by James Rosen
The only real losers in the deal were Bob Finch and his liberal aides at HEW. When newspapers reported that Finch planned to delay certain desegregation timetables beyond a September 1969 deadline “in a furtive and quiet manner,” Nixon barked: “Bob—I want them relaxed in a direct forthright manner.” Seemingly everything Finch’s agency did ran countrary to the president’s wishes—and Attorney General Mitchell gleefully made sure Nixon knew it. “The president…was embarrassed for Finch,” Ehrlichman recalled, “and Mitchell poured gasoline on that flame.”
Mitchell was “a proponent of civil rights,” recalled Jerris Leonard, DOJ’s top civil rights officer, years later. “I brought a lot of lawsuits into John Mitchell’s office, put ’em on his desk. I never heard him say, ‘Why are we favoring these niggers?’…Our object wasn’t to try to press the envelope. Our object was to try to get kids into desegregated school systems, [get] black people jobs…[get] black people housing…. The liberals didn’t like it, because they didn’t give a damn about whether or not we got black people into schools and got [them] jobs. What they wanted to do was to reformulate the whole system and turn it over to the government.”10
In the friction between Mitchell and Finch the press found an irresistible story line: the cabinet-level policy dispute that turns personal. The New York Times reported Mitchell “hard-pressed to conceal his disdain for Robert Finch.”
Nixon wanted his administration to speak with one voice. A meeting was accordingly called to bring together Mitchell, Finch, and their top aides; tellingly, the meeting was held in Mitchell’s office. Finch’s young deputy, Leon Panetta—later a nine-term Democratic congressman and the Clinton White House’s last chief of staff—found the attorney general hardly the ogre he’d imagined. “Like all such meetings with notorious public figures,” Panetta later wrote, “the actual character is never quite so villainous as you had pictured him to be. Mitchell, with his pipe, was no exception. He came on more as a fatherly figure than Machiavellian.”
Finch handed Mitchell one of Panetta’s statistical breakdowns. “Well, look at this,” Mitchell said. “No wonder the Southerners scream about enforcement in the North. There’s some justification to that criticism, isn’t there?” “That’s right,” Finch answered, “there are few cases in the North.” “Why is that?” Mitchell asked. “It seems to me that if we are after segregation, it’s bad wherever it exists.” Mitchell knew the administration was not about to tackle de facto housing patterns, but he deliberately invoked the North to aggravate Panetta. Mitchell’s aide, Jerris Leonard, vowed to “move on some key Northern systems to help establish some needed law.” The meeting was yielding exactly what Nixon had ordered in February 1969: Find a Northern school district to hit, too. “Good, let’s do that,” Mitchell replied. When Panetta tried to argue against extensions for dilatory districts, Mitchell turned the discussion to recent Supreme Court decisions, then brought the meeting to a close. Panetta realized the matter had already been decided in the Oval Office. Mitchell, the winner, had lain down no cards because he didn’t need to; Finch, the loser, because he had none.11
The president ordered the two cabinet officers to sign a joint statement outlining administration policy. Scribbling on an early draft, Mitchell called for a “PR statement” that would contrast Nixon’s “evenhanded” and “equitable” enforcement with Kennedy’s and Johnson’s hostile, anti-Southern approach.12 Perhaps because all of Washington knew that “Mitchell won and Finch lost,” as Ehrlichman put it, Nixon worried that Finch would disown the final product. He told Haldeman:
When stmt goes out F[inch] must stand up
+ support it
don’t give appearance we rolled him…
The Mitchell-Finch compact was finally released on July 3, 1969. Southern segregationists were disappointed to see no extension of timetables beyond the 1969–70 deadlines the Johnson administration had set. The statement also shifted major enforcement responsibility from Finch’s HEW to Mitchell’s Justice; by that fall, a record number of children sat in desegregated classrooms.13
So convulsive were the sixties in American race relations that school desegregation represented only one of several fronts on which African Americans were waging their battle for equality. Nor was it the only race controversy in which Attorney General Mitchell played a decisive role. Another landmark law from the Kennedy-Johnson era, the 1965 Voting Rights Act (VRA), was set to expire in August 1970. It would be Mitchell who decided the Nixon administration’s response: whether to extend the act, with or without amendment, or simply let it expire.
