The Bill of the Century: The Epic Battle for the Civil Rights Act (17 page)

After a brief stop at Camp David, Kennedy flew to Europe, where on June 26 he stood before the Rathaus Schöneberg in West Berlin and declared “Ich bin ein Berliner.” That same day, his brother was making his own important appearance—as the opening witness in the House Judiciary Committee’s hearings on the civil rights bill.

The House Judiciary Committee was the province of Emanuel Celler, a House veteran from northeast Brooklyn who had taken office during the Harding administration. Manny, as he was known to his friends, was born in 1888 in Brooklyn, the grandson of two sets of German immigrants and the son of a whiskey rectifier (that is, someone who buys and redistills raw whiskey). He went to Columbia for his undergraduate and law degrees, then ran his own law practice until he won election to the House in 1922. As a young man he was renowned for his endlessly energetic ambition, but by the early 1960s he had aged into an avuncular, genial politician. He was beloved by children in his district for his magic tricks, particularly ones involving rabbits. He had other extracurricular avocations as well. At the time it was acceptable for a sitting member of Congress to hold an outside job, and many members of the Judiciary Committee maintained law practices back in their districts. Celler was no exception—a fact that brought him under harsh criticism toward the end of his career from the columnist Jack Anderson, who accused him of using his political position to push the interests of one of his clients, a power plant construction firm.
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Having Celler officially in charge of the bill in the House was a double-edged sword. He was a fiercely loyal Democrat, with a deep admiration for John F. Kennedy. But Celler was also much more liberal than the administration, and he was pulled further left by the growing number of black voters moving into his district, which had once been a bastion of white ethnic voters.
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And while Celler was known for his tight, partisan control of the Judiciary Committee, by 1963, age had loosened some of his grip. At times he was little more than a figurehead, with much of the substantive work being done by the committee’s staff director, Bess Dick, and its general counsel, Bill Foley. Still, Celler had enough power over the committee to shunt the civil rights bill into Subcommittee 5, ostensibly focused on antitrust—Celler’s legal specialty—but really a catchall spot for legislation in which Celler had particular interest. Alongside Celler were six decidedly liberal Democrats, including Robert Kastenmeier of Wisconsin, Peter Rodino of New Jersey, and Jack Brooks, a maverick from Texas (the Republicans were all conservatives, including one of the few Southern Republicans in the House, Florida’s William Cramer).
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Seated to Celler’s right on the committee dais was the ranking Republican, William M. McCulloch of Ohio. The two were close friends, but aside from their abiding interest in the law—McCulloch, like Celler, had a healthy legal practice back home—they had almost nothing in common. Celler was the product of New York’s working-class, immigrant cosmopolitanism; McCulloch was born in 1901 on a farm outside the central Ohio hamlet of Holmesville, the descendant of abolitionists who had settled the area in the decades before the Civil War.
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After college, McCulloch moved to Jacksonville, Florida, to practice law. In rural Ohio, he had lived in a monochromatic world where he rarely saw blacks; in Florida he saw the awfulness of racism in its most mundane yet hideously arbitrary forms—one department store might forbid blacks from using a dressing room, while another might bar them from coming in at all. McCulloch had been raised to believe that racism was the product of ignorance and that intelligent, educated people like himself would know better than to traffic in prejudice. Yet here he was, mixing with local lawyers and businessmen who proved often to be the most vicious defenders of Jim Crow racism. “It’s amazing how persons of good education and good business experience are so personally prejudiced,” he told an interviewer years later.
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McCulloch returned to Piqua, Ohio, where he opened a law practice. But he also grew active in local civil rights politics, acting as an adviser to the Piqua branch of the NAACP in its push to desegregate the city’s restaurants. He won election to the House of Representatives as part of the Republican landslide of 1946—even though, as one reporter later wrote, “his personality was so cold many observers classed him as an arrogant stuffed-shirt individual.”
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McCulloch’s early years in the House were defined by the clash between his strict adherence to small-government, balanced-budget conservatism and his quiet, rock-hard commitment to civil rights—all the more surprising given that only 2.7 percent of his voters were black. He continued to support efforts to end government-sponsored segregation, but he was wary of laws that intruded on private property, like FEPCs, a position that drew the ire of the
Cleveland Call and Post
, the state’s largest black newspaper. Yet in 1956 and 1957, he led the House Republicans in not only supporting Eisenhower’s civil rights bill, but defending it against efforts by Senate Majority Leader Johnson to weaken it—a campaign that led the
Call and Post
to revise its previous assessment. “Red-haired mustached Bill McCulloch has proved our judgment of him was a gross mistake,” wrote John Combs, one of the paper’s political columnists.
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McCulloch sponsored Eisenhower’s 1959 civil rights bill, which required the retention of voting records, extended the Civil Rights Commission, and gave courts the power to appoint election referees where rights violations were known to occur—a small bill, to be sure, but McCulloch put the best spin he could on it. When House Rules committee chairman Howard Smith claimed that the bill would put manacles on the South, McCulloch retorted, “We have no intention of putting manacles on anyone. On the other hand, I would like to break the chains that have held others in bondage and denied them their constitutional rights.”
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Yet like many Republican civil rights advocates, McCulloch’s relationship with pro-civil-rights Democrats, and the movement, was strained. To him, liberals were either inept idealists or crass opportunists, who saw civil rights as a tool for grandstanding and gaining black votes—but not, in his mind, achieving the sort of incremental results that he felt were the only realistic way forward. He called out the Department of Justice’s 1962 literacy test bill, which would declare anyone with a sixth-grade education as literate enough to vote, as “very limited,” noting that millions of black adults lacked such qualification and even Abraham Lincoln would not have made the cut.
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McCulloch was particularly incensed over the way Johnson and the congressional Democrats had conspired to pare back the 1957 civil rights bill after so many Republicans, under McCulloch’s direction, had risked their political standing at home to support it in the House. That betrayal still grated at him in June 1963, when the administration asked him to cosponsor, with Celler, H.R. 7152—a request that he swiftly rejected, not wanting to tie himself too closely to a piece of legislation that the Democrats might well drop or water down in the future, or, should the two parties manage to get it safely to passage, claim as their own.
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And, after all, the Republicans had their own bills on the table. By mid-June 1963, more than a hundred major civil rights bills sat before the House, many of them Republican-sponsored, and many of them in the Judiciary Committee. Even at this early point, national attention was focused on how the bill would fare before a Senate filibuster. But how the two parties—and these two powerful representatives—navigated the partisan politics in the House would determine whether the bill made it to the Senate in the first place.

