Master of the Senate (190 page)

“I
BELIEVE THE BILL WAS STRENGTHENED
” by the amendment, Lyndon Johnson told reporters after the vote. It had not been strengthened, of course, but weakened, weakened quite drastically. No longer would it provide legal recourse for black Americans who were forced to attend segregated schools, to sit in segregated sections of movie theaters, or to take their meals at the back door of restaurants (nor, for that matter, would it provide recourse for a black woman who was forced to “squat in the road to pee”). The two Negro leaders who had roamed the Capitol’s corridors for years lobbying for civil rights understood the import of what had happened. Roy Wilkins and Clarence Mitchell had sat in the Senate gallery a week earlier as Virginia’s apple-cheeked racist had shaken his fist at them and insulted them, and now Harry Byrd and his allies had won again. Before the vote, Wilkins had telegraphed senators whom he considered “on the fence” on Part III that a vote to remove it would be “impossible to forget and difficult to forgive,” but many of those senators nonetheless had voted to remove it. Now, from the Washington headquarters of the NAACP, Wilkins issued a statement: “The adoption of this motion [amendment] says plainly to Negro Americans that, so far as the Senate is concerned, they can expect little, if any, assistance from the federal government in attempts to win the enjoyment of their constitutional rights.”

White men who had fought for civil rights in the Capitol understood, too. “This is not a compromise,” said Senator Joseph S. Clark of Pennsylvania. “It is an abandonment by the Senate of the United States of all effort to assist in the enforcement of the equal protection of the laws clause of the Fourteenth Amendment.”

Liberals knew whom to blame for the removal of Part III. Roy Wilkins said simply: “He won. We didn’t.” The “he” was Lyndon Johnson. Joe Rauh was enraged every time Johnson told him that Part III had to go because “otherwise you’ll have a filibuster.” “The filibuster rule gave him a defense against
the liberals,” Rauh says. “He [Johnson] would say, ‘I got you all I could.’” But, Rauh says, if Johnson had helped at the beginning of the session, they could have changed Rule 22. It was his tabling maneuver that had prevented the change—and preserved the filibuster—in January. “So he beats us down on the filibuster rule, and then he says, ‘You can’t have Part III because you can’t beat a filibuster.’ Pretty shabby stuff.”

Gerald Siegel absorbed some of their anger: Johnson’s aide was to remember Paul Douglas, after the vote, “almost literally grabbing me by the arms and shaking me, and saying, ‘Gerry, you’ve gutted the civil rights bill. I hope you’re happy.’ That’s how high the feelings were—‘
I
had done it’—that’s how angry people were when Title III came out of the bill, which had to come out or the bill wouldn’t pass.”

One of the journalists in the Senate Press Gallery during the civil rights debate had been Murray Kempton, and what he watched on the floor below him filled him with disgust. “No single body in the Western Hemisphere has done more to abuse human liberty than the United States Senate in the last 10 years; and no member of that body is entitled to discuss the rights of man without apology,” he wrote. “The sight of the Senate immunizes one against the feeling that there is any blood in any issue which comes before it. Collectively if not individually, the Senate of the United States is beneath the contempt of men of taste.” Not one senator “bothered to protest that ‘Gold Dust twins’ crack,” Kempton wrote. Not one senator suggested defending the NAACP. But, he wrote, “the NAACP is the agency of Willie Mays, limping and hitting a triple in the All-Star game, of Ella Fitzgerald singing the Cole Porter songs, of Autherine Lucy walking through the rocks into class at the University of Alabama. Name me not three, but just one senator in their class.” No one was going to remember the name of any of those men on the Senate floor, he wrote. “I will read to our children the names of every child born in Georgia in the last 40 years, and I will tell you now that they will recognize only the names of Ralph Ellison and Willie Mays and Hank Aaron. They will not know Harry Byrd…. Who did Mississippi put out lately that William Faulkner could talk to, except Richard Wright. It is people like these who are the legislators of mankind; they are more to the point than any senator can be.” And the Senate’s Majority Leader, whose allegiance to civil rights Kempton described as being as lukewarm as Karl Mundt’s, was not exempt from Kempton’s contempt—far from it. Our “children’s children’s children” will remember poets, he wrote; “they are unlikely to remember Lyndon Johnson.”

