Means of Ascent (103 page)

Appointing Masters in Chancery:
Stevenson v. Tyson, Johnson et al., Civil No. 1640, United States District Court, Northern District, Texas, Fort Worth, Exhibit A, Sept. 25.
“A preparation for trial”
:
Davidson, quoted in
CCC-T
, Sept. 24.

“Unwilling”
;
“Be glad”
:
CCC
, Sept. 24. See also
DMN
, Sept. 23, 24.
“Not in a position”
:
CCC, DMN
, Sept. 24.
“Will proceed”
:
Davidson, DC Hearing transcript, Sept. 22, p. 77.

“Unique”
:
AA-S
, Sept. 19.
Analysis of Johnson’s situation:
Boyett, Jones, Weatherly interviews;
AA-S
, Sept. 19, 20;
DMN
, Sept. 20;
HP
, Sept. 19, 20.
“We thought”
:
Boyett interview.

“The greatest”
:
AA-S
, Sept. 20.
“In the midst”
:
AA-S
, Sept. 19.
“No parallel”
:
Kahl, p. 161.
Crisis facing Johnson:
Innumerable analyses of the situation and accounts of the conference of the roomful of attorneys exist, but almost all are based on interviews with lower-level Johnson aides not privy to the actual events, or on other secondhand sources. The account in this book relies on the oral histories of, and my interviews with, the only two attorneys present at the conference still alive when I began my research: Abe Fortas and Luther (“L. E.”) Jones. Their
accounts concur on all major points. Mary Rather, present at part of the conference, added some details. Fortas’ pre-1948 relationship with Johnson is described in Caro,
Path to Power
, pp. 453–65. For a description of Jones’ relationship with Johnson, see Caro, pp. 207–11, 227–40. He was known as the “finest appellate lawyer” in Texas, “the man with probably the finest technical legal knowledge in the state.” See
also Miller, pp. 132–33; Murphey, pp. 90–93; Steinberg, p. 271. Fortas briefly discussed the conference in “The President, the Congress, and the Public,” p. 13. Also Porter, Rowe OHs.

“Grounds for ‘black marking’”
:
FWS-T
, Sept. 16.
“Rules were perhaps”
;
“Allred wrote one”
;
“Where’s Abe?”
:
Jones interview.
“Do you know?”:
Marcus, quoted in Miller, p. 132. Fortas was to say that he
received a call from Wirtz, but all other accounts agree Johnson called himself.
“Acres of lawyers”
:
Fortas OH.
“I said”
:
Fortas interview.
Immense gamble:
Jones interview. Unrealistic: Jones interview.
“Confident”
:
Fortas interview. “This was”: Fortas OH.
Fortas’ reasoning:
Fortas, Jones interviews.
“Problem was”
:
Fortas OH.
“Courage”
;
“Everyone was delighted”
:
Fortas interview.
“Let’s do what Abe says”
:
Fortas, Jones interviews.

“A thing of beauty”
:
Jones interview.
Corcoran group analysis:
Biddle, Arnold and Rowe to Wirtz, Sept. 18, 1948, Jones Papers. The crucial sentences in this letter are: “In another case … asking for a stay, Judge Hutchinson
[sic]
informed him that in his circuit it required three judges. If this be so, you might have
difficulty getting them together.”
Hutcheson hearing:
“Defendant Lyndon B. Johnson’s Notice of Appeal, Filed Sept. 22, 1948: Johnson, Streigler, Shelley et al. v. Stevenson et al., No. 12,529, United States Court of Appeals for the Fifth Circuit, Appeal from the District Court of the U.S. for the Northern District, Texas.
Consternation:
Jenkins interview.
Hutcheson’s decision:
Hutcheson, quoted in
CCC-T
, Sept. 25.
Telephoning Black:
CCC-T
, Sept. 26.

“The most dramatic”
:
Daniels, quoted in Miller, pp. 134–35.
Truman campaign trip:
AAS, Brownsville Herald, SAE-N, CCC-T, DMN, FWS-T
, Sept. 25–28. “Texas—September, 25, 26, 27, 28,” President’s Secretary’s File, Box 11, HSTL; Evans and Novak, p. 25.
“My advice”
:
Truman, quoted in Kahl, p. 193.
“A defeated”:
Carter, quoted in Dugger, p. 335.