Letting VRA lapse was never a viable option. Its enforcement helped enfranchise an estimated 800,000 black Americans. The only advocates for letting the law expire were staunch segregationists like Senator Sam Ervin, the North Carolina Democrat who decried the original law as “repressive” and “contrary to the Constitution”—and who later presided, with great piety, over the Senate Watergate committee. That left reenactment as the only option, the only question whether to amend it or not. Once again, as analyst Michael Barone has written, Nixon “tailored his policies to left-leaning opinion leaders while crafting his rhetoric to propitiate the right-leaning ‘silent majority.’”
House Judiciary Committee chairman Emanuel Celler, the feisty Brooklyn Democrat, had introduced legislation extending VRA, without amendment, until 1975. That the new administration despaired of addressing this extraordinarily sensitive issue became clear when the attorney general canceled five scheduled appearances before Celler’s committee in six weeks. Southern whites lobbied Mitchell to apply VRA to all fifty states—currently, it applied only to seven, all below the Mason-Dixon Line—and warned the administration it would be breaking faith if it allowed a simple extension.
Privately, Mitchell predicted to the president and GOP leaders that the House “likely will pass a simple five-year extension of the act” but he agreed, once more, to don the heavy mask Nixon assigned him. Thus, when Mitchell finally took the witness chair before a Judiciary subcommittee, on June 26, he stunned Celler, and even fellow Republicans, by announcing that the Nixon administration opposed the extension of VRA. “I cannot support what amounts to regional legislation,” Mitchell testified. “While Congress may have had sufficient reason to pass regional legislation in the 1965 act, I do not believe that this justification exists any longer.”
Under the modified extension Mitchell proposed, bans on literacy tests and state residency requirements for presidential elections would be extended nationwide, and a panel would be formed to study voting discrimination. The Nixon-Mitchell plan also authorized the attorney general to dispatch election monitors and file voter-discrimination lawsuits anywhere in America, not just in the seven Southern states covered by the original legislation. Most controversially, it shifted the burden of proof for the validity of new election laws from the states to DOJ. When Celler objected, Mitchell explained that more than 50 percent of eligible black voters in every Southern state were already registered. More voting-age blacks in the Deep South had cast ballots in 1968 than in Watts, Los Angeles; and as the attorney general noted dryly, in his coup de grace, only one-third of those in Celler’s beloved Manhattan, Brooklyn, and the Bronx had done so.
Celler harrumphed that the Nixon-Mitchell plan “bristles with complications.” But the chairman had a problem: His usual allies—the ACLU, the NAACP, the Leadership Conference on Civil Rights, the U.S. Commission on Civil Rights—had all endorsed Mitchell’s proposal for a nationwide ban on literacy tests. Celler likened the Nixon-Mitchell bill to the suggestion that “because you have a flood in Mississippi, you have to build a dam in Idaho.” In fact, the eighty-one-year-old Celler simply resented being outfoxed. As leading civil rights historian Hugh Davis Graham has noted, Mitchell, “seizing the reformer’s initiative…cast Celler and his liberal majority on Judiciary in a conservative role as defenders of the status quo.”
In the end, the extended VRA contained Mitchell’s nationwide ban on liter
acy tests, a weakened ban on residency requirements, and, thanks to the intervention of Democratic senators Birch Bayh and Edward M. Kennedy—against Nixon’s wishes—full voting rights for eighteen-year-olds. The president signed the Voting Rights Act of 1970 into law on June 22. But as he did so, Nixon announced he was instructing Attorney General Mitchell to launch a swift court challenge against the eighteen-year-old voting provision. On December 21, the U.S. Supreme Court upheld the measure’s constitutionality, in the ruling of Oregon v. Mitchell.14
John Mitchell’s signature statement on civil rights turned out to be one of the most memorable pronouncements on the relationship between politics and government ever uttered by an American official. On the morning of July 1, 1969, before Mitchell left for testimony on Capitol Hill, thirty African Americans, joined by one white friend, politely opened the door to Mitchell’s outer office, sat down on the available chairs and couches, and—when those filled up—the floor. We’d like to see the attorney general, announced the group’s leader, Mrs. James Hadnott of Prattville, Alabama. Mitchell’s secretary told Mrs. Hadnott the attorney general was busy; Mrs. Hadnott replied that the group members were staging a sit-in to protest Mitchell’s desegregation policies and, until he came to see them, they would wait patiently right where they were.
