Master of the Senate (184 page)

The allies he had procured for the South through Hells Canyon were enough to reassure the South about cloture. They weren’t enough to pass amendments. If every one of the twelve western Democratic votes were available to the South—and every one wouldn’t be available on every amendment—those twelve votes, added to a possible twenty-two from the South, would still give the South, at a maximum, a total of thirty-four votes, enough to prevent cloture but not the majority required to pass amendments. To amend—weaken—the civil rights bill, Johnson needed more votes: Democratic liberal votes and Republican votes. And while to western senators a civil rights bill didn’t mean much, to liberals and Republicans that bill meant a lot.

The focus came first on Part III. Believing that the most important part of the bill was the voting rights part, Part IV, Johnson had been trying for weeks—utterly without success—to persuade the “Douglas Group” to accept a drastically weakened Part III in the interests of “getting the first one”: breaking the Senate’s “virginity” on civil rights. But to these liberals it was Part III that made the bill the “dream bill.” It was the powers that section would confer on the Attorney General that would strike at injustice most directly. “It was Part III that was the big thing,” recalls the ADA’s Rauh. Weakening it would cut the very heart out of what those liberals were fighting for. Without Part III, the South could still say “never” to school desegregation. There had been no legal recourse against the men who killed Emmett Till; was there to be no recourse the next time a black body was pulled out of a river? The South was continuing to deny black Americans their rights even in spheres in which courts had ruled. Although blacks could now sit in the front of buses in Montgomery, Alabama, when, in June of 1957, a black minister had tried to do that in Georgia, he had been arrested and jailed. Justice had been denied to black Americans for centuries,
these senators felt—were they, by agreeing to amend Part III, to consent to the indefinite continuation of this denial? The Douglas Group refused even to consider amendments that would substantially weaken, much less eliminate, that section. Often, a declaration against compromise is merely a negotiating position; not to these senators, not on this cause.

Some Republican liberals felt this way, too. Since “racial integration in the schools is of the same character as the right to vote,” Part III must not be weakened, explained newly elected Jacob Javits of New York, whose heart as well as head was for civil rights. As for the rest of the forty-six GOP senators, almost all of them, from Knowland down, were against compromise from considerations of, in varying degrees, conscience or calculation. Even the densest midwestern Neanderthals could grasp the tremendous benefits that could accrue to their party, and to them—
the gavels!
—through either passage of their Administration’s civil rights bill or a Democratic filibuster against it; from the political standpoint, a filibuster, which would dramatize that it was the Democratic Party, through its senators, that was standing in the way of civil rights, might be even better for the GOP than passage.

It is difficult, much as one admires them, to avoid the conclusion that liberals—because they couldn’t see more than a few moves down the Senate chessboard and weren’t very good at counting votes—also believed that since the Republicans were on their side at last, there was no need to compromise. And the Republicans believed that, too. White House strategists agreed with Knowland’s contention that “at least” forty Republicans would be solidly for the bill that had been drawn by a Republican Attorney General and endorsed by a Republican President. With such a solid, possibly overwhelming, majority behind the civil rights bill, its supporters determined to press for passage: to insist on calling the bill off the Senate Calendar and bringing it to the floor before any amendments had been added. But the reality was that despite their optimism and their majority, their insistence did not mean that the bill would pass. It meant that the bill would
not
pass, that in fact it would not even reach the floor: when the motion was introduced to make the bill the Senate’s “pending business,” the South would begin an outwardly reasonable and logical “extended debate” on that motion, and would simply keep extending the debate as long as necessary so that the motion could not be voted on. Attempts to impose cloture on this filibuster would fail because there would be fewer votes for cloture than for passage. Therefore there would never be a vote on the bill itself. But that was a reality the liberals and Republicans do not appear to have grasped. They felt, almost certainly incorrectly, that because they had the votes to beat the South on the bill, they had the votes to beat the South on cloture, too.