Masters-in-Chancery Hearings:
The basis for my description of these three hearings is the transcripts. They are:

In describing them, I have also relied on interviews with persons who were present, including Stevenson attorney Gerald L. Weatherly; Emmett Shelton, brother and law partner of Judge Raymond’s attorney Polk Shelton; Alice District Attorney Frank B. Lloyd; the oral histories of Josh Groce and W. R. Smith, Jr., and my interview with Luis Salas, and his unpublished manuscript, “Box 13.”

Expeditiously:
Master’s Hearing, A, transcript, pp. ii–xiv.
Unable to serve subpoenas:
The opening sentences of the Master’s Hearing, A, transcript, p. xv, set the tone: “The Master: Come to order. Mr. Marshal, were you able to locate any of the witnesses? The Marshal: I wasn’t, your Honor. The Master: You haven’t found them in the county? The Marshal: I haven’t found them at all.
 … The Master: Did you find out anything about their present whereabouts? The Marshal: I wasn’t able to get anything on it at all” (Master’s Hearing, A, transcript, p. xv).
Only eight of fifty:
CCC-T
, Sept. 29.
“On vacation”
:
Master’s Hearing, SD, transcript, p. 4; Master’s Hearing, A, transcript, pp. 43–44.
Donald’s whereabouts:
Master’s Hearing, A, transcript, pp. 37–45.
“Lay … hands on those
records”
:
Smith, Master’s Hearing, A, transcript, p. 40.
No hint:
Master’s Hearing, A, transcript, pp. 45–48.

Unaware of judges’ names:
Tobin, Master’s Hearing, SD, transcript, pp. 14, 16. “I can’t recall the names, but I am sure I know them when I see them,” Tobin said.
Salas’ demeanor:
Salas, Master’s Hearing, A, transcript, pp. 212 ff; Salas interview and “Box 13,” p. 66; Dibrell, Rowe interviews; Kahl, pp. 199–200;
CCC-T
, Sept. 29.
“It is lost”
:
Salas, Master’s Hearing, A, transcript, p. 145.
“So much talk”
;
“the election was level”
:
Salas, Master’s Hearing, A, transcript, p. 150. Visit to
Alice
News
:
Salas, Master’s Hearing, A, transcript, pp. 151–52.
“Viva, Luis Salas!”
:
Salas, “Box 13,” p. 66.

Benavides testimony:
DMN
, Sept. 29; Master’s Hearing, SD, transcript, pp. 99–112.

Stevenson’s lawyers have affidavits:
Dibrell, Stevenson, Jr., interviews; Graham OH; DC Hearing transcript, p. 4.

“Gone”
;
“missing”
:
Master’s Hearing, Z, transcript, pp. 180, 188, 189.
Four envelopes become three:
Gutirez, Master’s Hearing, Z, transcript, pp. 177–82.
Bravo didn’t know:
Bravo, Master’s Hearing, Z, transcript, pp.
184–89.

Groce’s request:
Master’s Hearing, A, transcript, p. xvi.
Only
“An express order”
:
Looney, Master’s Hearing, A, transcript, p. xix.
“The evil days”
:
Tarleton, Master’s Hearing, A, transcript, pp. xxv–xxvii.
“I have the power”
:
Smith, Master’s Hearing, A, transcript, p. xxxii.
The mere fact:
Smith OH.

Black’s hearing:
Fortas OH and interview; Porter OH; Easley interview; McNeil, “How Fortas”;
Washington Daily News
, Aug. 3, 1965.
Civil rights issue never raised:
Weatherly interview. McNeil says it was, but others say it wasn’t, or was raised only tangentially.
“To prevent the reaping”
:
Moody, quoted
in Kahl, p. 194.
“Irrevocably”
:
Fortas, quoted in
AA
, Sept. 28.

Sowing confusion:
Master’s Hearing, A, transcript, pp. 136–70; Salas, “Box 13,” pp. 224–27.
Not among the twenty:
Salas, Master’s Hearing, A, transcript, p. 137.
Not one but two:
Salas, Master’s Hearing, A, transcript, p. 140.
Salas’ conversation with Lloyd:
Salas, “Box 13,” p. 63, handwritten p. 1; Salas interview; Kahl, p. 203.

