The Bill of the Century: The Epic Battle for the Civil Rights Act (11 page)

On May 29, Robert Kennedy paid a surprise visit to Johnson’s Committee on Equal Employment Opportunity. Kennedy sat quietly for a few minutes as NASA administrator James Webb gave a presentation of his agency’s progress. Then Kennedy began to cross-examine Webb, quickly establishing that NASA, which handled billions of dollars in contracts annually, had just two people—or one and a half, since one of them was Webb, who had other duties—making sure that the companies it did business with did not discriminate. “I don’t think this gentleman over here that spent a year and a half on this program—if he has, evidently, some other responsibilities, I don’t think he is going to get that job done,” Kennedy said. “He has got $3.9 billion worth of contracts.”
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Webb meekly tried to defend himself. “I would like to have you take enough time to see precisely what we do.”

But Kennedy blew past him. “I am trying to ask some questions. I don’t think I am able to get the answers, to tell you the truth.”

At that point Johnson stepped in to defend Webb. “Do you have any other questions?” he asked Kennedy.

“That is all for me,” said the attorney general, and he stalked from the room.

Kennedy’s performance served many purposes, including venting steam from his encounter in New York as well as getting in some sucker punches against his nemesis, Lyndon Johnson. But it was also typical of the way Kennedy came to a new passion—intensely, with something to prove, enemies to make, and battles to be won. “Racial justice was no longer an issue in the middle distance,” wrote Schlesinger. “Robert Kennedy now saw it face to face, and he was on fire.”
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Johnson was humiliated
by Kennedy’s attack on Webb, but the next day he redeemed himself with a rousing speech at Gettysburg, Pennsylvania, part of the Civil War centennial commemorations going on throughout the early 1960s. The events had so far been tightly scripted to avoid any mention of race or slavery, except in the most abstract terms; the theme, if there was one, centered on regional reconciliation and the folly of brothers fighting brothers—as if the issue motivating the Civil War was just a misunderstanding, not the question of whether a nation founded on liberty could countenance slavery.

Johnson had initially tried to get out of delivering the speech, telling one of his secretaries to decline the invitation for him (she did not). Like his boss, the vice president had spent the late 1940s and 1950s in an ambivalent relationship with the issue of civil rights: to him it was another chip in a game of political poker. He opposed changing Rule 22, and he oversaw the evisceration of the 1957 and 1960 civil rights acts. That is not to say he didn’t value civil rights; after all, he took risks to make sure both acts passed. But since entering the vice presidency, and particularly since the start of 1963, Johnson had been taking an increasingly unalloyed stance on the issue, including a rousing pro-civil-rights speech on January 7, 1963, at Wayne State University.

It is hard to say why Johnson turned so resolutely on race. His own explanation, and one supported by many of his biographers, is that he had long supported civil rights, but as a senator from Texas he was bound to represent the attitudes—including the prejudices—of his state. Now, as vice president, he could cast those strictures aside. But Johnson also had a political calculus in mind: he was well aware that the white South was beginning to slip, slowly, out of the Democratic Party’s sleeper hold and into the more natural grasp of conservative Republicanism. His own vacated seat had been won, in a special election, by the right-wing Republican John Tower, and he had seen his good friend and Alabama senator Lister Hill almost lose to a Republican in the 1962 midterms. The Democrats needed a new base, and African Americans could provide it—if the party could give them a reason.

Johnson ended up going to Gettysburg, and he was glad he did. He let loose that day with a fiery denunciation of the country’s racial status quo. The vice president was not a gifted speaker; for much of his career, Johnson was a master of the backroom deal, the compromise, the arm twist. Aside from his canned campaign speeches, he had never had to convince, to win over an audience. And yet as he found civil rights, he also found a speaking style that suited him; the operator was becoming the orator, and nowhere were his newfound gifts more evident than on that day in south central Pennsylvania.
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After a few introductory words about the site’s hallowed ground and the sacrifice made by men on both sides, Johnson got to his main theme. “One hundred years ago, the slave was freed,” he said. “One hundred years later, the Negro remains in bondage to the color of his skin. The Negro today asks justice. We do not answer him—we do not answer those who lie beneath this soil—when we reply to the Negro by asking, ‘Patience.’ It is empty to plead that the solution to the dilemmas of the present rests on the hands of the clock.” Without saying as much, Johnson was aligning himself hand in glove with Martin Luther King Jr. and attacking, in all but name, his own president and his strategy of gradualism and nonintervention.
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“The solution is in our hands,” Johnson went on. “Unless we are willing to yield up our destiny of greatness among the civilizations of history, Americans—white and Negro together—must be about the business of resolving the challenge which confronts us now.” But Johnson also warned blacks not to lose faith in the law, or the possibility of change through it. “The Negro says, ‘Now.’ Others say, ‘Never.’ The voice of responsible Americans—the voice of those who died here and the great man who spoke here—their voices say, ‘Together.’ There is no other way.” The speech was duly noted in newspapers the next day, but few reporters paid close attention to it. If they had, they would have seen that yet another member of the White House inner circle had come around forcefully to the idea of major federal action on civil rights.
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Two days after Johnson returned, he was invited to a meeting at the White House to discuss the evolving civil rights bill. The president and attorney general were there, as was half the cabinet, not to mention the usual Justice Department and White House advisers: Marshall, Sorensen, White, O’Brien, Martin. The drafting process had been a whirlwind: since the first meeting about the bill in Robert Kennedy’s office, almost two weeks prior, Schlei and his team—including two twenty-year department veterans, Leon Ulman and Harold Greene, who had fled Nazi Germany as a young man and went on to serve as a federal district court judge—had been working nonstop as ideas and revisions to the draft poured in from various corners of the White House, the Justice Department, and the president’s allies on the Hill. “Whenever anybody had a suggestion, I’d go racing off and implement the suggestion,” Schlei recalled.”
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Still, very little of substance changed between the initial draft and the one on hand at the end of the month. The biggest alteration, Schlei said, was the addition of what he called “judicial words,” including a long-winded preamble full of legal jargon and posturing. The fear was that the bill’s reliance on the Commerce Clause would mean that it would end up in the House Committee on Interstate and Foreign Commerce, which was chaired by the segregationist Southern Democrat Oren Harris of Arkansas (who had had a brief turn in the limelight in 1959 as the head of the “quiz show” hearings, in which a number of TV game shows were accused of fixing their results). If it went to Harris’s committee, the drafters feared, it might never come out. To prevent that, Schlei said, “I rewrote the preamble of our bill so as to include as many terms as possible suggestive of the idea that the bill would fall within the Judiciary Committee’s territory,” where it would be shepherded by the liberal Democrat and civil rights partisan Emanuel Celler of Brooklyn.
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The draft had three main elements. First was a public accommodations law, rooted in the Commerce Clause, which banned segregation in non-owner-occupied hotels and motels, movie and stage theaters, and restaurants that did at least $150,000 in annual business or were located near a major highway—the key element for each establishment being that they had a firm connection to interstate business, either through the goods and services they offered or the clientele they served.