On May 8, while the Birmingham crisis reached its highest pitch, Celler had opened hearings in Subcommittee No. 5 on 89 of those bills—41 from Democrats, 49 from Republicans. The nation, Celler said in his opening statement, was on the brink of disaster. “The deprivation of civil rights to a class of our citizens has, we must admit, led to smoldering resentment by the dispossessed and this smoldering resentment has to explode,” he said. McCulloch endorsed Celler’s statement, and extended the committee’s view from the South to the rest of the country. “What is happening in Little Rock and New Rochelle, in Oxford and Chicago, in Birmingham and Rapid City, is convincing truth that tension exists and resistance remains.” The country, he said in an echo of some of the most liberal commentators on the race crisis, was undergoing a sea change “in the state of minorities from that of master-servant to that of brother-to-brother.”
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The hearings, however, drew almost no public attention, and even the sub-committee members paid only passing notice. Then, shortly before 10:00
a.m.
on June 26, Robert Kennedy, with Marshall in tow, marched through the French doors of Room 346 of the Old House Office Building to address Subcommittee 5. Suddenly, the civil rights hearings were the hot ticket on Capitol Hill. The subcommittee had eleven members, and all were present. Another fourteen members from the full committee had been allowed to join the committee behind its horseshoe-shaped dais. There was space for just seventy seats in the audience, and the room was packed to standing room only with reporters.
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Kennedy had a difficult task: he had to defend the administration’s previous efforts, explain why circumstances merited a more robust approach, beat back the liberal Republicans’ own legislation—and yet also portray the bill as a moderate, pragmatic solution that conservative Republicans could endorse.

