The Bill of the Century: The Epic Battle for the Civil Rights Act (18 page)

As the day drew on, Kennedy grew more testy and dismissive in his answers. George Meader, a Michigan Republican, asked Kennedy if he was familiar with the Republican bills. “I am not,” Kennedy said, with impolitic insouciance. “I think the chairman said, there are 165 bills, or 365. I have not read them all.”
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Meader seemed to find the attorney general’s answer acceptable, but his colleague from the full committee, John Lindsay of New York, did not. As Meader was rambling on about the Fourteenth Amendment, Lindsay interjected, “Would you yield to me?”

Meader gladly gave Lindsay the floor.

“I am quite deeply disturbed, Mr. Attorney General,” Lindsay began, “that you have never bothered to read this very important legislation that was carefully drafted and introduced by four of us on the minority side of this committee and many additional Republican members, long before the administration saw fit to take any position on this subject at all.” Lindsay had recently introduced his own public accommodations law, to complement the raft of bills introduced by Republicans introduced since the first of the year. What is more, Lindsay said, his bill relied on the Equal Protection Clause, which would sidestep the need to analyze the size of each business to see if it met the interstate commerce test. And, he said, this being 1963, eighty years after the Supreme Court’s disastrous ruling on the Equal Protection Clause, there was little chance the title would be found unconstitutional.
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“Congressman, I am sorry I have not read all of these bills and I am sorry I have not read your bill,” Kennedy snapped. “I personally think, I join with you, that the Supreme Court probably would uphold it. But the fact is that there is a Supreme Court decision on the books at the present time which declares it unconstitutional. That is the law of the land at the present time.”

That set Lindsay off. “In view of the fact that you apparently did not consider these bills at all I can’t help but ask the question as to whether or not you really want public accommodations legislation or not.” Then he turned up the heat a little more. “Let us be frank about it. The rumor is all over the cloakrooms and corridors of Capitol Hill that the administration has made a deal with the leadership to scuttle the accommodations” title.

Celler jolted up. “If I am part of the leadership I have not heard of it.”

“I am not referring to the chairman,” Lindsay said.

“Let us confine ourselves to specifics and withdraw all rumors,” Celler said. But he had lost hold of the reins.

“My question is,” continued Lindsay, “is the administration prepared to press for public accommodations legislation even though the Congress has to stay here until New Years to get it through? Will you settle, if necessary, for the Fourteenth Amendment approach, the Lindsay approach, in order to get a maximum number of votes to get a bill through? I am not sure that you can get a bill through which is based on the Interstate Commerce Clause.”

Kennedy struggled to contain himself. “There were an awful lot of statements made, Congressman. I am surprised by this, but maybe I shouldn’t be, that you would come out here in this open hearing and say that you heard these rumors and have nothing more to substantiate them than the fact that you have heard rumors in the cloakroom. I think it has been made clear, and I don’t think that the President nor I have to defend our good faith in our efforts here to you or to really anyone else.”

Lindsay pulled back. “I think we can agree on one thing which is that we want a bill,” he said. “I am not sure that you have the votes or can get the votes if you insist on just the one method and this is what troubles me.”

A few minutes later, he leaned back to his aide Robert Kimball, his point person on civil rights and the author of several of the Republican bills. “Do you think I was too hard on him?” Lindsay asked.

“Well maybe a little,” Kimball said. “But I can understand why you were.” Lindsay was serious about civil rights as a Republican issue and had been working hard on his own bill for months—only to see the attorney general ignore it. “I thought somebody should say something,” Lindsay said. But there was a personal element to the attack: Katzenbach later recalled that the two men had once had a shouting match during a party at the Manhattan home of George C. Lodge, the son the Massachusetts Republican senator Henry Cabot Lodge Jr., and had carried a mutual grudge ever since; it is also possible that Lindsay foresaw the day when Kennedy would decide to run for office himself and turn to New York City—Lindsay’s territory—to establish his base.
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Personal politics aside, Kennedy had clearly made a gaffe by dismissing Lindsay’s proposal so summarily. It insulted not only a leading liberal Republican, but by extension the entire Republican Party, the support of which the White House desperately needed. But there was good reason to be wary of the Fourteenth Amendment, aside from the constitutional question. If enforcement relied on licensure, then all a recalcitrant state needed to do to get out from under the law was to amend or even dissolve its licensing system. That might be a bad thing for public health—without it, anyone could be a barber, or a doctor—but it would keep the federal government from enforcing desegregation.

There was another significant exchange that day. At one point William Miller, a Republican from western New York who was serving as the chairman of the Republican National Committee (and would be Barry Goldwater’s running mate in 1964), asked whether Title III, which dealt with school desegregation, also mandated school integration—in other words, whether districts with schools that were legally open to all, but were overwhelmingly white or black thanks to housing patterns, were required to take active steps to achieve racial balance. In New York, he said, “it would necessitate the cost of hundreds of thousands of dollars just to create a racial balance and would possibly require white students to spend two or three hours on a bus just to get to another school to comply with racial balance.” Miller’s was not an idle question—on June 18, James Allen Jr., New York’s state education commissioner, said that it was not enough to ban segregation, but that the state also had to eliminate “racial imbalance.” De facto school segregation was, beside fair housing, the hottest racial topic in Northern communities; just a few weeks earlier, nearly a hundred people had crammed into a school board meeting in Boston to demand that the city begin bussing students to achieve racial balance.
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The question caught Kennedy off guard; he was so focused on addressing Southern civil rights issues that he had given scant thought to the concerns of the rest of the country. “It is not our objective to try to get balance because perhaps that is not the best way to proceed,” he said. “But at least we felt it should start to be explored and communities which are dealing with this problem should have the benefit of expert advice and perhaps some economic incentive to try to deal with it.” Still, Miller’s question hinted at a whole new front of opposition to the bill, and another area where it failed to address the concerns of blacks living outside the South.
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The day ended with a whimper; Kennedy had made his appearance and defended the bill as best he could, but he had proved a poor advocate—unprepared on the details, unwilling to sit through the frustrating but predictable hail of pinprick questions from the dais. The next day’s headlines said it all: robert kennedy offers to modify civil rights bill, said the
New York Times
; r.f. kennedy o.k.’s race bill limits, said the Baltimore
Sun
—hardly the bold opening the administration was looking for. Nor did the bad press stop. Lindsay was not alone in hearing rumors of a possible compromise. “It is believed in some quarters,” reported the
Los Angeles Times
, “that the actions of the Southerners indicate that a filibuster can be avoided, and a watered down, but meaningful, civil rights program can be enacted.”
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More critically, though, Kennedy revealed how poorly the White House and the Department of Justice were prepared to work with Republicans. Lindsay in particular was key. Though he was too liberal to have much influence among the rank-and-file Republicans, the administration needed him on its team; otherwise, he could align with liberal Democrats, who could then claim their own unwieldy (in the administration’s eyes) alternative had bipartisan support.