Black’s verdict:
McNeil, “How Fortas;”
CCC-T, NYT
, Sept. 29;
Harvard Law Review
, Dec. 1948, pp. 311–313; Black to Mrs. O. C. Phelan, Oct. 8, 1964, “General Correspondence, Johnson, Lyndon B.,” Box 35, Papers of Hugo Black.
Smith telephoning Davidson:
Smith, Master’s Hearing, A, transcript, pp. 171–72.
“The court”
:
Smith, Master’s Hearing, A, transcript, p. 175.
Exchanges between Smith and Johnson attorneys:
Smith, Tarleton and Looney, Master’s Hearing, A, transcript, pp. 175–79.
“We will open”
:
Smith, Master’s Hearing, A, transcript, pp. 178, 185;
DMN
, Sept. 29.

Opening the boxes:
Master’s Hearing, A, transcript, pp. 179–85.
“The most potent”
:
Smith OH.

Salas’ resolution had hardened:
Salas, quoted in Kahl, p. 203.
New Motion:
Master’s Hearing, A, transcript, pp. 186–90.

“We object to”
:
Tarleton, Master’s Hearing, A, transcript, p. 195.
“To a lot of other things, too”
:
Smith, Master’s Hearing, A, transcript, p. 195.
“Examining”
:
Looney, Master’s Hearing, A, transcript, p. 198.
“A violation”
:
Tarleton, Master’s Hearing, A, transcript, p. 200.
Opening the remaining boxes:
Master’s Hearing, A, transcript, pp. 202–11.
“Let’s pass [them]
up”
:
Smith, Master’s Hearing, A, transcript, pp. 249–52.

Black’s order:
It read “
ORDERED
that the temporary injunction issued by the United States District Court, for the Northern District of Texas, Fort Worth Division, on September 23rd, 1948, in the case entitled
Coke R. Stevenson vs. Lyndon B. Johnson, et al
, Civil NO, 1640, be and the same is hereby stayed, and that the temporary injunction is and shall be of no force and effect,
until further order of the Supreme Court” (Johnson, Striegler et al. v. Stevenson, No. 466, Supreme Court of the United States, October term, 1948, Hugo L. Black, Sept. 29, 1948).
Scene in court:
Master’s Hearing, A, transcript, pp. 253–55;
CCC-T
, Sept. 29; Rowe, Salas interviews.
“Judge Davidson has”
:
Smith, Master’s Hearing, A,
transcript, p. 253.
“I hardly see”
;
“I am so full”
:
Smith,
Groce, Master’s Hearing, A, transcript, p. 267. “It will be”: Master’s Hearing, A, transcript, p. 268.

Evidence about dead “voters”
:
Dibrell, in an interview, confirms that three “dead” voters were found on the list at that first inspection. He says that at the time of the Master’s Hearing, Stevenson’s attorneys were prepared to present conclusive evidence that one of the three was dead; as for the other two, Dibrell says, “We had
evidence, but not the kind of evidence we were ready to present in court” because there had not been time to obtain it. That evidence would have been ready by the time of a full trial, he says. Similarly, the attorney who represented Stevenson in the State District Court hearing in Alice—Wilbur Matthews—wrote in his memoirs that at the time of that hearing, the earliest legal proceeding in the case, the names that had been added to the Box 13 poll list
“included at least one person who had died prior to the primary election” (Matthews, p. 102). Dibrell and other leaders of the Stevenson camp such as Boyett and Stevenson, Jr. feel a fuller investigation—which would have been carried out had Black not ended the legal proceedings—would have revealed the presence of “many more” votes cast in the names of dead persons.

Supreme Court refuses to reconsider stay:
Journal of Proceedings of the Supreme Court, Oct. 5, 1948.
Supreme Court rejects Stevenson petition for trial:
Stevenson v. Johnson et al., Petition for Writ of Certiorari to the Court of Appeal for the Fifth Circuit and Supporting Brief (Supreme Court of the United States, October term, 1948).
DMN
, Feb. 1, 1949.

“A notable lack”
;
“a fancy dance”
:
Dugger, “Two Cheers for the FBI.”
“Without a trace”
:
Kahl, p. 242.