Second, the bill offered technical assistance to school districts to devise desegregation plans and offered financial aid to those with plans already in place; it also allowed the attorney general to intervene in lawsuits against schools or individuals that interfered with desegregation—essentially, this was Title III for schools.

And third, it created a statutory basis for the President’s Committee on Equal Employment Opportunity, which would allow it access to more resources. (Thanks to a 1944 amendment by Richard Russell, committees created by the executive branch, like the PCEEO, had limited access to funds.) The bill would also roll in the voting rights and Civil Rights Commission planks from the president’s February legislation, which was languishing on Capitol Hill.
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The conversation on June 1 focused on specifics. Was it better to set an annual income test for restaurants, or should it be based on the number of tables? What criteria should determine whether the attorney general intervened in a school desegregation lawsuit: Should it be based on whether the plaintiffs had the financial resources to sue themselves, or whether such an intervention would “materially advance” desegregation in the district? Or both?

What became clear in the course of the meeting was how much of the urgency to act came from the immediate politics of civil rights, and Birmingham in particular. At the outset, Robert Kennedy praised the legislation because “what this will do is get them into the courts and off the streets”—and “off the front pages of the paper.” The same went for the schools provision: “The reason we’re doing schools,” the attorney general said, “is because something negroes feel strongly about is education.”
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At one point President Kennedy turned to Johnson and asked for his input. “I don’t know,” Johnson said sheepishly. “I haven’t read the bill, I haven’t seen it.” A few minutes later, though, the vice president let loose with a lengthy critique of the bill, both as a policy and political matter. Though he agreed that “if we don’t do this, they’ll be out in the streets,” he felt the bill did not do nearly enough to address long-term problems, particularly black educational attainment and employment. He also cautioned the president to consider “how much of this can you chew.” It would take two to three months of Democrat versus Democrat combat, potentially damaging the party at the outset of a presidential campaign. “Nine out of ten people talking are going to be Democrats, and they’ll keep talking dictatorship and freedom and states rights.”

This was too much reality for Kennedy, who wondered aloud whether this was even worth it. “What is going to be the result if we don’t have any further legislation?” asked the president. “Will we just have these riots?”

“I don’t think we really have an alternative. You couldn’t go on and not have legislation,” interrupted Marshall. “You’d have a major fight in Congress, you’d have a lot of Republicans and a lot of Democrats putting legislation in. Everybody would be saying ‘where is your legislation?’ I couldn’t possibly defend that position. I think it’s absolutely essential that you have legislation.”

That seemed to snap the president out of his momentary doubt, and he dived back into the discussion. What about doing something on job discrimination, he said, like the FEPC proposal that liberals had been hawking since the end of World War II? Here Johnson, despite his earlier call to swing for the fences, recommended pragmatism. “I think you ought to try to get what you send up there,” he said. “FEPC never made much progress in the House.” In the end, Kennedy decided to merely endorse the idea of an FEPC, which had been included in several Republican and Democratic bills already under consideration in Congress.

Kennedy still wanted to do something on employment. Though his efforts to pitch the tax cut as a quasi-civil-rights measure that spring had come across as maladroit marketing, he did believe that helping blacks could not stop at civil rights laws alone. He was already quietly developing ideas for a more direct assault on long-term unemployment and poverty, ideas that would only reach fruition long after his death, as Lyndon Johnson’s War on Poverty. But he also recognized that the country was in no mood for civil rights legislation, a major tax cut,
and
a massive antipoverty measure. At one point he turned to Louis Martin and asked, “What’s the mood of the country and what should we do about it?”
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As Martin recalled, “I told them that they were concentrating on Birmingham and what was happening there but they also had to worry about the possibility of riots in Chicago, Detroit, Pittsburgh, and New York.”

To his surprise, Vice President Johnson nodded his approval. “Louis is right,” he said. Martin, feeling the wind at his back, said the president should include a Works Progress Administration for the cities, to the tune of $1 billion. “We’ve got a tremendous number of young unemployed kids who have no hope for the future,” he said.

The attorney general laughed. “Well, we might think about a half a billion,” he said.
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Instead, Kennedy settled for a pair of measures proposed by Secretary of Labor Willard Wirtz that he could take unilaterally—mandating that unions involved in government contract work desegregate their apprenticeship programs, and conducting a thorough search of the laws on federal employment to make sure they did not contain discriminatory measures. The meeting wrapped up, and the consensus was to announce the bill on June 4.