The Bill of the Century: The Epic Battle for the Civil Rights Act (10 page)

Monday afternoon, Robert Kennedy and Marshall sat down with the president and several men from his staff—White, congressional liaison Larry O’Brien, speechwriter Ted Sorensen, and appointments secretary Kenneth O’Donnell—to work through the details and politics of the emerging proposal. The Justice Department men had drawn up a short memo with the key elements to a possible proposal. First, they wanted a bill to outlaw segregation in public accommodations like restaurants and movie theaters—not only because “this is an issue that affects all Negroes, even in the North,” but also because the constitutionality of Jim Crow laws was currently before the Supreme Court; should the court decide in favor of the laws (and against civil rights protesters), a provision like this would respond to “the wide frustrations and anger which such a decision would create.”
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There were two ways to go about banning discrimination in public places under the Constitution. They could either go with the Commerce Clause in Article I, Section 8—giving Congress the power “to regulate commerce . . . among the several states”—which would allow the federal government to ban segregation in any public accommodation that touched interstate commerce in any way; or the Equal Protection Clause of the Fourteenth Amendment, which banned discrimination by governments or government-sponsored or -licensed activities. Because the Commerce Clause had been used to justify much of the New Deal, Democrats had a soft spot for its application. Moreover, the Justice Department men, particularly Marshall and OLC head Norbert Schlei, were reluctant to rely on the Fourteenth Amendment. It had been used to justify a brace of Reconstruction-era civil rights laws, which were passed by Republican Congresses and were therefore favored by pro-civil-rights Republicans. The problem was that those laws were subsequently struck down by the Supreme Court. While much had changed since the late nineteenth century, and there was little chance that the liberal Warren Court would rule the same way, Marshall, Schlei, and others thought the risk was not worth it. The Commerce Clause was the safer route.
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Additionally, they considered legislation to protect the right to demonstrate, giving the Justice Department the power to sue local officials who were interfering with protesters. The concern here was the same as the one expressed at the May 12 meeting over whether to deploy troops in Birmingham: such a law could give the local authorities an excuse to pull back, putting the federal government “in the business of police protection.” At the same time, it would force the government to pick and choose which protests were worth defending, creating a de facto system of federal endorsement of certain acts of free speech, but not others.
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Finally, they agreed that legislation was needed on school desegregation, including a requirement that districts develop desegregation plans and the “power for the Department of Justice to bring suit upon the recommendation of the educational authorities charged with administration of the bill in the event that schools districts were completely uncooperative in the development of the plan.” This title, they noted, would not have any timelines.
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The president had just returned from a spin through the South, where he had addressed a warm crowd at Vanderbilt University, in Nashville—“I got better applause there than any place else in the South, I’ll tell you that,” he said, rocking back proudly in his chair—and then flew on to Muscle Shoals, Alabama, where he politely butted heads with Governor Wallace. From conversations he had on the trip, the president seemed convinced that it would be relatively easy to get Southern whites to accept a ban on segregation, if Southern blacks did not “push this thing too far.” To keep that from happening, Kennedy floated the idea of limiting the right to demonstrate, but pulled back immediately when Marshall balked.
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Marshall then brought up the demands for a broad Title III provision, and at the very least a robust public accommodations law. It was a civil rights proposal that the president found self-evidently necessary, but that his brother, for once, was the more reticent about. Since many drug stores in the South allowed blacks to buy food but not sit down, he reasoned, they were not being denied service per se. “They can stand at the lunch counters,” the attorney general retorted bluntly. Nevertheless, when the men began to hash out a wish list of proposals, Robert Kennedy included a public accommodations law alongside voting rights and school desegregation. He also floated the idea of sitting down with the owners of chain businesses such as theaters and department stores to see what it would take for them to “meet with Negroes and try to work it out on a community basis.” He suggested bringing in black leaders, including King, but the president wanted to hold off; “otherwise the meetings will look like they got me to do it,” he said. Instead, he wanted to meet with a delegation of mayors and governors first.
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As a measure of the president’s seriousness on the bill, he talked about bringing the Republicans into the fold, something he had never done before on civil rights. “I think it’s possible that as the mood of the country gets uglier and uglier, the Republicans are going to say we can’t play the Southern Democratic game anymore,” he said, and predicted that “they’ll join us in cloture and something will get by.”

