Master of the Senate (191 page)

With the raising of the jury issue, the civil rights battle at once became even more complicated—a tangle now not only of legal and parliamentary complications but of moral complications as well. No longer was all the right clearly on the side of the liberals. Even Hubert Humphrey, who was to stand fast against the amendment because “you could not really rely on southern juries to be fair,” was to confess that his emotions were “mixed, really”—“This was a terribly difficult issue for me because my Populist background had always emphasized the importance of jury trial. My father talked to me about things like that.” With the raising of the jury issue, both sides held some moral high ground—and since granting one right, the right to a jury trial, would nullify the other right, the right to vote, there seemed to be no basis for compromise between them. And if the South, with the West on its side, would not have to stand alone in the fight to come, neither would the liberals: the GOP was standing by
their
side. On Part IV, unlike on Part III, Brownell had his boss’s support. The elimination of Part III narrowed the scope of the Administration’s bill to the one area, voting, for which Dwight Eisenhower’s support was unequivocal, and the President understood that the amendment would, as Brownell put it, “practically nullify” any voting rights provision. Placing “a jury trial between a court order and the enforcement of that order” would mean that “we are really welcoming anarchy,” Eisenhower told a press conference. With the President behind him, Knowland was taking the step, rare with Republicans, of making the vote on O’Mahoney’s amendment a “party policy” position, and Knowland’s efforts were being supplemented now by a politician much more wily, and far tougher, than he. Recognizing the magnitude of the stakes involved in the struggle for civil rights legislation, and recognizing as well the caliber of his main adversary, Richard Nixon had decided to engage him hand to hand. He had begun spending long hours in the Vice President’s office off the Senate lobby. Visiting him there, Stewart Alsop found him, as he reported to Johnson through George Reedy, “full of admiration for the job you have done.” (On Nixon’s desk, Alsop told Reedy, was “a list of nine Republicans that are going to be worked on. One of them is [Gordon] Allott but Alsop did not see the other names.”) “It is Nixon, maneuvering quietly and deftly in the background, who is spearheading the bipartisan ‘no compromise’ bloc that is adamantly against writing a jury trial amendment into the bill,” Robert S. Allen reported. “[He] is working closely” not only with Knowland but with “such Democratic militants as Douglas, Humphrey, and McNamara….”

Knowland may not have been able to count votes, but Nixon could, and he was counting more than enough. After talking with the Vice President, Allen told his readers that “Defeat is in store” for the amendment. Conservative columnists agreed. Many Republican senators had “been willing to support amendments against Section III, [but] they are not expected to go along with
the jury trial amendment,” Gould Lincoln reported. As soon as Part III was removed on July 24, Knowland announced that he would press for an early vote—during the very next week, in fact—on Part IV, and predicted that “an overwhelming majority” of the GOP senators would vote against the amendment. Defeat did indeed appear to be “in store” for the South on the vote—which, of course, meant that the South would not allow a vote: that it would launch a filibuster that would mean defeat for civil rights, and for Lyndon Johnson.

The chasm between the two sides seemed unbridgeable. “Every so often the play of history turns up an issue so full of personal and regional conflict, so grounded in moral philosophy, and so subject to the clash of ancient but contending principles, that it stands apart from all the normal preoccupations of political life,” James Reston wrote. “Such an issue is now before the Senate….”

“At this point,” George Reedy writes, “Johnson rose to what I will always regard as his greatest height…. He was absolutely determined that there would be a bill…. Against all reason, Johnson kept insisting that a compromise must exist somewhere…. Most observers thought that [the] two poles were too far apart to find a middle ground. But using the same set of facts, LBJ insisted that the reality was the other way around—that if two opposing sides had a degree of validity in their contentions, there simply had to be a legitimate way of meeting them both.”

I
F THERE WAS A WAY
, Lyndon Johnson was going to find it. “He pleaded and threatened and stormed and cajoled,” Reedy recalls. “He prowled the corridors of the Senate grabbing senators and staff members indiscriminately, probing them for some sign of amenability to compromise.”