Three days later, Katzenbach sat down to write an extensive memo to Robert Kennedy detailing his strategy for getting the bill out of Congress and to the president’s desk. Katzenbach was not a born politician—he had spent most of his career in academia, most recently at the University of Chicago. But he was a quick study and proved to have a sharp tactical mind; he also spent hours that summer quizzing old congressional hands like Lawrence O’Brien on the intricacies of House and Senate procedure and, more importantly, the unwritten rules that dictated whether a bill would live or die on Capitol Hill.

He began his memo by working backward: if the goal was to get the bill intact through the Senate, then a filibuster was inevitable—which meant they needed 67 votes to stop debate and bring the bill to a vote, which meant winning 19 of the 34 Republican votes (assuming all 48 non-Southern Democrats voted for the bill). The only way to do that, he wrote, was to get Dirksen on board, as early as possible. Why so early? Because Katzenbach could then take Dirksen’s support for the bill to House Republicans, who were open to civil rights but wary of siding with legislation that might get pared back in the Senate. Dirksen, of course, did not support Title II, but Katzenbach hoped that his support on everything else could give momentum to the bill in the House, and that by the time it reached the Senate, Dirksen would have to choose between agreeing to the entire bill or standing in the way of historic legislation. Given Dirksen’s enormous self-regard and well-known reputation as a dealmaker, Katzenbach told Kennedy he was confident it would work out.
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But that still left the House. Though Katzenbach did not say it explicitly in the memo, everyone in the administration knew that Kennedy’s testimony had been a disaster, insulting potential Republican crossovers and giving the impression that, once again, the White House was not as supportive of civil rights legislation as the president had said on TV. They needed a strategy, not just an assumption that they could offer a moderate bill and watch the Republicans fall in line. And the first step in that direction was to woo McCulloch—in person, and with a gesture that underlined the White House’s awareness of the critical role he would play.

The next week Congress was in recess for the Fourth of July holiday, and most members went back to their home districts, including McCulloch. On July 2, Burke Marshall followed him.

McCulloch’s son-in-law, David Carver, met Marshall at the Dayton airport and drove him to Piqua. The two took an extended tour of the town, as McCulloch was giving a speech that morning to the local Rotary Club. Finally, early in the afternoon Marshall climbed the stairs to the second-floor offices of McCulloch, Felger, Fite, and Gutmann, located in the handsome neoclassical Piqua National Bank Building, not far from the Miami River.
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Marshall’s mission that day was to get McCulloch behind the bill. Most congressmen would have scoffed: here was a representative from the other party, just 16 months before a presidential election, asking him to drop his own legislation on a potentially decisive issue and back the administration’s. McCulloch, though, agreed almost immediately—contingent on Marshall’s promise that the bill would not get trimmed in the Senate, and that Kennedy would give the Republicans equal credit. The first demand was already part of the administration’s strategy, and the second was a small price to pay for cooperation. Marshall’s trip was a breakthrough—with McCulloch on board, House Republican buy-in was almost guaranteed. The two men shook on it, and Marshall caught a late flight back to Washington.

Robert Kennedy was elated. Not only had Marshall brought back great news from Ohio, but representatives from around the country returned to Washington to report that their constituents were strongly behind Title II. As the president said in a statement after a July 9 breakfast with the congressional leadership, “Even though the public accommodations section is causing controversy, it is clear to most Americans that when the basic constitutional rights of an individual to be treated as a free and equal human being come into conflict with the preferences of those who operate public accommodations, then the elementary rights to equal citizenship and equal treatment must prevail.”
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While Kennedy was wrangling with Congress over the civil rights bill, movement leaders were wrangling over the planned march on Washington. The June 22 lunch in Walter Reuther’s Washington hotel suite had resolved nothing; though King had agreed in theory to a march—a rally, really, perhaps around one of the monuments on the Mall—instead of a moving, shouting, singing, provoking demonstration, there was no formal agreement, and both the NAACP and the United Auto Workers refused to back the project.

The day after the meeting at the White House, King flew to Detroit for a “Walk to Freedom” rally that would provide a preview of the March on Washington. Organized by local labor activists and church leaders in the face of opposition from the local NAACP, the event was a massive success: 125,000 people, including Mayor Jerome Cavanaugh, marched down Woodward Avenue, Detroit’s main thoroughfare, to Cobo Hall, where King tested out some of the lines he would later polish to a historic high gloss in Washington: “I have a dream this afternoon that one day, right here in Detroit, Negroes will be able to buy a house or rent a house anywhere that their money will carry them.”
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