Both O’Donnell and O’Brien were pragmatic partisans of the president, having known him since the beginning of his political career (O’Donnell’s relationship with the family went even further back—he had played varsity football with Robert at Harvard), and they both expressed deep reservations about the legislation. As O’Donnell later recalled thinking, “It’s very east for Nick Katzenbach to sit over there and say we should send a piece of legislation up to the Hill, but we’re the ones who have to get it through.”
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O’Brien, who had staved off presidential endorsement of the 1962 legislation, feared that a close alignment with the civil rights movement would hurt Kennedy among the Southern Democrats at a time when he needed their support for his tax cut. But for once, the pair—along with Sorensen, another holdout on the bill—were overwhelmed by the moment. Realizing the bill was inevitable, they insisted that they at least be allowed to begin with the hard work of smoothing the bill’s entry into congressional waters.
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Though the details of the meeting remained secret, news of the president’s emerging proposal quickly leaked to the media. On May 21, Hubert Humphrey told a Baltimore
Sun
reporter that Kennedy was considering an omnibus bill, in part as a response to “increasing restiveness” among senators. Just a few days before, the bipartisan team of Thomas Dodd, a Democratic senator from Connecticut, and Senator John Sherman Cooper of Kentucky introduced their own public accommodations proposal. “Neither bill,” wrote the
Sun
, “under present conditions in Congress, would have much chance of passage, since both would be opposed to the limit—including filibusters—by Southerners.” The next day, the president told reporters that “we are considering whether any additional proposals will be made to the Congress. And the final decision should be made in the next few days.”
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While in Birmingham, Marshall had spent some time talking with Dick Gregory, a black comedian and outspoken civil rights activist. Gregory said that part of the administration’s problem was that the Kennedys never actually talked with black people. Marshall relayed the suggestion to Robert Kennedy. The attorney general asked if Marshall could set up a meeting with the author James Baldwin, whose essay “Letter from a Region of My Mind” he had read in the
New Yorker
. Marshall got in touch with Baldwin, who agreed to come to Washington to meet Kennedy on May 23.
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When the day arrived, though, Baldwin’s plane was delayed, and by the time he got to Kennedy’s northern Virginia home, the attorney general had only twenty minutes to talk. Kennedy began by admitting that the proposals under consideration were focused on issues facing Southern blacks and would do little to help those in the Northern cities. What, he asked Baldwin, should be done? Baldwin offered to assemble a group of black activists and intellectuals for Kennedy to meet with. By chance, Kennedy said, he was going to be in New York the next day—why not set up a get-together that afternoon?
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The next morning, Kennedy, Marshall, and Oberdorfer flew to New York for a meeting with the heads of several major five and dimes, theaters, and department stores—Woolworth’s, Kress, J. C. Penney, McCrory, Sears—to discuss what they could do to desegregate their branches in the South. Kennedy came away with noncommittal responses, assurances that the chains would do the best they could but that they could not promise anything that would undermine their profits, which in the South, they insisted, meant acceding to customers’ demands that they remain segregated.
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Kennedy and his aides then headed to his father’s apartment at 24 Central Park West for the meeting with Baldwin’s hastily assembled focus group. If not a who’s who of the black community in New York, it was a good cross-section: Kenneth Clark, the eminent psychologist from the City College of New York; the singers Harry Belafonte and Lena Horne; the playwright Lorraine Hansberry; Jerome Smith, a twenty-four-year-old veteran of the Freedom Rides; Baldwin’s brother David and a friend of his, Thais Aubrey; Martin Luther King Jr.’s lawyer, Clarence Jones; and the Urban League activist Edwin C. Berry. (The white actor Rip Torn, who was active in civil rights, was also there.)
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Clark and Berry were supposed to set an intellectual, measured tone for the meeting, but it derailed almost immediately. “In that moment, with the situation in Birmingham the way it was,” said Horne later, “none of us wanted to hear figures and percentages and all that stuff. Nobody even cared about expressions of goodwill.”
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Smith, a passionate man with a pronounced stammer, began by saying, “Mr. Kennedy, I want you to understand I don’t care anything about you or your brother.” He said it was obvious that the Kennedys did not care about Southern protesters. In fact, he said, just being in the same room as the attorney general made him sick to his stomach.
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Kennedy was visibly offended, but rather than engage with Smith, he tried to ignore him. He began addressing Baldwin, but Hansberry cut him off. “You’ve got a great many very, very accomplished people in this room, Mr. Attorney General. But the only man who should be listened to is that man over there,” she said, pointing at Smith. The young Freedom Rider began explaining what he had lived through in the South, emphasizing how little the federal government had done to help him.