He did this by inverting the history of the last two and a half years: rather than using the federal government’s circumscribed powers on civil rights as a cover for doing nothing, as his department had done, he claimed that the administration had done the most it could with the limited tools at its disposal. “We have made significant progress in enforcing the Civil Rights Acts of 1957 and 1960,” he said. But the past several months had demonstrated that the federal government needed the power to do more. “The events that have occurred since the President’s first message—in Birmingham, in Jackson, in nearby Cambridge, in Philadelphia and in many other cities—make it clear that the attack upon these problems must be accelerated.”
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Kennedy also defined the core of the bill: Title II, rooted in the Commerce Clause, a discussion that took up a third of his twenty-five-page statement. “Discrimination in public accommodations not only contradicts our basic concepts of liberty and equality, but such discrimination interferes with interstate commerce and the development of unobstructed national markets,” he said. He also tried to preempt what had already become the leading Southern Democrat talking point against the title: that it violated property rights by forcing business owners to serve everyone equally, regardless of race. “Some of those who complain most loudly about interference with private property rights, ironically, are often those who most stoutly defend the laws, enforced by a number of states, which forbid Negroes to be served,” he said (an echo of Samuel Johnson’s 1775 quip, “How is it that we hear the loudest yelps for liberty among the drivers of negroes?”).
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His statement over, the attorney general began to take questions from the committee, and immediately ran into problems in the form of hostile questions from his critics, cold shoulders from his allies, and a surprising ignorance of the bill’s mechanics on his own part. In response to a query about the limits of the title, Kennedy said that the key criterion was how involved a business was in interstate commerce. “As far as the department store, retail shop, market, drugstore, gasoline station, and lunch room are concerned, the establishment must be involved to a substantial degree with interstate commerce,” he said. “So that takes it out of the category of just the very small.”
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“What is meant by substantial?” asked Celler.

“It is more than just minimal.”

“I take it the legal phrase de minimis is used.”

“I translated it, Mr. Chairman,” Kennedy said testily.

None of this was very satisfactory to the rest of the panel, especially the liberal Republicans from the main committee who were sitting in for the day. The bill did, after all, include language connecting it to the Equal Protection Clause of the Fourteenth Amendment, which would ban discrimination by a business licensed in any way by the government, down to the smallest barbershop. But it pointedly did not rely on the Equal Protection Clause, and instead made the Commerce Clause its primary justification. According to the administration, the Fourteenth Amendment had been rendered so narrowly applicable by the Supreme Court in the post-Reconstruction era that even with the changing times, the administration did not want to take an unnecessary constitutional risk. But the other obvious, but unstated, reason was political: the Fourteenth Amendment was a “Republican” tool, passed by a Republican Congress after the Civil War, while Franklin Roosevelt had used the Commerce Clause to greatly expand the power of the federal government during the Depression. This was a slight that many liberal Republicans could not abide.

By midafternoon, the questions still had not moved off Title II. At one point Kennedy let himself get trapped into admitting that “it is very possible that you could have an establishment, for instance, in a city or community that didn’t have anything to do with interstate commerce”—and thus untouchable by the bill. And he agreed that “Mrs. Murphy,” a hypothetical widowed owner of a small boardinghouse, should not be covered. Though this limit was always part of the administration’s plan, the next day newspapers depicted Kennedy’s answer as a major concession, and evidence that the administration planned to jettison much of the bill as it made its way across Capitol Hill.
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