The Bill of the Century: The Epic Battle for the Civil Rights Act

by Risen, Clay

  In Washington as well, Kennedy was coming under intense pressure to act. On May 4 he met with a delegation from the ADA, who asked him to publicly and personally intervene in Alabama. But Kennedy dodged. “There’s no federal law that we could pass that could do anything about that. What law could you pass?” he asked. The delegation, which included the historian and Kennedy adviser Arthur M. Schlesinger Jr., left disappointed. “I must confess that I have found his reaction to Birmingham disappointing,” Schlesinger wrote in his journal later that day. “Even if he has no power to act, he has unlimited power to express the moral sense of the people; and, in not doing so, he is acting much as Eisenhower used to act when we denounced him so.”17

  Kennedy’s reticence during the Birmingham crisis is understandable, since only much later did the full sweep of the events come into focus. But others could sense full well what was under way. Schlesinger noted in his journal on June 2: “The civil rights movement has suddenly turned, following Birmingham, into a Negro revolution. It has been a long time since I have felt things to be so vividly in motion in our country. Old institutions and ideas, which have held firm for so long, seem to be giving way all at once.” Even the columnist Walter Lippmann, the bellwether of the moderate liberal establishment, called for drastic change: “A revolutionary condition exists,” he wrote on May 28. “The cause of desegregation must cease to be a Negro movement, blessed by white politicians from the Northern states. It must become a national movement to enforce national laws, led and directed by the national government.”18

  Things continued to worsen in Birmingham. On May 7, several hundred demonstrators surged into the downtown; the police pushed back with hoses. The jails overflowed with prisoners, so many that serving breakfast was a four-hour affair. Pressure for action mounted in Washington: Republican senator Jacob Javits challenged Kennedy to intervene in Birmingham and “in every community where civil rights are seriously jeopardized.”19

  Finally, on Thursday, May 9, Marshall was able to get the two sides to agree to a truce, followed by a schedule for desegregating the city’s lunch counters and dressing rooms. Kennedy was relieved, and took the initiative to go before the cameras to cast the deal as evidence supporting his tack on civil rights. “I am gratified to note the progress in the efforts by white and Negro citizens to end an ugly situation in Birmingham, Alabama,” he said. “I have made it clear since assuming the Presidency that I would use all available means to protect human rights, and uphold the law of the land. Through mediation and persuasion and, where that effort has failed, through lawsuits and court actions, we have attempted to meet our responsibilities in this most difficult field where Federal court orders have been circumvented, ignored, or violated.”20

  Two nights later, however, bombs ripped through the home of A. D. King and the Gaston Motel, where many of the movement leaders from out of town liked to stay. No one was killed, but the city fell into chaos as the Birmingham police and state troopers tore into gathered black onlookers.21

  The next morning, Sunday, May 12, President Kennedy flew back from a weekend at Camp David to meet with Attorney General Nicholas Katzenbach, Press Secretary Ed Guthman, and Burke Marshall—who had been picked up early that morning by helicopter from his farm in Virginia, where he had gone to relax after the stress of the Birmingham negotiations—as well as Secretary of Defense Robert McNamara, Secretary of the Army Cyrus Vance, and Chairman of the Joint Chiefs of Staff Earle Wheeler. Robert Kennedy’s dog paced the room as the president tick-tocked in his rocking chair.22

  President Kennedy, it became clear, had had enough of letting Birmingham solve its own problems. He wanted to send in federal troops, he told the group; the question was, how? Should they go into Birmingham directly, and precipitate a major crisis in federalism? “You don’t have the same situation” as you had in Montgomery, said Robert Kennedy, referring to the white mob that attacked black Freedom Riders in that city in 1962. Making clear that the concern here was law and order, not civil rights, the attorney general added that “the group that’s gotten out of hand is not the white people, it’s the negroes, by and large.”

