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.”
Brownell’s bill, Russell said, has the same aim “as the measures proposed by Sumner and Stevens in Reconstruction days in their avowed drive ‘to put black heels on white necks.’” Section 1985 was one of the old Reconstruction laws, he said, and Reconstruction was what the bill was trying to bring back, in more subtle, and more pernicious, form. “If this bill is used to the utmost, neither Sumner nor Stevens, in the persecution of the South in the twelve tragic years of Reconstruction, ever cooked up any such devil’s broth as is proposed in this misnamed civil rights bill.”
The South had courage, he said; it would not submit tamely to the proposed persecution. “What I say now is in no sense a threat. I speak in a spirit of great sadness. If Congress is driven to pass this bill in its present form, it will cause unspeakable confusion, bitterness, and bloodshed in a great section of our common country. If it is proposed to move into the South in this fashion, the concentration camps may as well be prepared now, because there will not be enough jails to hold the people of the South who will oppose the use of raw Federal power forcibly to commingle white and Negro children in the same schools and places of public entertainment.” The South would not submit tamely in the Senate, he said. It would fight there by whatever means were necessary. A filibuster, he said, is “a lengthy educational campaign,” and “we shall require a long time to get the facts across to the country.” Turning to his right, Russell looked across the center aisle at the Republicans who had long been the South’s allies but had now deserted the South. They sat listening as the senator they so deeply respected spoke directly to them. He assumed that they would also use all their rights if they were ever faced with such a terrible threat to the people of their states; he assumed they would use every means at their command to fight it. “If they did not fight it to the very death, they would be unworthy of the people who sent them here.” If they were to fight, he said, he would support them. “If it is ever proposed to use the military forces of this Nation to compel the people represented by other senators to conform their lives and social order to the rest of the country, those senators need not be afraid of the word ‘filibuster’ or of attempting to exercise all their rights under the rules.” If they did so, “I hope Providence will give me the strength and the courage to stand by their side.” And he hoped they would support him now. “I hope that our colleagues will not be intolerant of us as we seek to discharge our duty to the American people of our states who have honored us by sending us here.”
When Russell had finished his speech, Stennis rose to congratulate him on it, saying it “will be a landmark, a turning point.” It was. In succeeding days, the Washington press corps portrayed Russell as a towering, tragic figure. Under the headline “CHAMPION OF A LOST CAUSE,” William S. White wrote that “Every supreme moment in [his] career … every one of those rare times when his power is at its peak, is a moment not of elation and triumph but of melancholy and the inner knowledge of ultimate defeat. For the irony of Senator Russell’s life as a public man lies in the fact that he can be a primary leader only in a cause that he knows already to be lost in the unfolding movement of history.” White assailed those who would classify the Georgian “erroneously and with great over-simplification, as all but in the company of the ‘pecker-woods’—the ill-born, ill-educated and bloody-minded kind of Southerner who uses a word—the word is ‘nigger’—that could not pass the lips of Richard Brevard Russell.” To Clarence Mitchell, seated in the gallery above, the Georgian was also a towering figure—a very dangerous one. The NAACP’s perceptive lobbyist saw a “subtle dramatist” (who had “riveted” the Senate’s attention on him with his dramatic opening line) standing with “baronial elegance” as he vented “with volcanic fury the sectional bitterness that had been bottled up inside him for so long—feelings that the South was victim of ‘conscious hate.’” But the speech also reminded Mitchell, as his biographer says, “why this normally urbane gentleman was such a highly respected master strategist.” By his accusation that the bill’s supporters, who had called it a “moderate” measure, had been engaged in a “campaign of deception,” he had, with “astounding effectiveness,” thrown the “Knowland-Douglas forces on the defensive”; his masterful invocation of the names of Sumner and Stevens had awakened ghosts that stalked the Senate halls.
Russell’s speech had another strategic effect. Its charge that the bill was “cunningly designed” to deceive Congress into passing legislation giving the federal government “sweeping” new powers was aimed at the weakest links in the civil rights alliance: the midwestern Republican conservatives who were philosophically opposed to any expansion of federal power. Russell’s aim was true. While the Senate was still sitting all but transfixed by his oratory, Olin Johnston jumped up and shouted, “Senators, do you want to be responsible for a second Reconstruction?” Some of the midwestern conservatives did not want that responsibility, as became clear when several of them spoke at the next Republican caucus. One of them, Bourke Hickenlooper of Iowa, said that passage of Brownell’s bill would be “a violation of the civil rights of the white race.” More votes had been needed to support the southern position on Part III, and Russell had gotten some with his monumental speech.
