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Falls of justice: what happens when a biographer attacks his subject--and gets his facts wrong?

WILD BILL: The Legend and Life of William O. Douglas by Bruce Allen Murphy Random House, $35.00

TODAY, IT SEEMS, NO ONE MAY occupy high office without submitting his or her personal history to ongoing scrutiny of near-proctological thoroughness. (Just ask John Kerry.) And though such investigations are often justified in the name of the public's right to know, they can generate misinformation and myth as often as insight. In the 1990s, for instance, everyone "knew" that Bill and Hillary Clinton must have committed some sort of crime related to the Whitewater real estate deal--until, $70-million worth of independent counsel investigations later, it turned out they hadn't.

The Clintons were at least around to defend themselves. Many long-dead public figures have not been so lucky. They've had their personal lives exposed by gossipy, revisionist biographies that, while often providing illuminating and important information, also traffic in accusations that might or might not be true but become fixed in the public's mind. Everyone "knows," for instance, that former President Dwight D. Eisenhower had a long-term affair with his wartime assistant, Kay Summersby, thanks to accounts repeated in numerous books and articles. Yet there is almost no persuasive evidence that the affair ever took place, and plenty, including Summersby's own memoirs, that it didn't.

Of the overall generalization, Bruce Allen Murphy's biography of Supreme Court Justice William O. Douglas is a telling case in point. By any measure, Douglas's life is a worthy topic. He was only 40 when Franklin D. Roosevelt appointed him to the Supreme Court in 1939, after a corruption-busting stint as chairman of the Securities and Exchange Commission and a brilliant rise on the faculty of Yale Law School. Douglas served 36 years on the Court, longer than anyone else in history, and is remembered today as one of the court's more uncompromising advocates of free speech and individual freedom. His opinion in Griswold v. Connecticut, the 1965 case guaranteeing married people the right to obtain contraceptives, established the doctrine of privacy rights--those derived from what Douglas called the "penumbras" and "emanations" of more precisely enumerated rights in the Bill of Rights--that paved the way for Roe v. Wade.

Murphy's biography certainly reminds readers of the justice's accomplishments--but his exploration of Douglas's dark side is attracting the most attention. Murphy, the Fred Morgan Kirby professor of civil rights at Lafayette College, describes a jurist who, for all his humanitarian rhetoric on the bench, treated his own friends, family, and colleagues shabbily. His political and ethical judgments were questionable, or worse. He scandalized the capital with his multiple marriages to attractive younger women. His outspokenness on issues beyond the court's purview, such as his early advocacy of recognizing Red China and his opposition to the war in Vietnam, earned criticism from both Republicans and Democrats.

In Murphy's account, the mainspring of Douglas's public career was his aching, but never fulfilled, ambition for the presidency. (Murphy pauses to offer only a sketchy explanation of the origins of Douglas's liberal ideology: Why he became a Democrat at all, given his Western frontier origins, remains somewhat unclear in this account.) Aced out by Harry Truman for the 1944 Democratic vice presidential nomination--a prize even then seen as a ticket to succeed the manifestly ailing FDR--Douglas came to see himself as trapped in the Supreme Court, a "peripheral" institution, as he once described it, to which he devoted less than his best efforts.

Other than political ambition, the other great driving force in Douglas's life, as Murphy tells it, was plain lust. His four marriages were just the tip of a priapic iceberg; according to Murphy, Douglas spent his summers in the Cascade Mountains not only hiking but also drinking heavily and pursuing local women. In 1951, he finally decided to dump his long-suffering first wife, Mildred, for the newly divorced ex-wife of a congressman. The resulting settlement, engineered for Mildred by Douglas's own New Deal chum Tommy "the Cork" Corcoran, fully exploited Douglas's personal and political weaknesses, guaranteeing Mildred a huge and escalating share of Douglas's future earnings. This "financial noose," Murphy argues, explains why Douglas churned out so many books while on the court. He needed money desperately.

Douglas's constant scramble for cash set the stage for his closest brush with impeachment, in 1970. The main charges against him involved his receipt of almost $100,000 between 1960 and 1969 from the Las Vegas-linked Alfred Parvin Foundation, of which he was the only paid official. But the impeachment effort, spear-headed by then-House Minority Leader Gerald R. Ford, ultimately fizzled in the Democratic-controlled House.

Burial Rights

In his poor personal judgment, Douglas is reminiscent of another brilliant Democrat (or two) with a yen for the presidency and a weakness for women. But Murphy wants to do more than simply emphasize Douglas's already well-known character flaws. He also wants to unmask Douglas as a fraud--to show that key aspects of his persona, established in the public mind by Douglas's best-selling memoirs, were fabricated by the justice.

Douglas was, and still is, known as a man of the West, a poor kid who raised himself by his own bootstraps, rode the rails East, made himself a brilliant lawyer and then took on the powerful Wall Street interests. (These themes were sounded in his 1950 memoir, Of Men and Mountains, and repeated in Douglas's 1974 follow-up, Go East, Young Man.)