  Moreover, acting in a way that seemed to upstage local and state law enforcement might give Governor George Wallace an excuse to pull back his forces, leaving the Army as a de facto police department. At the same time, Kennedy said, action to check Wallace was imperative. “The governor has virtually taken over the city,” he said. Without federal action, “you’re going to have his people around sticking bayonets in people.” That in turn could precipitate violent protests around the country, led by “black Muslims,” a group that took an antagonistic stance on race relations and whose leaders, most notably the preacher Malcolm X, incorporated separatist and often violent rhetoric into their speeches. As Kennedy concluded, “If they feel on the other hand that the government is their friend, and is intervening for them, is going to work for them, this would head some of that off.”

  The answer, then, was to put troops near but not in Birmingham. In a show of how King had come to occupy a central part of the president’s mind, before giving McNamara and Wheeler the order to deploy, Kennedy wanted to know what the civil rights leader would do. “How freely do you talk to King?” he asked Marshall.

  “I talk to him freely,” Marshall replied. Kennedy then asked him to call King and, without giving away the plans, find out what his expectations were for the next few days. Marshall returned a few minutes later, saying that King simply wanted the White House to get behind the agreement, and to help him stave off further violence. “He didn’t say anything about troops, did he?” Kennedy asked.

  “No, he didn’t,” Marshall replied.23

  That was all Kennedy needed to hear. Just before 9:00 p.m. he went on TV to announce that he was sending troops to Army facilities near Birmingham, dispatching Marshall back to the city, and taking preliminary steps to federalize the Alabama National Guard. “This government will do whatever must be done to preserve order, to protect the lives of its citizens, and to uphold the law of the land,” Kennedy said.24

  Thanks in part to Kennedy’s strong stand, Birmingham settled down, and the agreement held. By May 15, most of the troops had been withdrawn, and Marshall had returned to Washington.

  But with him came new concerns—and ideas. With protests popping up around the country, including a Birmingham-like campaign in Jackson, Mississippi, Marshall and others feared the federal government was going to inevitably play a much larger role in the country’s racial tumult than the administration wanted. No longer did Kennedy have the choice of getting involved or staying out; the only question now was, what sort of involvement did he want? For Marshall, the current nonstrategy of putting out spot fires was untenable—Birmingham had almost collapsed into general chaos, despite the indefatigable work of peaceful men like King and Boutwell (and Marshall himself). What if the next crisis involved a less capable black leader, or a less moderate white mayor? What if the campaign were led by the burgeoning bogeyman of the white establishment, the Black Muslims?

  By late April the rest of the Justice Department leadership below Kennedy—Katzenbach, press secretary Ed Guthman, Office of Legal Counsel (OLC) head Norbert Schlei, John Doar, Oberdorfer—had concluded that comprehensive federal civil rights legislation was now imperative. “I think without having a meeting or discussion about it, everyone concluded that the president had to act,” Marshall said later. More than anyone else, they had been on the front lines of the nation’s racial crises in Oxford, Greenwood, and Birmingham. These men—save for Oberdorfer, non-Southerners; save for Guthman, Ivy League–educated—who had been trained to believe that reason would win out over prejudiced passion had seen, in the student mob at Oxford and the police riots in Birmingham, the depths to which the South was willing to go to defend Jim Crow, and they were no longer willing to accept the constricting limits of current federal law as an excuse not to act.25

  The Justice Department men were not the only people in the ex
ecutive branch warming to the idea of a big push for civil rights legislation. As early as mid-April, Lee White, who had long favored a more aggressive stance by Kennedy, used the Birmingham protests as an opening to urge action. White had unsuccessfully pressed for Kennedy to issue a strong statement on the Emancipation Proclamation centennial, and had been disappointed when the president soft-shoed the legislation that emerged from his February 28 speech. Now he saw his chance. In an April 17 memo to Larry O’Brien, he wrote: “I suggest you call a meeting at the White House within the next ten days or so to set up formally a working committee”—including key congressmen and representatives from the Departments of Justice and Health, Education, and Welfare—“to ensure coordinated efforts by all to secure civil rights legislation.” Knowing that O’Brien would not support him unless he thought the bill had a good chance of passing, White detailed a “basic checklist,” including “the mechanics of setting up a campaign headquarters, if one is to be created, and how it is to be staffed, financed and keyed into its basic operations.” O’Brien, meanwhile, was counseling Kennedy against legislation, since it would mean running “smack into a straight-out brawl that will position the extremes to both sides and probably create an impasse in Congress.”26

