Kennedy spoke eloquently and at length of the humiliating and arbitrary burdens that segregation placed on blacks throughout the South—with no hint of his own “they can pee before” they go shopping attitude of barely a month before—explaining that a black traveler “cannot rely on the neon signs proclaiming ‘Vacancy,’ because too often such signs are meant only for white men’s eyes.” And he couched his argument in the broadest possible economic terms. “The effects of discrimination in public establishments are not limited to the embarrassment and frustration suffered by the individuals who are its most immediate victims,” he said. “Our whole economy suffers. When large retail stores or places of amusement, whose goods have been obtained through interstate commerce, artificially restrict the market to which those goods are offered, the nation’s business is impaired.”
Kennedy explained that the administration had chosen to base the bill on both the commerce clause and the Fourteenth Amendment, in part because of the “vast change” that had occurred since the nineteenth century in the nature of business organization and in part because of a new understanding of what constituted state action. “Today, business enterprises are regulated and licensed by the states to a much greater degree than in 1883,” when the Supreme Court held that the Fourteenth Amendment did not apply to private businesses.
Kennedy had a largely sympathetic audience on a subcommittee dominated by liberals, starting with Celler himself. But as the morning dragged into afternoon, and members began to ask questions he considered redundant, the attorney general grew testy. When Representative George Meader, a conservative Republican from Michigan, asked Kennedy if he had read a Republican public accommodations measure that had been introduced in the House earlier that month, he replied, “I have not.” That was too much for the measure’s sponsor, Representative John V. Lindsay, a liberal Republican from New York’s “silk stocking” district with broader political ambitions, who spoke up sharply.
“I am quite deeply disturbed, Mr. Attorney General, that you have never bothered to read this very important legislation,” Lindsay said. “In view of the fact that you apparently did not consider these bills at all, I can’t help but ask the question as to whether or not you really want public accommodations legislation or not.” Lindsay went on to say that the House cloakroom was rife with rumors that the administration was already prepared to water down its own bill.
Kennedy reacted with equal asperity. “I want this legislation to pass,” he told Lindsay, chiding him for repeating mere rumors. “I don’t think, Congressman, that I have to defend myself to you about the matter.” But Lindsay had made an important point, and the Kennedy administration still had a lot to learn about the prickly politics of civil rights legislation. As Celler would point out the very next day, “Frankly, it would be extremely difficult to get a civil rights bill without the support of those on the other side of the aisle.”
* * *
ON THE SENATE SIDE of Capitol Hill, the challenge was even tougher. The day after the attorney general’s testimony before Celler’s committee, Bobby Baker, the secretary to the Senate’s Democratic majority, told Mike Mansfield that his nose count had showed it was “virtually impossible” to find even fifty-one solid votes for the bill, much less the sixty-seven needed for cloture. Bob Kennedy would now do his best to improve those odds, in nine agonizing appearances before the Senate Judiciary Committee, to which the Senate version of the administration’s bill—known there as S. 1731—had been referred.
The Judiciary Committee’s chairman, James Eastland of Mississippi, and its chief constitutional expert, Sam Ervin of North Carolina, had said nice things about Kennedy during his confirmation hearings two years earlier. But that did not change the fact that the Judiciary Committee was the notorious graveyard of civil rights legislation and the first line of defense in the southern Democrats’ determination to block this new bill as well.
The first time Kennedy appeared before the committee, at 10:45 a.m. on Tuesday, July 16, he was not even allowed to testify, as Ervin held forth at length on the evils of the bill—with Everett Dirksen, the committee’s ranking Republican, looking on. Ervin charged that the public accommodations section could be made to apply “to any shoeshine boy whose sole stock in trade consisted of one can of polish and a rag which had moved in interstate commerce,” and he vowed to oppose any bill that would undertake to “deprive private individuals of the right to say how they will use their property, or who they will select to be their customers.” As Ervin continued his harangue the next day, railing against the bill’s grant of wide discretion to the attorney general in bringing desegregation lawsuits, Chairman Eastland interrupted to ask, “Isn’t it true, if we pass this bill, we confer the power of a dictatorship?” Right on cue, Ervin replied, “There is no doubt that this bill, if passed, would confer the power of a dictator upon the president.”
When Senators Kenneth Keating, a liberal Republican from New York, and Thomas Dodd, a liberal Democrat from Connecticut, undertook to point out that state laws in the South requiring separate eating and washing places for blacks and whites were already controlling the operations of private business “to a minute degree,” Ervin exploded with a circular, Orwellian argument that he would make repeatedly in coming days: such laws, he contended, had no force because the Supreme Court had effectively nullified them in the Brown decision in 1954. Leaving aside the cold reality that legal segregation was still the order of the day in hotels and restaurants across the South, Ervin insisted, “At noon on the 17th day of May, 1954, the Constitution suddenly changed its meaning, not as a result of any actions taken by the only bodies that are empowered to change the Constitution: namely the states and the Congress, but by the action of the Supreme Court.”