But according to Murphy, Douglas didn't overcome childhood polio, never served as an Army private in World War I, and didn't graduate second in his class at Columbia Law School. No, the justice's self-told story "was a lie--a secret until now," according to a press release from Murphy's publisher, Random House. It's a sensational claim, but can Murphy back it all up? After slogging through the book's 518 pages of text and its 195 pages of bibliography, footnotes, and index--and making a few phone calls to check some of his facts--I have my doubts.

Take Murphy's assertion that Douglas concocted his record of military service in World War I, and, in his later years, urged his family to use his phony status as a veteran to get him interred at Arlington National Cemetery after his death. This is a serious charge, as Murphy is aware. He draws a parallel between what he calls "the exaggeration of claims" by Douglas and the case of former U.S. ambassador M. Larry Lawrence, who was disinterred from Arlington in 1997 because his service record had been embellished.

Murphy writes that, at the time of Douglas's death in January 1980, burial at Arlington was reserved for those ex-servicemen who had received a Silver Star or higher medal, died on active duty, or served at least 20 years. Almost everyone else needed a presidential waiver. But Douglas's military service, Murphy writes, consisted of 10 weeks as a private in the now-defunct Student Army Training Corps (SATC) at Whitman College in Walla Walla, Wash.--and that "did not qualify one for burial in Arlington as a military figure" The Whitman SATC, Murphy writes, marched around campus without guns, boots, or uniforms, and Douglas was sidelined by influenza for much of the time. When uniforms finally arrived after the November 1918 armistice, Douglas suited up for a photo, but his military record, Murphy writes, shows that he was never actually inducted into the Army or honorably discharged.

Nevertheless, according to Murphy, Douglas schemed to gain access to Arlington. On June 28, 1977, Douglas wrote his wife Cathy, telling her "I've remembered that I would qualify for burial in the Arlington National Cemetery because I was in World War I" This letter, Murphy writes, shows that Douglas "wanted to be buried as a soldier"--and, furthermore, Douglas "knew he had an ace to be played." The letter urged Cathy to consult Douglas's friend, Democratic Party consiglieri Clark Clifford, about the matter, since "he knows all the ropes" Murphy explains: "If the king of the Democrats could not get this done during the administration of Democratic president Jimmy Carter, Douglas knew, then he was unworthy of the title."

But Murphy's account is premised on a misstatement of the eligibility rules for burial at Arlington that would have applied to Douglas, Under Sec. 553.15 of Title 32 of the United States Code, which was in force in 1980, when Douglas died, burial at Arlington is permitted to any former associate justice of the Supreme Court whose "last period of active duty (other than for training) as a member of the Armed Forces terminated honorably." Thus, all Douglas's family would have had to show was that he had once served on active duty in any branch of the military for as little as one day, and that he had an honorable discharge, according to Tom Sherlock, chief historian at the cemetery.

And, indeed, Douglas's papers, now preserved at the Library of Congress, contain a copy of a Dec. 10, 1918 document headed "Honorable Discharge from The United States Army." It refers to him as "William O. Douglas, Serial No. 5200182, Private S.A.T.C., Whitman College, U.S. Army" The document notes that Douglas was "inducted" in the SATC on Oct. 4. In short, it proves that the authorities of the day considered Douglas's stint in the SATC to have been a form of active-duty Army service, however brief.

Murphy says otherwise because he does not understand the legal and military status of the SATC. It was not, as he says, the World War I version Of ROTC, which was already in existence when World War I started. Rather, the SATC was a separate entity, devised by the War Department as a means to feed officer material into the rapidly mobilizing U.S. military. The SATC enrolled roughly 165,000 students at over 500 campuses nationwide between its first day of operation on October 1, 1918 and December 10, 1918, when it went out of business because of the armistice.

Murphy is surely right that the SATC was hardly a combat tour; it was mocked at many a campus with nicknames such as "Saturday Afternoon Tea Club" or "Safe At The College." Yet the U.S. government took the organization quite seriously. The Sept. 24, 1918 War Department regulations establishing the SATC, available from the US. Army Military History Institute at Carlisle, Pa., specify that "upon admission to the Students' Army Training Corps a registrant becomes a soldier in the Army of the United States. As such he is subject to military law and military discipline." The regulations also say that "Members of the Students' Army Training Corps will be placed upon active-duty status immediately."

To be sure, the SATC was, as its name suggests, a training corps, and the Arlington eligibility rules say that active duty must be "other than for training." But Arlington historian Sherlock said that this rule was "probably not" written with the obscure, long-defunct SATC in mind, and has generally been interpreted to refer to reservists whose only service consisted of weekend or summer duty. "Douglas had a federal service number which is honorable federal military service, and that's the only thing we'd look at," Sherlock said. "The key is not what we'd consider active duty service today, but that they did consider it active duty then."

In Contempt of Courtship

What, then, of Murphy's yarn about how Douglas urged his wife to have Clark Clifford put the fix in for him? Murphy offers no footnote to substantiate it; but the charge is illogical on its face, since Douglas knew he had honorable discharge papers from the Army and thus no need to pull strings. Even if Clifford were dispatched to negotiate some sort of special dispensation from the Carter White House for Douglas, this would have been no big deal. As Murphy himself acknowledges, Douglas "deserved to be buried in Arlington" because of his Supreme Court service--and presidential orders are one of the perfectly) legal ways prominent non-veterans may be buried in the cemetery.

