Goldberg out of the Vietnam peace talks.

On March 31, 1968, Johnson publicly announced that he would not seek reelection and privately told members of his cabinet that he would understand if they decided to resign. On April 23, Goldberg submitted his letter of resignation before the entire cabinet. Two days later, Johnson accepted it. It was not a warm good-bye on the part of either man. “I don't want the impression to be created that I am hanging around for a Supreme Court appointment,” Goldberg told the president and his cabinet. “This is not good for the country, the President, nor is it personally dignified for me.”

Although Goldberg denied that he had made a deal with Johnson to return to the Court, some Goldberg intimates believe that Johnson promised to reappoint him as chief justice. Ten days before Johnson announced that he would not seek reelection, Chief Justice Earl Warren had summoned his close friend Goldberg to his chambers. Warren had not even told his wife yet, but he was planning to step down from the Court. He wanted Goldberg to replace him. Goldberg was moved nearly to tears and urged Warren not to resign. Warren, however, had detested Richard Nixon since their days in California Republican politics and did not want Nixon appointing the next chief. Goldberg's wife told him that even if “nothing later may measure up to the Supreme Court experience you have had, you still have a treasure in this to remember—that the Chief should have come to you and said I know no other man who should be the Chief Justice of the United States.”

Goldberg knew that there was no way—particularly after his latest get-out-of-Vietnam memo to the president, Secretary of Defense Clark Clifford, and Secretary of State Dean Rusk—that Johnson was going to name him chief justice. Syndicated columnist Drew Pearson lobbied Johnson to nominate Goldberg. Johnson told Pearson that the country was not ready for two Jewish justices (Abe Fortas had filled Goldberg's “Jewish seat”). Goldberg, who reminded his wife that two Jewish justices, Louis Brandeis and Benjamin Cardozo, had served on the Court together during the 1930s, was so incensed that he wanted to confront the president: “I'll ask him where the Constitution says the country has a god-given right to have seven Protestants on the bench but only one Catholic [William Brennan] and one Jew?”

After Warren announced his retirement in June 1968, Johnson tried to replace him with Fortas. Fortas's nomination as chief justice failed because of Johnson's lame-duck status, anti-Warren Court sentiment, and a financial scandal that eventually forced Fortas to resign from the Court. Fortas had lied about agreeing to a $20,000-a-year lifetime salary to serve on a foundation started by financier Louis Wolfson, who was convicted of securities fraud (Goldberg had turned down a similar offer from Wolfson after leaving the Court for the UN). After Fortas resigned, Johnson asked Goldberg about nominating him as a recess appointment (when Congress was out of session). But Johnson changed his mind after his staff discovered the president had spoken out against recess appointments. He later recommended that his successor, Richard Nixon, nominate Goldberg instead. There was no chance of that happening; thus Goldberg was forced to return to private practice, making him available to Flood.

For Miller, having a former Supreme Court justice take on Flood's case accomplished several goals. It let the owners know that the players meant business. It attracted media attention. And it gave Flood a better chance to persuade the Court to hear his case.

For Goldberg, the Flood case was a chance at redemption. He could match wits with the nine men on the Court, remind the country that he was one of its brightest legal minds, and justify why he still carried himself like a Supreme Court justice.

Since leaving the UN and joining Paul, Weiss, Goldberg had championed several left-wing causes. In July 1969, he won a federal appeal of Yale chaplain William Sloane Coffin Jr.'s conviction for conspiring to aid draft resisters. He took on a massive land rights case involving Alaskan Indians. And he co-chaired a committee to investigate the numerous police clashes with the Black Panthers.