And there they sat—for the next two and a half hours, as news photographers, alerted to the commotion on Justice’s fifth floor, clicked away. Finally, Jerris Leonard told the group Mitchell would see them in the Department’s auditorium. At the appointed hour, Mitchell heard out the group’s grievances, artfully deflating the tension and deploying, as in similar encounters with students and hippies, the old-school Irish charm. But he left the group’s members with something to think about. “You will be better advised,” he told them, “to watch what we do instead of what we say.”15
This tantalizing proverb Mitchell later repeated to a group of prominent black leaders, who leaked it to the press. Nothing could have proven Mitchell more correct—that blacks and liberals would not pay greater attention to deeds than words—than the furor the attorney general’s words created as they reverberated across the country and down through the ages. Where Fortune magazine wondered if Mitchell hadn’t suffered an “unintentional burst of candor,” the New Yorker scornfully hailed “the most astonishing admission of high-level duplicity in government history.”16
Mitchell’s own explanations of his famous maxim—boiled down to “watch what we do, not what we say”—changed somewhat over time. PBS’ Paul Niven was the first reporter to press him on it, in a December 1969 interview.
NIVEN: When you met with a group of Negroes who had come to your office, you said on one occasion, “Judge us not by what we say but by what we do.” What did you mean by that?
MITCHELL: Very simple: that our accomplishments during our administration in the enforcement of the statutes relating to civil rights would speak for themselves and that they would be recognized as such. And there was no sense carrying on large dialogues about what might have been done, or what might be done, that we would rather stand on the record than carry on this dialogue that might be presumptuous on our part.
By 1986, when he was last asked to explain his cryptic words, Mitchell—long removed from public life—candidly acknowledged to author Len Colodny the electoral importance of the South and his own impatience with black leaders at the time.
It was very simple. I made it to Coretta King and [Ralph] Abernathy and a lot of the rest of ’em that were screaming about the Nixon civil rights policies. We had [a] double problem, as you know. One was to keep the South happy and the second was to desegregate the schools and carry out the civil rights requirements of the statutes and the court decisions and so forth. And so that was the meaning of it.17
The most thoughtful meditation on Mitchell’s statement came, ironically, from Daniel Moynihan, who was no fan of Mitchell’s—he once wrote privately that he wished Mitchell “acted a bit more lawyer-like”—and who himself had been pilloried by liberals and the news media for suggesting, in a leaked memo to Nixon, that the whole issue of race relations in America might benefit from a bit of “benign neglect.” “How much more explicit can one be?” Moynihan asked. “[Mitchell] was saying that the rhetoric of the national government would now change, would now begin to reward other groups, but that the actual conduct of the administration would not change. This is about what happened. If, however, Mitchell expected blacks to see this as an improved, or even as an acceptable, situation he was, of course, asking for disappointment.”
“Few grasped,” Moynihan concluded, “that Nixon was putting forth a set of administrative and legislative proposals designed fundamentally—and deliberately—to fulfill the promises of the 1960s.”18
As children prepared to return to school in the summer of 1969, educators in thirty-three Mississippi districts faced especial anxiety. At DOJ’s request, the courts had ordered twenty-nine of the districts to be completely desegregated by September 11, the other four by 1970. Mississippi senator John Stennis, the hawkish sixty-seven-year-old Democrat who chaired the Senate Armed Services Committee, lobbied Mitchell for more time, citing the prospect for “public unrest” if desegregation measures were pushed too fast. When Mitchell demurred, Stennis went to the top. He sent President Nixon a handwritten letter containing an implied, but unmistakable, threat: If the desegregation issue required his presence in his home state, Stennis would have to skip the critical vote on the antiballistic missile (ABM) system, a cornerstone in Nixon’s national security strategy. Teletyped out to Nixon in San Clemente, Stennis’s proposal was clear: If Nixon wanted his ABM system, the Mississippi districts had to have more time.
