Master of the Senate (196 page)

Johnson had appealed to Frank Church on civil rights partly on pragmatic grounds; Hower, for one, believes that the Foreign Relations seat was the key: “I don’t think anything explicit was ever said—you didn’t deal with Lyndon Johnson that way. But you knew that if you did him a favor, when the time came, if he could do you a favor…. This was the way Lyndon Johnson operated. There was a tacit
quid pro quo!”
But Johnson had also appealed to elements in the young senator’s character that were not pragmatic at all, as Bethine Church came to understand when, late each July evening now, her husband “replayed” for her the day’s events. The Leader had appealed to her husband’s sense of duty. “You’re a senator
of the United States
,” he told Church. “You have to function as a senator of the United States. This is your national duty.” He appealed to his sense of history—and to his desire to be part of it. “Frank always had a sense of history,” Bethine says, “and he made Frank feel like he would be a
big
piece of history if he got involved in this.” He appealed to his love of a challenge. “Lyndon knew he [Lyndon] needed something [to get the civil rights bill passed], and [he knew] he didn’t have it,” Bethine says. “They weren’t going to beat a filibuster. They just wouldn’t get the votes. And unless they got something more, there was going to be a filibuster. The South had said the blood was going to flow if there wasn’t a jury trial amendment. And yet the other people felt the blood would flow if there
was
a jury trial amendment. Lyndon had to have something more.” And, she says, he made her husband want to find that something. “He made Frank realize that they needed him. Lyndon said: If you don’t help with this, there’s not going to be a civil rights bill. It was a tremendous challenge, and Frank never loved anything as much as a challenge.”

And Lyndon Johnson appealed to elements in Frank Church’s character that were even less pragmatic than that.

Her husband’s sense of justice, his wife says, was one of the things that had made her love him. Although she understood that the nickname “Senator Sunday School” was a sneer at his idealism, she “loved” that nickname, she would say. “That’s how I saw him.” Johnson made Church understand that the
important thing was to get a bill passed, even if it wasn’t a perfect bill (“that you could go on later and make it better,” in Bethine’s words), and that even if the bill protected only voting rights, it was worth passing, for voting rights were the key to equality for Negroes. And Johnson also made Church understand why equality for Negroes was important. Although her husband had never said it, Bethine says, “I knew that down deep underneath he cared terribly about equality. He just had never thought about it. And Lyndon brought it out. He appealed to this feeling in Frank. Lyndon made him realize that he cared very much about a civil rights bill. And that they needed him to get one passed. He would come home: ‘This is
my
fight, too. I’m a
United States Senator
, and this is the only right way for the country.’ Lyndon brought that out. It’s almost a disservice to Frank to say this, but in the Senate, you have so much to do—you have too much to do. You really
do
have to pick your fights. And then suddenly Frank found out this was his fight, that this was something he deeply believed in.”
Why did Frank come to feel this way?
—“Lyndon. Lyndon brought this out. It was a crusade for Lyndon. He was not going to be stuck with this southern image. And he believed in it—he talked about Cotulla. Lyndon brought this out in Frank.”

Astute politically, Bethine Church understood that her husband was far from the only senator with whom Johnson was employing such appeals—that “when he said something like, We need you, if you don’t help, there’s not going to be a civil rights bill—well, I think Lyndon said that to everyone he could, to get them enlisted in this crusade.” But she saw how effective such appeals were with her husband. Frank had said he wasn’t going to get deeply involved. “And the next thing I knew, he was staying late, and at night, he was dead tired, but he just couldn’t unwind. He was in all the way. Lyndon had gotten him in.”

Knowing that Johnson needed “something more”—something that would attract new liberal and Republican votes for the jury trial amendment while not making it totally unacceptable to the South—Church, “being a lawyer,” tried to “think about the amendment” as a lawyer, Bethine says, trying to imagine the details of a voting rights trial. He drafted—often in the evening, at home, on a yellow legal pad—more than a few proposed changes, but discarded them himself either after rereading them or after conferring on the telephone with O’Mahoney. And then one afternoon—probably on the Monday or Tuesday of that climactic week of July 29—while sitting with Bethine in his inner office in the Senate Office Building, “he started to think about the juries themselves and … it was like a light bulb going off!” Liberal antipathy to the amendment centered on the impossibility of getting a just verdict from the South’s all-white juries. “All right,” Bethine recalls Frank saying, “how about this?”—what if the juries weren’t all-white? “If the juries couldn’t be segregated, we could get the jury trial amendment through.”