Goldberg grasped the moral implications of Flood's lawsuit. As a Chicago lawyer in December 1946 and January 1947, Goldberg had litigated a similar dispute involving professional basketball's first giant, George Mikan. A bespectacled 6-foot-9 All-American at DePaul, Mikan signed a professional contract with the National Basketball League's Chicago American Gears. On December 11, 1946, Mikan quit the team after its first home game because of a contract dispute. Mikan, who was pursuing his law degree at DePaul, claimed that the American Gears had reneged on an oral agreement to pay him an additional $25,000. His five-year contract paid him $7,000 a year. The team also agreed to pay him a $50 weekly salary to work in its legal department, $5 for each basket, $2 for each free throw, and an insurance policy equal to his salary. Publicly, the American Gears boasted that Mikan's contract was worth $60,000. Privately, the owner of the team asked him to take a pay cut. Mikan was also upset about the way the team was being run: Mikan's brother, Joe, was one of four players cut at the train station just before the team left for an eastern road trip, and the head coach did not show up for the team's first home game.

The day after Mikan quit the team, Goldberg filed a declaratory judgment action seeking to void Mikan's contract and declare the star center a free agent. He argued that the contract was invalid because it was unilateral or one-sided—the American Gears could release Mikan at any time, but the player was not allowed to quit and join another team. The American Gears also were under no obligation to pay Mikan if they went out of business, and could assign his contract to another team. As proof of the contract's invalidity, Goldberg's brief cited two pre-
Federal Baseball
cases in which the owners were unable to enforce the reserve clause and prevent stars Napoleon Lajoie and Hal Chase from jumping to rival leagues. The Cook County judge never ruled on the issues. After six weeks of legal wrangling, Mikan and the American Gears settled their differences on January 28; three nights later, he returned to the team.

Thanks to the Mikan case, Goldberg arrived at breakfast with Miller and Moss armed with a firm understanding of the reserve clause. A former Wrigley Field stadium vendor, he had sold coffee at Prohibition-era Chicago Cubs games. His allegiance to the Cubs notwithstanding, Goldberg saw the need to challenge the lifetime ownership of players. As a labor lawyer and a leader of the Warren Court's rights revolution, he was outraged.

Goldberg regarded this as “an important case in principle” and offered to take the case without collecting his hourly fee. He asked only that the Players Association pay his expenses and the hourly fees and expenses of the other partners and associates on the case. “Arthur Goldberg for expenses!” Miller wrote. “That was like Sandy Koufax pitching for pass-the-hat.”

Goldberg's giveaways infuriated his Paul, Weiss partners. He frequently brought in high-profile clients and, without consulting his partners, grandly announced that he would not collect his hourly fee. Goldberg did not work for the American Civil Liberties Union or the government; he worked for a large New York law firm. He insisted on riding in a chauffeured limousine to and from work. He retreated to a 28th-floor Park Avenue corner office and collected a mid-six-figure salary. His salary derived from the billable hours of his fellow partners and associates whether or not he charged for his own time.

A few days after Flood had addressed the Players Association in Puerto Rico, he flew to New York with Allan Zerman to meet Goldberg. Flood was nervous about making a good first impression on a former Supreme Court justice. What should he call him? Your Honor? Mr. Ambassador? Mr. Justice? Mr. Goldberg? He was so nervous that he was afraid he was going to bungle Goldberg's last name.

Flood was in awe of Goldberg even though there was nothing physically imposing about him. The former justice was 5 feet 9 and 150 pounds, with a double chin, wavy white hair, and thick black plastic glasses. Nor was his gray and white corner office very intimidating. The blond wood and modern furniture—a couch, a glass table, and a few armchairs—were more befitting a Hollywood studio executive than a former justice. Goldberg nonetheless made a good first impression on Flood. “When he talks about legal ideas and his business,” Flood said, “he becomes 6 feet 8. His office on Park Avenue looks like Busch Stadium.”

Goldberg put Flood at ease by asking factual questions about the case. Goldberg alluded to his experience with the issues. He raised many of the same concerns as Miller and the player representatives. He reiterated the difficulties of persuading the Court to hear a case about an issue it had decided two previous times. He wanted Flood to know that they faced long odds and that Flood had little to gain even if they succeeded.