Mitchell, Finch, and Defense Secretary Melvin Laird all put in calls to Stennis, who was unmoved. Ultimately Nixon exalted cold war missile defense over the complaints of liberal bureaucrats, and made sure Bob Finch understood as much. Under pressure from his own aides, Finch shrugged that he would “call the attorney general and see what can be done.” Once again, however, Mitchell, operating behind the scenes, emerged triumphant. Accordingly, the HEW secretary—in a humiliating public repudiation of his own aides’ work—wrote to the appellate court on August 19, requesting the Mississippi schools be given until December 1 to submit new plans. The current timetables, Finch said, had been devised “under great stress in approximately three weeks,” and would “produce chaos, confusion and a catastrophic educational setback to the 135,700 children, black and white alike, [in] the 222 schools of these Mississippi districts.” The Fifth Circuit set a district court hearing in Jackson the following week.
Outraged civil rights groups immediately sued the government, leading to an unprecedented courtroom showdown. On Monday, August 25, Jerris Leonard, representing the federal government, conceded he was “somewhat embarrassed” at having to argue against the administration’s previously submitted plans. Roy Reed, the New York Times’ veteran civil rights reporter, marveled that “the NAACP Legal Defense and Education Fund and the Justice Department for the first time were on opposite sides of a desegregation case.” Yet the Court granted Mississippi the delay. Despite all the symbolic rewards Nixon and Mitchell had accorded the white South, this marked the only time the Nixon administration actually intervened to delay school desegregation. The Senate approved the ABM system by a vote of 51 to 50.19
At the White House, a reporter asked Nixon whether, in light of the actions in Mississippi, the administration wasn’t in “retreat” from Brown v. Board of Education. Nixon replied that twice as many schools were desegregated as a year earlier and cast himself as a levelheaded centrist. “There are those who want instant integration and those who want segregation forever,” Nixon said. “I believe that we need to have a middle course between those two extremes.”20
The Supreme Court demanded more. On October 26, 1969, six days after hearing oral arguments from Jerris Leonard and lawyers for the NAACP Legal Defense and Education Fund, the High Court issued its
historic ruling in Alexander v. Holmes County Board of Education, in which the justices struck down the Fifth Circuit’s decision to grant a deadline extension to the thirty-three Mississippi school districts. Calling the case “of paramount importance,” Justice Hugo Black, who wrote for the unanimous Court, held public schools could no longer desegregate with “all deliberate speed”—the standard the Court had adopted in Brown—but must do so “immediately.”
Publicly, Mitchell appeared stunned, telling an interviewer he had believed “the Court would respect the administration’s wishes” for more time. Holmes now made “instant integration”—a position Nixon had cast as extreme—the law of the land, and ostensibly put the president and the attorney general on the spot: How could they end segregation “immediately” in the 156 dual-system school districts that remained? Some wondered whether Nixon and Mitchell would even honor the Court’s decision. In fact, the decision was a gift to Nixon and Mitchell: It focused Southern resentment on the judiciary, not the executive, and allowed the president and attorney general to pose as reluctant executioners of a policy their constituency regarded as hostile. Thus Mitchell assured the nation he would “bring every available resource to bear…[to] enforce the mandates issued by the courts pursuant to the Supreme Court decisions.”21
Now Mitchell had to take action. “Psychological acceptance [is] the key,” Nixon told Mitchell, Finch, and Ehrlichman in early 1970, before asking: “Can we get the orders to be more reasonable?” According to Ehrlichman’s previously unpublished notes, Mitchell replied: “We can hang our hat on the fact that there were ‘plans’ before the court in past cases.” As Nixon recognized, Holmes rendered the Mitchell-Finch compact obsolete; a new comprehensive statement of administration policy was needed. As Haldeman’s notes show, the president, to his credit, grasped at once the gravity of the “historic crisis” he faced; the need to cool, rather than inflame, the nation’s passions; and the political advantage that could be won if he could, with his statement, reassure the Supreme Court that no more stringent rulings like Holmes were necessary.