He had begun while the Part III fight had still been going on. Trying to find a middle ground—some form of jury trial amendment acceptable to both liberals and the South—he had “spent hours on the phone in nonstop conversations with the most ingenious legal minds he knew,” pleading with Corcoran, Rowe, Clifford, Fortas, Acheson, and a dozen other lawyers “for something to break the logjam.” He had had Tommy Corcoran assemble a group of lawyers—a dozen leading legal minds of the New and Fair Deals—in the conference room at Corcoran & Rowe, and Corcoran had told them how important it was that a solution be found: “You know, we’re all pros here, and we can talk to each other. We know we’re here to elect Lyndon Johnson President. Who’s kidding whom, and
let’s get going!”
Dean Acheson put several bright associates at his law firm, Covington & Burling, to work on the problem. Senators were flooding the Democratic Policy Committee with amendments and suggestions for amendments (O’Mahoney edited and reedited the version he had introduced), where they were run by the committee’s lawyers, Siegel and the
brilliant Solis Horwitz. “We drafted twenty-five or thirty different versions,” Horwitz was to recall. “We were constantly trying to satisfy both sides.” The search grew desperate. “O’Mahoney kept introducing these various amendments one right after the other. It got ridiculous….” Each suggestion proved to have a fatal weakness; some foundered on conflicts with other statutes already on the books, others on either the rock or the hard place: every amendment that would add to the civil rights bill a provision that required jury trials—in no matter what form—was totally unacceptable to liberals; every amendment that did not include an absolute guarantee of jury trials was totally unacceptable to Russell and the South. For some time, Reedy says, “every effort turned out to be a false start.” And time was running out—and now, with Part III disposed of, it was running out fast, thanks to Knowland’s stubbornness. Confident that he would win a vote on Part IV, the “leader of the bipartisan civil rights coalition” was pushing for one more and more insistently, repeatedly announcing that he was prepared to move for an immediate vote. If that motion came to the floor without a compromise already in place, the civil rights bill, bipartisan coalition or not, would be dead.

At the close of a Senate session one evening in July, however—while the fight, and the focus, were still on Part III—Lyndon Johnson had returned to his office and reached for Walter Jenkins’ yellow legal pad with the list of persons who had telephoned during the day, and Jenkins had silently pointed to a name on the pad, and Johnson, before he turned to the rest of his messages, told Jenkins, “Get me Ben Cohen.”

By the 1950s, the name of Benjamin V. Cohen had faded in Washington’s memory, in part because it had been a long time since he and another young bill-drafter, Tommy Corcoran, working closely with Sam Rayburn, had drafted the Securities Exchange Act and the Public Utilities Act, and other keystones of the great New Deal arch; in part because while the accordion-playing, storytelling, relentlessly self-promoting Corcoran had made himself a flamboyant figure in the Capitol, head of one of Washington’s most influential political law firms, the shy and dreamy Cohen, who looked and talked, as a friend wrote, “like a Dickens portrait of an absent-minded professor,” had withdrawn from the Washington social scene to spend more and more time alone in his book-cluttered Dupont Circle apartment. In the days since they had been part of the same little group of New Dealers,
*
Lyndon Johnson had seen less and less of Ben Cohen—“You had to be very patient with him,” Gerald Siegel was to explain, and Johnson was “an impatient man”—but decades before, men who knew Corcoran and Cohen well had learned that despite his charm and gift for the blarney, Corcoran’s mind, canny and politically astute though it was, was not the equal of his silent partner’s. A remark of Sam Rayburn’s still circulated
among men on Capitol Hill who had been there during the early days of the New Deal: after one meeting at which Corcoran did almost all the talking, Ray-burn confided to a friend, “Cohen’s the brains.” Cohen had been among the lawyers whom Johnson had telephoned to ask for suggestions about the jury trial amendment, and now, on that July evening when Johnson returned his call, Cohen said he had a suggestion to make, and Johnson asked him to come to lunch, and, as Gerald Siegel said, reminiscing years later, “Everyone came up with a different plan. And all of them were worth nothing, except one man, Ben Cohen.”

Cohen was to recall, after the author, during an interview in 1976, had finally persuaded him to talk about the 1957 episode, that he had been “working on the problem” of reconciling the right to trial by jury with enforceable civil rights legislation when his attention had been caught by an article that had appeared in the April 29 issue of a journal of liberal opinion,
The New Leader.

The article, by a University of Wisconsin law professor, Carl A. Auerbach, addressed that problem—and had a solution for it. It was not necessary to rely only on jury trials to enforce civil rights, Professor Auerbach had written, because jury trials are required only in criminal contempt proceedings. They are not required in civil contempt proceedings—and civil contempt proceedings could also be employed to enforce civil rights.

In criminal contempt, Auerbach said, the judge is punishing a defendant for violating—disobeying—a judge’s specific injunction, or order. In civil contempt, Auerbach said, the aim is different—not to punish a defendant for having violated a court order, but to force the defendant to obey the order in the future. “If the court’s order is disobeyed, the judge will hold the violator of his injunction in contempt of court and have him imprisoned until he does obey.” As soon as he does, he will be freed. “He can open his prison door and walk out anytime he pleases by obeying the court’s order”—and therefore jury trials were not required.