Knowland refused to compromise, saying there was no need to, and he meant it. As the Senate prepared to recess for a long Fourth of July holiday weekend, the Republican Leader pledged that when the Senate reconvened on July 8, he would immediately move to bring an unamended bill, including an
unaltered Part III, to the floor. The Douglas Group applauded the move. Lyndon Johnson had been attempting for six months to arrange some sort of compromise on Part III with absolutely no success, and now, with the bill on the Calendar and the crucial debate—or filibuster—on the measure looming close ahead, the chasm separating the two sides seemed more unbridgeable than ever. Getting the votes for compromise seemed impossible.

A
ND THEN
, in an hour, with the delivery of a single Senate speech, the chasm became even wider.

“Surprise,” von Clausewitz said, “is half the battle.” A great general strikes when his enemy is not expecting the blow. The Senate, winding down to the Fourth of July recess, was in the midst of a desultory discussion on defense appropriations when, on Tuesday, July 2, at the second desk from the front on the Democratic side of the center aisle, an arm was raised, and the chair recognized the senior senator from Georgia. The only sign that something momentous was about to occur was that frugal Richard Russell had purchased a new dark blue suit for the occasion.

The first blow should be a telling one. Russell’s first words ensured that this blow would be. “Mr. President,” he said, “for the first time since I have been a member of the Senate, I respectfully request that I not be interrupted in the course of my prepared discussion.” Senators who had been chatting with their colleagues stopped talking, and went to their desks to listen. Two staff members had been standing in the rear of the Chamber. One said to the other: “I bet this is really going to be something.”

It was. Part III of Herbert Brownell’s proposal was not a wholly new clause but rather an amendment to another law—to one of those three leftover “fragments” of the civil rights laws that had been on the statute books for almost a century: Section 1985 of Title 42 of the United States Code. The proposed amendment added to Section 1985 a new paragraph authorizing the Attorney General to apply on behalf of the government for a civil injunction by a judge whenever “any persons have engaged or are about to engage in any acts or practices” which would be crimes under the leftover section. But there were discrepancies between the amendment and the section it was amending, among which was the fact that Section 1985 dealt with suits against individuals by individuals, not suits by the government.

These discrepancies, and their possible implications, had been raised by, among others, a youthful attorney on the staff of the Senate Judiciary Committee, Robert Barnes Young—but they had gone largely unnoticed, in part because Brownell had managed, in his testimony before Hennings’ Judiciary Subcommittee on February 16, to avoid discussing the questions Young started asking him about them. It is unclear to this day whether Brownell and his assistants had deliberately avoided discussing the discrepancies in the hope that the
Senate would pass the bill without understanding their implications. Later, when he was asked to explain them, Brownell would deny any such strategy. “No intrigue or design was involved,” he said; the writing of Part III as an amendment to an existing section rather than as a wholly new section, he said, had been “an accident”—because “so many hands were engaged in the drafting,” it was “impossible” to determine even who had done it. This explanation did not convince some of Brownell’s allies. Paul Douglas, talking later about the “mysterious Part III,” would recall that “Brownell, who deserves credit for the substance of this provision, although his method of operation was lamentable, had never explained it, nor had others…. The Democratic advocates of civil rights had not been taken into Brownell’s confidence, and I do not think Knowland had been either…. We had been dealt with unfairly.” And, they felt, given the caliber of Brownell’s opponent, that had been extremely foolish. The senior senator from Georgia had lost some of his energy; he had lost none of his intellect. “On the surface,” Part III “seemed innocent enough,” Douglas was to say, “but Dick Russell knew what it meant.” At night and on weekends, when other senators were socializing or with their families, Russell often sat alone in his apartment and read, and, reading the transcript of the February 16 subcommittee hearings, he had noticed Robert Young’s questions—and how Brownell had evaded answering them. One Saturday, June 15, he had asked Young to come to his office in the weekend-quiet Senate Office Building to discuss them, and after that discussion, as Russell was to recall, he had given the discrepancies “a great deal of study.” And, now, standing at his desk, he said that “I understand” them “completely.” His colleagues had been filing into the Chamber ever since word had spread that “Russell’s up,” and they now sat, rank on rank in the long arcs, attentive and still. He told them what the discrepancies were and what he felt was the true motive behind them.