Eventually Kennedy interrupted him. “Just let me say something,” he said.

“Okay,” said Smith, “but this time say something that means something. So far you haven’t said a thing!”

Kennedy tried to explain the bills, but Smith just scoffed. The situation was far too dire. He was a nonviolent man, he said, but he was unsure for how long. “When I pull the trigger, kiss it goodbye!”

Trying to inject some balance to the conversation, Baldwin asked Smith if he would ever fight for his country. “Never!” Smith said.

That drove Kennedy over the edge. He had been just a few years too young to fight in World War II, the war that had killed one of his brothers and made a hero of another. “How could you say that?” he demanded. “Bobby got redder and redder and redder, and in a sense accused Jerome of treason,” recalled Clark.
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Kennedy asked for ideas. Baldwin said the president should personally escort students into the University of Alabama who were being blocked by Governor Wallace. He should get rid of J. Edgar Hoover at the FBI. The Department of Justice should be more aggressive in Birmingham. The attorney general insisted that he was working closely with King, which brought forth peals of cynical laughter.

Eventually Kennedy ran out of the energy to both respond to the attacks and keep his anger in check, and he just sat there quietly as Baldwin’s panel took turns berating him, his brother, and the federal government. “It became really one of the most violent, emotional, verbal assaults that I had ever witnessed before or since,” said Clark. Finally, after three hours, the meeting broke up.

The encounter had a profound effect on Kennedy. At first he was just angry. When Belafonte apologized afterward for the group’s hostility and said he agreed with Kennedy, the attorney general glared at him and said, “How could you just sit there and not say anything?” After returning to Washington, he sat down for a debriefing with Schlesinger. “They don’t know anything,” he said. “They don’t know what the laws are—they don’t know what the facts are. They don’t know what we’ve been doing or what we’re trying to do. You couldn’t talk to them as you can to Roy Wilkins or Martin Luther King. They didn’t want to talk that way. It was all emotion. Hysteria. They stood up and orated. They accused. Some of them wept and walked out of the room.”
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But over the next several days and weeks, Kennedy began to change. As his own anger faded, he found that the evident passion and stinging sense of injustice he has witnessed in Baldwin’s group had left an impression on him. “The more I saw him after this,” Belafonte recalled, “the more he no longer had questions that were just about the specifics of federal government intervention, or the civil rights strategy of the moment. He began to move to broader philosophical areas, began to know more about cause and effect and why.” Asked later to illustrate Kennedy’s education in civil rights, Marshall shot his hand straight up. Ed Guthman saw it, too. “After a day or two, Bob’s attitude about the meeting began to shift. He had never heard an American citizen say he would not defend the country and it troubled him. Instead of repeating, as he had, ‘Imagine anyone saying that,’ he said, ‘I guess if I were in his shoes, if I had gone through what he’s gone through, I might feel differently about this country.’”
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