  On Friday, May 17, Marshall, Katzenbach, Guthman, and Oberdorfer accompanied Robert Kennedy on a flight to Asheville, North Carolina, where the attorney general was scheduled to address a seminar on the Cold War. They brought up the idea of a new civil rights bill, and they found, to varying levels of surprise, that the attorney general was wholly on board with their thoughts. Legislation was needed, he agreed. The question was what, and how to do it constitutionally. They returned that evening, and over the weekend they began to hash out the framework for an administration-sponsored omnibus civil rights act.27

  On Saturday, the group, along with Schlei and Ramsey Clark of the Lands Division, huddled in Robert Kennedy’s office to develop an outline for a bill. The focus, everyone agreed, had to be on public accommodations and school desegregation, the two issues that seemed to matter most to the Southern protesters. Issues like job discrimination, let alone job creation, would have to wait until later. Late in the afternoon, Kennedy and Katzenbach ordered Schlei to form a team and have a draft ready for the president by Monday afternoon.28

  Marshall and his colleagues did not need a meeting to tell them action was necessary—everyone else was saying it, too. On May 19 the NAACP announced a campaign against de facto segregation in twenty-five states across the North, particularly in schools. More pressing, in early May a group of GOP senators threatened to attach a version of Title III to an administration-supported farm bill. Together, the restiveness among black activists and the receptiveness among Republicans to their concerns set up a painful paradox for the national Democrats: if the Southern Democrats posed a political challenge for any proposal, the nation’s black population stood ready to exact an equal price at the polls for inaction. “The political stakes in the approaching civil rights battle are particularly high and the Republicans are spoiling for a fight,” wrote the columnist team of Rowland Evans and Robert Novak. “From the wings, millions of Negro voters are watching closely.”29

  Monday afternoon, Robert Kennedy and Marshall sat down with the president and several men from his staff—White, congressional liaison Larry O’Brien, speechwriter Ted Sorensen, and appointments secretary Kenneth O’Donnell—to work through the details and politics of the emerging proposal. The Justice Department men had drawn up a short memo with the key elements to a possible proposal. First, they wanted a bill to outlaw segregation in public accommodations like restaurants and movie theaters—not only because “this is an issue that affects all Negroes, even in the North,” but also because the constitutionality of Jim Crow laws was currently before the Supreme Court; should the court decide in favor of the laws (and against civil rights protesters), a provision like this would respond to “the wide frustrations and anger which such a decision would create.”30

  There were two ways to go about banning discrimination in public places under the Constitution. They could either go with the Commerce Clause in Article I, Section 8—giving Congress the power “to regulate commerce . . . among the several states”—which would allow the federal government to ban segregation in any public accommodation that touched interstate commerce in any way; or the Equal Protection Clause of the Fourteenth Amendment, which banned discrimination by governments or government-sponsored or -licensed activities. Because the Commerce Clause had been used to justify much of the New Deal, Democrats had a soft spot for its application. Moreover, the Justice Department men, particularly Marshall and OLC head Norbert Schlei, were reluctant to rely on the Fourteenth Amendment. It had been used to justify a brace of Reconstruction-era civil rights laws, which were passed by Republican Congresses and were therefore favored by pro-civil-rights Republicans. The problem was that those laws were subsequently struck down by the Supreme Court. While much had changed since the late nineteenth century, and there was little chance that the liberal Warren Court would rule the same way, Marshall, Schlei, and others thought the risk was not worth it. The Commerce Clause was the safer route.31