The impasse over the 1957 civil rights bill, Auerbach wrote, had come about because the bill contemplated only criminal contempt proceedings. If a provision for civil contempt was added, the impasse would be broken. “If the United States proceeds against an alleged violator of a civil-rights injunction in order to punish him for criminal contempt, all the protections accorded the accused in a criminal trial should be extended,” including a jury trial, he said. But “the United States should” also “be authorized to bring civil-contempt actions against alleged violators of civil-rights injunctions…. Its objective would be purely remedial—not to punish the violators for their past disobedience but to coerce future obedience to the court decree. If the decree, for example, ordered the registration of Negro voters, the local officials refusing to do so could be imprisoned until they obeyed the order.” If they did so, they would be released. There would therefore be no need for a jury trial.

Auerbach’s solution would require merely the addition to O’Mahoney’s
amendment of a new paragraph, one authorizing the use of civil as well as criminal contempt, Cohen explained. But, he explained, that new paragraph might help create the necessary new ground, the new ground that could become the middle ground, the common ground, for a compromise that would enable the civil rights bill to pass. While southern senators would still be able to tell their constituents that the bill, by including a jury trial amendment, guaranteed southerners trials by southern juries and was therefore so weak as to be meaningless, northern senators, on the other hand, would now know that, despite that guarantee, the bill contained strong enforcement provisions unvitiated by any provision for trial by southern juries.

Twenty years before, Cohen told the author, he had considered young Representative Johnson “promising material.” Subsequently, he said, he had been somewhat put off by the “intensity” of Johnson’s ambition. But now, in 1957, talking to Johnson over lunch, he felt that the promise had been fulfilled: “He was a man with a mission”—to pass a civil rights bill—who grasped with impressive speed the significance of the Auerbach article. “He asked Senator O’Mahoney to see me,” Cohen recalled, and together—along with Siegel—by July 17, they had worked out the wording of the necessary new paragraph. (“Ben was simply my closest adviser,” Siegel says. There were seemingly insuperable problems to arriving at a wording that would be accepted by all sides, but every time there was a problem, “Ben solved it.”) O’Mahoney’s amendment guaranteed jury trials in civil rights criminal contempt proceedings; the new paragraph said that that guarantee shall not “be construed to deprive courts of their power, by civil contempt proceedings, without a jury, to secure compliance with … any lawful writ, process, order, rule, decree or command of the court… including the power of detention.” On that date, while the fight over Part III was still being waged, O’Mahoney had sent the revised amendment to the desk, and now, on July 24, as soon as the 52–38 vote on Part III was announced, it became the Senate’s pending business.

The new version of the O’Mahoney Amendment allowed Lyndon Johnson to add additional numbers, representing new votes for the amendment, on the left or “yea” side of the names on his long tally sheet, but only a few more numbers; they were next to the names of Hells Canyon westerners who had wanted to help the South but had been shying from doing so because the amendment would have made the whole civil rights bill too blatantly meaningless. Their tentative commitment was now solidified. Even if every one of the twenty-two southerners and twelve Hells Canyon Democrats voted for the amendment, however, that would be a total of only thirty-four votes, whereas forty-eight were required for passage. There were still no numbers, or almost none, in that left-hand “yea” column next to the names of the forty-six Republicans and about fifteen non-southern and non-Hells Canyon Democrats who made up the bulk of the “civil rights coalition”—a solid majority against the amendment. The odds against passage of the civil rights bill were still very long. The South
was willing—to avoid being forced to filibuster, and also to help Lyndon Johnson become President—to accept a weak bill, and since the amendment’s new version still contained a jury trial guarantee, it was still weak enough for the South to accept it. Republicans and liberals, however, still would not accept it. While the new version gave them part of what they wanted—a means of allowing judges to jail civil rights violators without a jury trial—it still ensured that southerners would not be jailed for criminal contempt, and it was therefore still too weak to be acceptable. Since, with a solid majority, they could pass the bill unweakened—without any jury trial amendment at all—they felt they had no reason to accept one. They would vote against, and defeat, the amendment; the South would then filibuster, and thereby defeat, the bill. To pass the amendment, and thus the bill, Lyndon Johnson still needed perhaps fourteen Republican and liberal votes. The main advantage of the O’Mahoney Amendment was not that it in itself got Johnson the votes he needed—it didn’t—but that it provided a base from which to fight for those votes. While before the new version, no ground for a compromise had existed, there was new ground now, ground too narrow but nonetheless more than had existed before.