In any case, Douglas did not insist that his wife pursue burial for him at Arlington. The June 28, 1977 letter to Cathy Douglas actually concludes: "But don't push it or worry about it because Yakima [Washington] or Goose Prairie would be fine with me." This sentence, unmentioned in Murphy's account, shows Douglas was also contemplating burial elsewhere. Five months after the letter to Cathy, he wrote to a minister friend, Edward L.R. Elson, telling him that "I hope to be buried next to my father in the church cemetery in Yakima, Washington."

To all this, Murphy adds the insinuation that Douglas sought to avoid military service in World War I. He did not enlist in 1917, Murphy asserts, because at the time he was younger than 21 and would have needed parental permission, which Douglas "knew" his overprotective mother would have surely denied. After the draft age was lowered to 18 in August 1918, when Douglas was almost 20, he joined the SATC. Murphy quotes one of Douglas's fellow SATC members as implying that they entered the outfit to avoid true military service. "We had to be there," Hallam Mendenhall told Murphy. "If we hadn't, we'd have been drafted."

How does Murphy know Douglas "knew" that his mother would stop him from joining the military in 19177 Answer: Murphy cites no source. As for Douglas's alleged use of the SATC to dodge the draft, Murphy's suggestions are based on the one quotation from Mendenhall, which, if you look at it closely, does not refer specifically to Douglas's motivation. Douglas's side of the story, though, is already on the record. He wrote in Go East, Young Man: "I never could have evaded military service. For I had a passionate love not only for the mountains, but for our nation and its institutions as well." This comment may be self-serving, but a fair biographer would have at least mentioned it.

Douglas's version, as told in Go East, Young Man, is that he wanted to join the Marines when the war broke out in 1917, but concluded that he couldn't leave his mother to fend for herself financially. In 1918, when his sister took over their mother's care, he felt free to try to get in. He tried to sign up for naval aviation, but was rejected due to color-blindness--an explanation Murphy actually confirms in a footnote. Later, he managed to get inducted in the ROTC, and spent four weeks, June 3 to July 3, 1918, training at the ROTC camp in San Francisco--a fact Murphy also acknowledges, deep within his footnotes, and which is additionally confirmed by a certificate from the ROTC in Douglas's papers at the Library of Congress. He then returned to Whitman, where he joined SATC--though in his memoirs Douglas himself mistakenly refers to it as ROTC. He claims that he was still waiting for orders to ship out to an Army camp when the armistice came.

Far from aggrandizing his role in the armed forces, Douglas writes of how chagrined he was when his Whitman unit's commander asked the group to parade through Walla Walla to celebrate war's end. "I was sad and embarrassed," Douglas wrote. "We were far from being heroes. We had never been under fire. We had never even heard the distant cannon roar."

The bottom line: Douglas did not rush to the front, for what may have been understandable family reasons. But neither did he shirk entirely. Rather, he engaged in a form of service which, while modest, contained at least the potential for more substantial duty, at a time when he had no way of knowing how long the war might last. His burial at Arlington appears perfectly in order, even if the words on his headstone "Private, United States Army," are true mostly in a legalistic sense. Perhaps his memoirs boasted a bit too much about his summer "drill[ing] and march[ing] in the uniform of the United States Army," but whose war stories haven't improved with the telling?

Robed Rogue

Perhaps in spite of its flaws, then, Murphy's account of Douglas's life does help us distinguish personal peccadilloes that should matter to the public from those that shouldn't. Douglas's financial woes and his resultant pursuit of outside earnings, for example, are legitimate subjects--even if, after checking the accuracy of Murphy's military-related accusations, I'm skeptical of his details in this regard. A good reason for the public to be concerned by a high official's sexual conduct would be that it could lead him or her into conflicts of interest, real or apparent. Douglas's divorces and their consequences left him inappropriately dependent on the kindness of strangers (and friends). This web of relationships was legal then--and, according to the clubby, pre-Watergate Washington norms in which Douglas was steeped, probably ethically in-bounds, too. There is no evidence that it ever changed his behavior on the court.

Still, there is a reason we've abandoned pre-Watergate norms in favor of more formal ethical laws and regulations: to preserve public trust in the integrity of high officials, an especially important consideration for judicial officers. It is no credit to Douglas that he was not ahead of his time in this regard. Indeed, under the post-Watergate rules that govern the current justices, Douglas's relationship with the Parvin Foundation would have been illegal and, possibly, an impeachable offense. Moreover, prevailing norms at the court today would preclude the kind of outspoken political advocacy Douglas engaged in. When a person's private problems actually render him vulnerable to financial impropriety, real or apparent, they become of public interest. But minor resume-inflators should be allowed to rest in peace.

CHARLES LANE is the Supreme Court reporter for The Washington Post.
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Author:Lane, Charles
Publication:Washington Monthly
Article Type:Book Review
Geographic Code:1USA
Date:Apr 1, 2003
Words:2948
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