HE WAS TO GET MORE. A great general has the ability to find a weak spot in his foe’s defenses that no one else has found, and Richard Russell was a great general in the civil rights war. There was indeed a weakness related to the Administration’s civil rights bill: the head of the Administration didn’t know what was in it. And Russell had guessed that. His speech contained the following sentence: “I would be less than frank if I did not say that I doubt very much whether the full implications of the bill have ever been explained to President Eisenhower.”
Astonishing as was that statement—that the President was not familiar with a major point (perhaps the major point) in his Administration’s most highly publicized bill, one that had been a subject of controversy for more than a year—it became apparent the next day that there was, at the least, a considerable amount of truth in it. Russell had said that his statement was based “on my analysis of his [Eisenhower’s] answers to questions at press conferences.” Eisenhower’s next press conference was on the morning after Russell’s speech, and at it James Reston of the New York Times asked about Russell’s charge that the Administration’s bill “was a cunning device to enforce [wholesale] integration of the races in the South.” Perhaps some of the journalists present had expected the President to reply with a defense of the bill, and of his Attorney General. If so, they were to be disappointed. “Well,” Dwight Eisenhower replied, “naturally I am not a lawyer, and I don’t participate in drawing up the exact language of the proposals.”
The President went on to say that he had thought the bill was primarily a voting rights bill. “I know what the objective was that I was seeking, which was to prevent anybody illegally from interfering with any individual’s right to vote….” In light of that, Reston asked, would the President be willing to see the bill rewritten so that it would deal specifically only with the right to vote—in other words, to strike out Part III? “Well,” the President replied, “I would not want to answer this in detail, because I was reading part of that bill this morning, and I—there were certain phrases I didn’t completely understand. So, before I made any more remarks on that, I would want to talk to the Attorney General and see exactly what they do mean.”
Eisenhower’s initial ignorance is understandable. The President h
ad, of course, authorized Brownell in April, 1956, to submit only the voting rights portion of the bill; Part III had been put back in the bill through the stratagem worked out by Brownell and Representative Keating. And apparently the fact that it was back in the bill had never—during the intervening fifteen months—been conveyed to Eisenhower. That afternoon, he spoke to Brownell over the telephone. Eisenhower’s secretary Ann Whitman heard only the President’s side of the conversation, but her notes indicate that Eisenhower may have felt he had not been sufficiently informed about the bill’s contents: “He said that some two years ago when they had discussed civil rights legislation, he had understood verbally from the Attorney General that the right of the Attorney General to go into the south was to be concerned with interference of right to vote. Now he understands that the bill… is in general terms…. He wondered whether this bill was not somewhat more inclusive in that particular factor than had been intended. The President said that when he and the Attorney General had talked, they had mentioned criminal proceedings only in cases where Negroes not give[n] right to vote…. If the bill has been expanded to a form so general that it scares people to death, that is something else again….” More than one Republican senator, reading the transcript of the President’s press conference, stopped worrying about what the White House reaction would be if the senator voted with the South.
Later that month, the President would write a friend that some of the bill’s language “has probably been too broad.” And he would also, that July, privately write the friend about his distress about the Brown decision (“I think that no other single event has so disturbed the domestic scene in many years”), his lack of distress with the pace of the South’s compliance with that decision (it is, he wrote the friend, “impossible to expect complete and instant reversal of conduct by mere decision of the Supreme Court”), and added sentences that hardly evidence a burning desire for sweeping new civil rights legislation, saying that “Laws are rarely effective unless they represent the will of the majority,” and “when emotions are deeply stirred,” “human feelings” should be given emphasis and progress should be gradual. Eisenhower “had waged two successful campaigns to become the nation’s leader, but he did not want to lead on the issue of civil rights,” his biographer Ambrose has written.
Master of the Senate: The Years of Lyndon Johnson Page 145