  Additionally, they considered legislation to protect the right to demonstrate, giving the Justice Department the power to sue local officials who were interfering with protesters. The concern here was the same as the one expressed at the May 12 meeting over whether to deploy troops in Birmingham: such a law could give the local authorities an excuse to pull back, putting the federal government “in the business of police protection.” At the same time, it would force the government to pick and choose which protests were worth defending, creating a de facto system of federal endorsement of certain acts of free speech, but not others.32

  Finally, they agreed that legislation was needed on school desegregation, including a requirement that districts develop desegregation plans and the “power for the Department of Justice to bring suit upon the recommendation of the educational authorities charged with administration of the bill in the event that schools districts were completely uncooperative in the development of the plan.” This title, they noted, would not have any timelines.33

  The president had just returned from a spin through the South, where he had addressed a warm crowd at Vanderbilt University, in Nashville—“I got better applause there than any place else in the South, I’ll tell you that,” he said, rocking back proudly in his chair—and then flew on to Muscle Shoals, Alabama, where he politely butted heads with Governor Wallace. From conversations he had on the trip, the president seemed convinced that it would be relatively easy to get Southern whites to accept a ban on segregation, if Southern blacks did not “push this thing too far.” To keep that from happening, Kennedy floated the idea of limiting the right to demonstrate, but pulled back immediately when Marshall balked.34

  Marshall then brought up the demands for a broad Title III provision, and at the very least a robust public accommodations law. It was a civil rights proposal that the president found self-evidently necessary, but that his brother, for once, was the more reticent about. Since many drug stores in the South allowed blacks to buy food but not sit down, he reasoned, they were not being denied service per se. “They can stand at the lunch counters,” the attorney general retorted bluntly. Nevertheless, when the men began to hash out a wish list of proposals, Robert Kennedy included a public accommodations law alongside voting rights and school desegregation. He also floated the idea of sitting down with the owners of chain businesses such as theaters and department stores to see what it would take for them to “meet with Negroes and try to work it out on a community basis.” He suggested bringing in black leaders, including King, but the president wanted to hold off; “otherwise the meetings will look like they got me to do it,” he said. Instead, he wanted to meet with a delegation of mayors and governors first.35

  As a measure of the president’s seriousness on the bill, he talked about bringing the Republicans into the f
old, something he had never done before on civil rights. “I think it’s possible that as the mood of the country gets uglier and uglier, the Republicans are going to say we can’t play the Southern Democratic game anymore,” he said, and predicted that “they’ll join us in cloture and something will get by.”

  Both O’Donnell and O’Brien were pragmatic partisans of the president, having known him since the beginning of his political career (O’Donnell’s relationship with the family went even further back—he had played varsity football with Robert at Harvard), and they both expressed deep reservations about the legislation. As O’Donnell later recalled thinking, “It’s very east for Nick Katzenbach to sit over there and say we should send a piece of legislation up to the Hill, but we’re the ones who have to get it through.”36

  O’Brien, who had staved off presidential endorsement of the 1962 legislation, feared that a close alignment with the civil rights movement would hurt Kennedy among the Southern Democrats at a time when he needed their support for his tax cut. But for once, the pair—along with Sorensen, another holdout on the bill—were overwhelmed by the moment. Realizing the bill was inevitable, they insisted that they at least be allowed to begin with the hard work of smoothing the bill’s entry into congressional waters.37

  Though the details of the meeting remained secret, news of the president’s emerging proposal quickly leaked to the media. On May 21, Hubert Humphrey told a Baltimore Sun reporter that Kennedy was considering an omnibus bill, in part as a response to “increasing restiveness” among senators. Just a few days before, the bipartisan team of Thomas Dodd, a Democratic senator from Connecticut, and Senator John Sherman Cooper of Kentucky introduced their own public accommodations proposal. “Neither bill,” wrote the Sun, “under present conditions in Congress, would have much chance of passage, since both would be opposed to the limit—including filibusters—by Southerners.” The next day, the president told reporters that “we are considering whether any additional proposals will be made to the Congress. And the final decision should be made in the next few days.”38