Finally, on the morning of Thursday, July 18, Kennedy himself was allowed to begin his testimony. In a statement that could well have summed up his own feelings before the explosive meeting with James Baldwin and the black intellectuals, he said, “Many millions of white people, especially in the North—people who until recently assumed that the Negro was satisfied with the great social progress of the past twenty years—are now faced with the startling discovery that it’s not true; that whatever progress Negroes have made is inadequate to their need for equality. And none of us can deny that their need is real; that their frustration is genuine. We have been unreasonable about it, or ignorant of it, far too long.” He noted that even as he spoke, National Guardsmen were patrolling in Cambridge, Maryland, in the face of demonstrations there, and that unrest was brewing in Savannah, Georgia, and Danville, Virginia. “The responsibility of Negro leaders who set these demonstrations in motion is very great, as is the responsibility of the white leadership in every community,” he said. “But our responsibilities as a nation are most plain. We must remove the injustices. The alternatives before us are narrow. We can either act or fail to act.”
He recited the Justice Department’s success in urging voluntary desegregation, but added, “I scarcely need remind this committee that for an American man, woman or child to be turned away from a public place for no reason other than the color of his skin is an intolerable insult—an insult that is in no way eased by the bland explanation that it has been allowed to go on for a hundred years or more.” He said that federal laws, from the National Labor Relations Act to the Taft-Hartley labor law and the Fair Labor Standards Act, had all “regulated private business enterprises to remove burdens from the national commerce.”
He rattled off some of the grim realities of segregation: Nearly 70 percent of young white people nationwide were high school graduates, but only 40 percent of blacks. In Alabama, only 9 percent of white adults had failed to finish fifth grade, while that description fit more than a third of blacks. In 193 counties across the country, fewer than 15 percent of eligible blacks were registered to vote. (In Mississippi alone, that was true in seventy-four of the state’s eighty-two counties.) And he cited an Alabama voting case in which applicants to regi
ster were asked to “name the duties and obligations of citizenship.” A white salesman had answered, in writing, “Support the law vote,” and was registered. A black soldier who wrote, in neat penmanship, “To vote, to obey the laws of Alabama, to bear arms against any enemy, to support the Constitution of the United States and Alabama,” was rejected.
When Kennedy had finished, Ervin bore in with the first in a long round of querulous questions, an interrogation that would stretch to more than a dozen hours in all. He first asked the attorney general why the United States had a written constitution, eliciting the concession that it was intended to protect individuals against the power of the state. Then he tried to get Kennedy to admit that the bill was a response to “troublous times” in the streets of Birmingham. “The proposed legislation, other than the voting part and the proposal to extend the life of the Civil Rights Commission, was not offered before the demonstration occurred, was it?” Ervin demanded.
“I don’t think,” Kennedy replied evenly, “there was a general feeling in the country, or in Congress, Senator, to do much about it.”
Next, Ervin wanted to know how many criminal prosecutions the Justice Department had brought in Mississippi or Alabama for denial of voting rights, and Kennedy responded, “To be quite frank about it, I would think it would be virtually impossible to successfully prosecute a criminal case in either one of those states on this matter.”
And so it went, on issue after issue: the adequacy of existing statutes; the nature of literacy tests; provisions for special voting referees in localities where fewer than 15 percent of eligible blacks were registered. Ervin, the sole questioner, was relentless, but not without good humor. Kennedy gave as good as he got, but also in an unfailingly respectful tone. As one long hearing concluded, Kennedy said, “Senator, I enjoyed being with you for three years and I enjoy seeing you again.” Kenneth Keating interrupted to say, “I did not hear that.” Kennedy explained, “I worked for Senator Ervin for three years,” only to have Keating respond, “I hope it won’t be three more years this time!”
The grilling was so exhausting that, smack in the middle of it, when Ethel Kennedy ran into Ervin at a White House party, she asked, with typical insouciance: “What have you been doing to Bobby? He came home and went straight to bed!”
At another point, when Ervin argued that the civil rights bill would “regulate the use of privately owned property and personal activities within the border of a State after interstate commerce has ceased, merely because the person using such privately owned property or rendering such personal services may use some goods which at some time in the past have moved in interstate commerce or may serve some travelers who have journeyed in time past from one state to another,” Kennedy countered that the discrimination itself interfered with interstate commerce. He added, for good measure, that civil rights demonstrations that disrupted business had done so, too.
“If that is so,” Ervin snapped, “why don’t you ask Congress to pass a law to prohibit those demonstrations?” before apologizing, “Pardon me, I shouldn’t interrupt you.”
But Kennedy was ready with an answer on this question, too, noting that since May 20 there had been 639 demonstrations around the country, in 174 cities, and 302 of these were exclusively about public accommodations. His message was clear: the only law that would end the demonstrations was a law to end the discrimination.
Ervin wanted to know about beauty parlors, barbershops, and swimming pools. (They would be largely exempted from the bill’s provisions, unless they were in hotels, Kennedy replied.) He wanted to know the justification for paying attorneys’ fees to successful plaintiffs in civil rights actions, but not for winning defendants. It was, day after day, a dialogue of the deaf, a stalemate neatly summed up on August 8, when Ervin probed the administration’s rationale for including a provision to provide assistance to school districts attempting to redress “racial imbalance” in their schools.