In their fury, however, the liberals were ignoring an essential fact. Although the civil rights bill had indeed been weakened, even gutted, nonetheless it was still a bill. It had not been killed by a filibuster. It was on the floor of the Senate.

And the bill was still alive because of Lyndon Johnson. At the moment when he had walked over to Clint Anderson’s desk, the bill was stalled dead in
its tracks, seemingly beyond hope of rescue, about to die, as so many civil rights bills had died before it. The full-fledged filibuster that would spell its death might begin at any minute, thanks to the importunate Knowland and his constant threats to demand a vote. Southern anger, held in check for weeks by Russell, was on the verge of boiling over. Compromise seemed impossible. Seeing, in Anderson’s amendment, the weapon that could break the impasse, Lyndon Johnson had seized that weapon, and wielded it. Equally important, he had wielded it decisively, in the instant it came to his hand. He had had to wield it at that instant—at any moment, the opening it gave him might have disappeared; the focus might shift to some other amendment that would divide the Senate even more irreparably than it was already divided. The mood on the floor, already growing more bitter by the minute, might grow so bitter that
no
compromise would be accepted. By seeing the opportunity, seizing it, and making the most of it, Lyndon Johnson had turned the tide. He had gotten the South the support it needed to remove an important element of the bill, but because he had done so, the South had not killed the bill. Thanks to him, it was still alive.

I
F ONE ASPECT
of legislative leadership is a talent for compromise, for determining the essence of different points of view (what Lyndon Johnson called “listening”), and then for composing those differences—locating a common ground, and then, through negotiating, bringing both sides to that place—there is another aspect of legislative leadership that is also a form of compromise, but on another, higher level, for there are cases in which listening and reconciliation cannot help, cases in which the differences between the two sides are so deep that no meeting place can be located, for no such place exists. For legislation to be enacted in such cases, it is necessary for a legislative leader to
create
a common ground. It was this rare creative ability that Lyndon Johnson was going to have to demonstrate if, after eighty-two years, a civil rights bill was finally to be passed, for, with the month of July, 1957, drawing to a close, it was becoming increasingly obvious that all the compromises and deals that had been hammered out in seven months of negotiations had only brought the two sides to an impasse at which no compromise seemed possible. What he had done on Part III had been very hard. What he had to do on Part IV was harder. From the moment Brownell’s bill had been introduced, southern outrage had focused not only on the broad, sweeping powers it conferred on the Attorney General—the powers embodied in Part III—but on a single specific phrase used not only in Part III but in Part IV, which dealt solely with voting rights: in both parts, the Attorney General was empowered to initiate actions, including applications to judges for injunctions, “in the name of the United States.” Under existing federal law, a person who violated a judicial injunction and was cited by the judge for criminal contempt was entitled to trial by jury except “in any suit or action brought or prosecuted in the name of the United States,” and the South therefore contended, as Senator Sam Ervin of North Carolina put it, that “the only reason this bill provides that these actions shall be brought in the name of the United States is so that those involved in civil-rights cases can be robbed of their right to trial by jury.” The South had insisted that the act be
amended to guarantee that right to defendants in civil rights cases. In its original form—when it included Part III—the bill would have allowed the Attorney General to ask for injunctions against violators of many types of civil rights. Now, with Part III gone, the bill covered only one civil right, voting, but the southern senators still insisted that the bill include a jury trial amendment—an amendment providing that any person who, in the Attorney General’s opinion, “shall intimidate, threaten or coerce … any other person for the purpose of interfering” with his right to vote, and against whom the Attorney General moved in either a criminal or a civil injunction proceeding, should be entitled to trial by a jury of his peers. There were political reasons for such insistence, as George Reedy notes. If the bill included that amendment, “Southern senators could tell their constituents that … they had added jury trials so that no southerner could be jailed as a ‘criminal’ at the whim of a federal judge” (and those constituents could, of course, be confident also that there was little chance of a southerner—a white southerner—being jailed by a southern jury). But constitutional and moral considerations also militated for its inclusion: so integral to the American concept of freedom was the right of the accused to trial by jury that it had been incorporated in the Bill of Rights; it was as sacred to Americans as the right to vote.

