The Bill of the Century: The Epic Battle for the Civil Rights Act (9 page)

Over the next few weeks, Marshall—along with the Justice Deapartment’s Joe Dolan and Louis Oberdorfer, a Birmingham native with close ties to the city’s business leaders—shuttled between Washington and Alabama, and in Birmingham from King and the moderate black leadership to Mayor Boutwell and various quarters of the white elites, many of whom were willing to make concessions to King. Marshall at first repeated his insistence that King call a truce until the court ruled on the Boutwell-Connor election. King said no, catching Marshall by surprise. Though Marshall insisted in calls back to Washington that King was “confused,” he began to realize that only a broad settlement, involving the desegregation of Birmingham’s public accommodations, would end the crisis—and that to avoid replaying the same story in countless cities across the South, blanket federal legislation was needed.
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It was precisely the reaction that King and his men were looking for. “Today I was in a room with one of the top men in the Justice Department, who paced the floor, couldn’t sit down, changed from chair to chair,” bragged Ralph Abernathy during a mass meeting on the night of May 6. “Day before yesterday we filled up the jail. Today, we filled up the jail yard. And tomorrow, when they look up and see that number coming, I don’t know what they’re gonna do!” The next night, after a long day that saw adult protesters hit back at the police with rocks and bricks, King said in a sermon, “The hour has come for the Federal government to take a forthright stand on segregation in the United States . . . I am not criticizing the president, but we are going to have to help him.”
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Marshall’s fear of multiple Birminghams was not hypothetical. During the week following the beginning of the children’s marches, the White House watched nervously as dozens of demonstrations took place around the country. Many of them were held in sympathy with Birmingham—on May 9, fifteen hundred people marched in New York’s Times Square—but not all. On May 6, black students from the overwhelmingly black Lincoln High School in Englewood, New Jersey, caught national attention with a sit-in at the majority-white Cleveland High School across town to protest “the total failure of state and local officials to act in any useful way in the past two years to solve Englewood’s segregation crisis.” Over Memorial Day weekend, tear gas was used in six different cities, and on June 11, some 650 demonstrators shut down construction at an annex to a hospital in Harlem in protest against union discrimination.
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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.”
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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.”
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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.”
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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.”
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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.
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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.
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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.
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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.
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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.
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The Justice Department men were not the only people in the executive 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.”
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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.
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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.
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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.”
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