“Is it the policy of the administration to encourage transporting children away from their neighborhood schools to schools in other communities for the purpose of getting what some educators may conceive to be racially balanced schools in the other communities?” Ervin demanded.
“No, we have no policy on that, Senator,” Kennedy replied.
Then why provide any funds for such assistance?
“There are other solutions to the problems,” Kennedy insisted, before turning the tables on the senator: “May I just ask you a question? Do you feel that there is a problem in a number of our major metropolitan areas, at the present time, dealing with racially imbalanced schools?”
“I do not,” Ervin said.
“You see,” Kennedy went on, “we are not talking the same language, Senator.”
“We are both talking English,” Ervin replied.
“But that,” Bob Kennedy concluded, “is as far as we get.”
4
Tell ’Em About the Dream!
SATURDAY, JUNE 22, 1963
HAVING CONSULTED WITH LAWYERS and legislators, with businessmen and clergymen, John Kennedy could no longer postpone a council with the people who had pressed hardest for his new civil rights bill and were most excited about its introduction: the black leaders of the major civil rights groups themselves. And so on this summer morning, he welcomed a cross section of the sometimes feuding coalition of campaigners for equal rights to the Cabinet Room of the White House.
They were known as the Big Six, and they came in solemn array, a group diverse in age, attitude, and experience. There was the silver-haired dean of the movement, A. Philip Randolph of the International Brotherhood of Sleeping Car Porters. The proud and prickly Roy Wilkins, president of the NAACP. The cool, cautious Whitney Young of the Urban League. The mellifluous James Farmer of CORE, whose Freedom Rides had so distressed the Kennedys two years earlier. John Lewis, the brave young chairman of the Student Nonviolent Coordinating Committee, who had been brutally beaten on one of the rides and had already been arrested twenty-four times. And the man who had long since become the most famous—and controversial—face of the cause, Martin Luther King Jr. of the Southern Christian Leadership Conference.
They had been met at the North Portico of the White House by Preston Bruce, a black doorman, and Randolph, Mitchell, and Young wanted to know if Bruce believed Kennedy was fair and sincere about civil rights, or “just another false politician saying things he didn’t really mean.” Bruce told them that he believed both Kennedy brothers “cared heart and soul about justice for black people,” and the president arrived to escort the group to the West Wing.
The president’s visitors brought with them some unwelcome news. The previous day, some of them—but not all of them—had announced plans for a massive march on Washington for later that summer, a public demonstration of support for civil rights that Randolph had first contemplated more than twenty years earlier. Despite—or perhaps because of—the tension in the air, there now began what Kennedy’s adviser Arthur Schlesinger would later recall as “the best meeting I attended in my years in the White House.”
The president and the top aides with him in the room, including the vice president and the attorney general, were not happy at the idea of a giant protest aimed at the Capitol. President Kennedy quickly noted the vital necessity of obtaining support for his civil rights bill from sources other than liberals and the usual civil rights groups—that is, from Republicans and moderates. He warned that many senators, especially those from the sparsely populated states in the Plains and the Mountain West, were reluctant to break a filibuster and cut off debate—for reasons having nothing to do with their stance on civil rights. “They see what has happened to small states in the House of Representatives, and they believe that unlimited speech is the only protection for small states in the Congress,” Kennedy said.
When someone asked why no Negroes had been involved in the drafting of the bill, Kennedy replied that the mere perception that the bill was the work of black leaders—especially of K
ing—would mean it could never get out of committee. “We want success in Congress,” the president said, “not just a big show at the Capitol. Some of these people are looking for an excuse to be against us. I don’t want to give any of them a chance to say, ‘Yes, I’m for the bill, but I’m damned if I will vote for it at the point of a gun.’”
In fact, King’s aide Andrew Young would later say that the black movement leaders had been helping to draft the bill with their public protests, as surely as if they had been in the room with the Justice Department lawyers. Philip Randolph quietly made a corollary point to the president, noting that “the Negroes are already in the streets,” and adding, “It is very likely impossible to get them off. If they are bound to be in the streets in any case, is it not better that they be led by organizations dedicated to civil rights and disciplined by struggle rather than to leave them to other leaders who care neither about civil rights nor about non-violence? If the civil rights leaders were to call Negroes off the streets, it is problematic whether they would come.”
The president acknowledged this point, but he nevertheless insisted, “Now we are in a new phase, the legislative phase, and results are essential. The wrong kind of demonstration at the wrong time will give those fellows a chance to prove their courage by voting against us.” Vice President Johnson, reflecting his long experience in Congress, offered a lesson in the ways of the Hill and the limits of lobbying. “Not many votes are converted in the corridors,” he explained. “Most fellows vote for what they think is right and for what their states want. We have about fifty votes for us in the Senate and about twenty-two against us. What counts is the twenty-six or so votes which remain. To get those votes we have to be careful not to do anything which would give those who are privately opposed a public excuse to appear as martyrs.”
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 10