Church telephoned O’Mahoney, who, Bethine says, “refined the language—he was a wonderful lawyer,” and then it was further refined, by Ward
Hower and Siegel and Horwitz, and when they had all finished, the proposed new paragraph in the jury trial amendment—the technical name for this amendment to an amendment is
addendum
—repealed the section of the United States Code that barred from federal jury duty citizens who did not meet their state’s qualifications for jury duty. Since in southern states, one of the qualifications for proposed jurors was that they be registered to vote in the state, and since in southern states most Negroes were not registered to vote, it was primarily this section that allowed southern states to bar Negroes from jury duty. Church’s addendum said that with the exception of illiterates, mental incompetents, and convicted criminals, “any citizen” twenty-one years old “is competent to serve as a juror.” No one recalls who came up with the phrase that summed up the addendum’s purpose in persuasive terms: with the addition of the new paragraph, the phrase went, the civil rights bill would not only reinforce an existing civil right, the right to vote, but would also confer on southern Negroes
“a new civil right”
: the right to sit on juries.

Church’s addendum would appeal to northern liberals of both parties—Republicans like Case of New Jersey and Smith of Maine, Democrats like Frank Lausche, Green, Pastore, and Kennedy—who had been unwilling to vote for a civil rights bill that included a jury trial amendment that weakened the bill’s primary purpose of strengthening the civil rights of Negroes to vote. That weakness would now be at least partially offset because the bill would give Negroes a
new
civil right. And for those liberals who were worried about the reaction of their constituencies (“They didn’t want to be seen as participating in too much vitiating of the bill,” Hower explains), the addendum would furnish them with a response to constituent anger. They could say that the addendum ensured that juries in voting cases would no longer be all white. While this statement was true, it ignored a significant point: although the addendum would allow Negroes to serve as jurors, there would still be whites on the juries, in the southern states probably a majority of whites, and even if there was only one white on a jury, one vote on a jury would be enough to prevent conviction, so that southern juries would probably still not convict whites in racial cases. Church saw the addendum as “symbolic,” less a means of ensuring justice than “the means to pass the bill,” says his administrative assistant, Carver; Church’s legislative assistant, Hower, says, “In practice it would have meant very little in the Deep South, and I think he realized [this]. I’m tempted to use the word ‘gimmick’—okay, I’m
using
the word ‘gimmick.’” At first glance, however, the addendum appeared to make the bill significantly stronger, and that gave these civil rights-conscious senators an argument—a catchphrase, “a new civil right,” which might be as effective with their constituents as the southern senators’ catchphrase (“You can’t be tried as a criminal without a jury”) was with
their
constituents. The addendum “enabled a number of senators who could not have otherwise supported [the civil rights bill] to do so,” Hower says. “All this going on in the context of the very delicate
balance of changing one, or two, or three votes without losing someone on the other side,” and the new paragraph accomplished that. What had been needed to attract new votes for the bill was an excuse, an excuse that would allow liberals to vote for it without provoking the South to vote against it. Now Church had thought of one. The “gimmick” might give the civil rights bill the last few votes it needed to pass—and the important thing was that it pass.

C
HURCH WANTED
to introduce his addendum immediately, but Johnson told him to wait. Every previously proposed alteration designed to make the jury trial amendment more acceptable to liberal senators had been scrutinized for flaws by liberal lawyers, and then those flaws had been criticized by liberal newspapers and by civil rights organizations until it was difficult for these senators to accept it. To minimize scrutiny of this proposed change, Johnson wanted it introduced only at the last possible moment, so that, as Reedy explains, “there would be no chance for opposition to be mobilized.” He wanted it introduced at exactly the right moment—at the moment when the addition of a new, unexpected, element to the civil rights debate had the best chance of tipping the balance. And he didn’t want the addendum simply to be introduced, he wanted its introduction staged for maximum effect. Lyndon Johnson, master of so many aspects of the legislative art, was about to demonstrate his mastery of one final aspect: the floor debate. While debates seldom change votes, there are rare issues on which they can do so, and this jury trial amendment with its tangle of compelling and conflicting arguments on both sides which had left many senators torn, might be one of them. If Frank Church’s addendum was introduced at the right moment, and if the debate on the addendum was properly orchestrated for maximum effect, it might change a few votes—and a few was all Lyndon Johnson needed.