In one area of the country—the West, where judges had broken the great railroad strikes at the turn of the century by the arbitrary use of injunctions and jail terms against strikers—the right to jury trial had special resonance, and a jury trial amendment to the civil rights bill had been drafted by a western senator, a senior senator who as a junior senator two decades earlier had demonstrated a particular susceptibility to constitutional and moral considerations.

Seventy-two-year-old Joseph C. O’Mahoney of Wyoming was in a way the embodiment of senatorial resistance to unwarranted expansion of executive authority. A small man with large, bushy eyebrows and a large, “crowd-challenging” voice, the Wall Street-hating Populist had been an eloquent, even impassioned, supporter of the New Deal after he arrived in the Senate in 1934. When Franklin Roosevelt’s 1937 court-packing proposal came before the Judiciary Committee, however, O’Mahoney had been noticeably silent. The White House, noting that he would shortly need Administration help on a bill vital to Wyoming, was confident that, in the end, he would come around, but after a while an Administration representative had had an intermediary telephone O’Mahoney in his rooms at Washington’s Wardman Park Hotel to make sure he was in line. O’Mahoney thereupon telephoned the Administration’s man directly. He was sorry that there seemed to be some doubt about his views on the President’s court bill, he said; he was calling to remove those doubts. The bill, he said, was “undemocratic,” “obnoxious,” and an “insult to the Senate.” It would violate the constitutional separation of powers. He would never vote for it. And when some Democratic colleagues on Judiciary suggested killing the bill by simply not reporting it to the floor—thereby saving as much Administration
face as possible—O’Mahoney demanded that it
be
reported, together with a recommendation that it be defeated. He wrote the recommendation himself. Roosevelt’s bill, it said, “is a measure which should be so emphatically rejected that its parallel will never again be presented to the representatives of the free people of America.”

Now, in 1957, O’Mahoney felt that Brownell’s bill violated the constitutional guarantee to jury trial. While the fight on Part III had still been raging, he had drafted and on July 8 had sent to the desk a brief amendment adding to Part IV a guarantee of a jury trial for defendants in civil rights cases, and had announced that he was going to fight for that amendment. The bushy brows were white now, the challenging voice a little gravelly with age, the name of his hotel had been changed to the Sheraton-Park, but O’Mahoney still lived in the same suite there, and while the voice was hoarse, the words it spoke were still eloquent, and, with his seniority and his passionate independence, this “spirit out of the Senate past” was to some extent the spiritual leader of the younger Democratic liberals from the West. Even while attention had still been focused on Part III, the jury issue was bubbling up below the surface, and it reinforced the alliance with the South that had already been forged among the western senators by Hells Canyon. A jury trial amendment was part of the South’s price—its rock-bottom, non-negotiable price—for not filibustering. And in its fight on this issue, the South would not have to stand alone.

But if the South would not, could not, compromise on a jury trial amendment, compromise was not an option for its opponents, either. The acquittal of Emmett Till’s murderers was only one of hundreds of verdicts that documented the prejudice of southern juries; not two months earlier, two white men who had confessed to bombing Negro churches and ministers’ homes in Montgomery had nonetheless been given a trial. The defense attorney had waved the banner not of innocence but of segregation—“Every white man, every white woman and every white child in the South is looking to you to preserve our sacred traditions,” he told the jury. The two men had been acquitted. “It is this kind of justice, dispensed by these kinds of juries, that the opponents of the civil rights bills in Congress are trying to tack onto that bill,” Roy Wilkins said. The amendment “can only be intended to cripple the enforcement of the law by introducing into the proceedings the very local prejudice against which protection is sought,” declared a committee of southern liberal educators and churchmen. Senate liberals agreed. How could any senator who truly cared about civil rights vote for this amendment? asked Charles Potter of Michigan, standing beside his desk on crutches because he had lost both legs in World War II. “I fought beside Negroes in the war,” he said. “I saw them die for us. For the Senate of the United States to repay these valiant men … by a watered-down version of this legislation would make a mockery of the democratic concept we hold so dear.” The elimination of Part III had removed everything but voting rights from the bill, Paul Douglas said. Now the South was trying to make voting
rights meaningless, too. The Douglas Group vowed “to resist [any jury trial amendment] to the end.”