He had, Richard Russell said, gone back to that original Section 1985 to learn what “acts or practices” would be covered by the new legislation. “I now read the pertinent part of the already existing law which the [Brownell] bill seeks to amend,” he said. “This is the existing law.” One part of Section 1985, he said, defined such “acts or practices” as any attempt to deprive anyone “of the equal protection of the laws or of equal privileges and immunities under the law”—
any
law, such as, for example, the law requiring desegregation of the schools.

Nor, Richard Russell said, was that the only significant discovery he had made. He had found that Section 1985 was referred to in another of the leftover civil rights fragments: Section 1993 of Title 42. Nowhere in Brownell’s bill was Section 1993 even mentioned, Russell said, but it should have been because Section 1985 automatically invokes Section 1993. And 1993 is the section, passed during Reconstruction, which authorized the President of the United States, “or such person as he may empower for that purpose,” to employ the military forces of the United States to enforce judicial edicts in
the conquered South. Since the
Brown
decision
was
a judicial edict, Part III of the Brownell Bill would authorize the use of military troops to enforce that decision.

And, Russell said, military power was not the only power that would be conferred on the Attorney General by the passage of Brownell’s bill. He understood now, Russell said, other reasons why Part III had not been drafted fresh, but had been made an amendment to an existing section—a section which made violations not criminal but civil offenses, and which said that actions had to be instituted by individuals. In studying the bill, Russell said, “I was greatly puzzled by the fact that this proposed new law” would give the Attorney General power to sue in cases involving individuals—civil cases—and could sue “whether the aggrieved party wished him to sue or not.” But he understood it now, he said. “Mr. President, the Attorney General of the United States does not ordinarily participate in civil suits for damages between individual citizens” of the United States. “His primary duty is to enforce the penal or criminal law.” Part III would give him the right to enter civil cases with the full power he usually exercises only in criminal cases—including the power to seek injunctions from a federal judge.

Nor were schools the only area in which Part III would confer new powers on the federal government, Russell said, for schools were not the only areas of daily life in which judicial edicts were possible, and even probable. “Mr. President, if the Supreme Court so determines—and who can doubt their intent—that the separate hotels, eating places, and places of amusement for the two races in the South constitute a denial of equal privileges and immunities under the old law [Section 1985],” Part III of the new law would mean that “this great power can be applied throughout the South…. Under this bill, if the Attorney General should contend that separate eating places, places of amusement and the like in the South… constituted a denial of equal privileges and immunities, he could move in with all the vast powers of this bill,” and anyone who refused to conform to an injunction could be held in jail at the judge’s order, without benefit of trial by jury. “Under this bill, if the Attorney General should contend that separate places of amusement… constituted a denial of equal privileges and immunities, he could move in … even if the person denied admission did not request him to do so and was opposed to his taking that action. The white people who operated the place of amusement could be jailed without benefit of jury trial and kept in jail until they either rotted or until they conformed to the edict to integrate their place of business.” And, Russell said, “Who can doubt for a moment” that some Attorney General—perhaps not the present Attorney General but some future Attorney General—would do just that, “yielding to the demands of the NAACP and the ADA, who have been most zealous in pushing this proposal?”

The Senate floor was absolutely still now, and the faces of those listening—not only senators but staff members—were sober and intent as the
tall, patrician figure continued reading from the pages on the lectern on his center aisle desk.

The true purposes of the legislation had been concealed from the Senate, Richard Russell said, and they had been concealed deliberately. An effort is being made “to sail this bill through the Senate under the false colors of a moderate bill … while obscuring the larger purposes of the bill,” which is “cunningly designed to … bring to bear the whole might of the Federal Government, including the Armed Forces if necessary, to force a commingling of white and Negro children in … the South, and, indeed, Mr. President, the unusual powers of this bill could be utilized to force the white people of the South at the point of a federal bayonet to conform to … a commingling of the races throughout the social order of the South.” The bill would, he said, give an “unlimited grant of powers … to govern by injunction and federal bayonet.”