O
N THE MORNING
of Wednesday, July 31, Johnson still had only about forty-three votes. Knowland still had about fifty-one. That morning, the Republican Leader repeated his earlier flat refusals to compromise—to accept a jury trial amendment in any form whatsoever. With the amendment included, he said, the bill simply “would not be a workable piece of legislation.” And he sent to the desk three unanimous consent agreements to set a definite hour for a vote on the complete bill. Under the first, the vote would be held on Thursday; under the second, on Friday; under the third, on Saturday. Each would allow six hours for debate prior to the vote. It quickly became apparent, however, that to the South the details of such agreements were irrelevant; no agreement was going to pass. When the clerk finished reading each agreement, Richard Russell said, “Mr. President, I object.” After the third objection, Knowland, calling it “obvious that there are in prospect a considerable number of speeches on this issue,”
announced that he would insist on longer sessions “with a view to forcing a vote.” But the South was not going to be forced. Russell rose to speak, and senators waited to hear what the South was going to do. “I have no desire to unduly prolong the debate but I shall insist that it be carried on so long as the representative of a single sovereign state … desires to address himself to it,” he said. The escalation of debate into open filibuster was very near.

That morning, however, at eleven o’clock, Cy Anderson had been ushered into Johnson’s private office in G-14 by George Reedy. Although the railroad brotherhoods had begun lobbying some senators on behalf of the jury trial amendment on Tuesday, their efforts had been desultory, and the brotherhoods themselves had not issued a statement publicly backing the amendment, as John L. Lewis had done. Lewis’ support had brought West Virginia’s two senators around, but in the midwestern states where the brotherhoods were strong, not a single senator’s vote had been changed.

Behind the closed door of his office, Johnson explained to Reedy and Anderson why some of these midwestern Republican conservatives
should
change their votes, and the following day, Reedy, at Johnson’s direction, embodied these arguments in a memorandum. Typed on plain white paper, the memo bore neither signature nor attribution. Its authorship and purpose, however, are clear from an attached cover note from Reedy to Johnson calling it “Some arguments tailored for Jenner, Goldwater, [Frank] Barrett, et al.” It had been written by Reedy—at Johnson’s close suggestion, if not dictation—to be handed to Republican conservatives to sum up, and lend the force of the printed word to, Johnson’s attempts to persuade them to change their votes.

The memo struck at the heart of the argument that Nixon, Knowland, and the White House liaison men had been making, thus far with success, to hold these senators in line: that it was to the senators’ political advantage to array themselves on the side of black Americans by opposing the jury trial amendment.

Despite the “glib talk” about “political advantages,” the Johnson-Reedy memo said, “there are senators who had better stop, look, listen and think about the politics.” Certainly “there
is
some political advantage for a man who is running for the Presidency in opposing the jury trial section,” the memo said, but, it pointed out, these senators weren’t running for the presidency. “A senator must run within his state,” and therefore a senator “should think about those groups
within his state
that feel strongly.” Among the groups opposing the jury trial amendment, the memo said, are the NAACP, “the Walter Reuther-Jim Carey-CIO-social reform section of labor,” and “possibly some unorganized negroes,” and a senator primarily interested in the support of such groups the next time he runs for re-election should therefore vote against the amendment. But, “on the other hand,” the memo said, there are also groups supporting the amendment: “a) the railroad brotherhoods; b) Americans who feel strongly about the jury trial issue.” And “some senators may feel that they would rather
have the good will of the railroad brotherhoods and of [these] Americans.” Senators should weigh this support against the other—“they should weigh carefully.”