Means of Ascent

by Robert A. Caro

  Lyndon Johnson, Stevenson felt, had used the law against him, not the law in its majesty but the law in its littleness; Johnson had relied on its letter to defy its spirit. Stevenson had first sought justice from the people who knew the truth best, the Jim Wells Democratic Committee itself—and that committee had been willing to give him what he sought, to meet together and throw out the tainted ballots. But the law—in the form of the injunction Johnson had obtained from a George Parr court—had prevented the committee from doing so. Then he had sought justice from his party at a higher level—from its Executive Committee—and the law had stopped him there, too, as Johnson’s attorneys had convinced the committee that investigating the votes was “contrary to the law.” In that Executive Committee, Charles Francis had told him, shouting, to his face, You can “have your day in court. We’ll meet you there”—knowing even as he shouted that in the court to which he was referring, the State District Court, no effective action was possible before the case was made moot, and that no other state court would accept jurisdiction until after the District Court had ruled.

  After the 29–28 vote against him in the Executive Committee, Stevenson had still hoped that the full convention would deal with the “palpable fraud and irregularities”—and then had come the quip, “Let’s put it under the table,” and the roar of laughter from the men with whom Johnson had stacked the convention. To Stevenson’s young attorney friend from Junction, that laughter was symbolic. “That whole week, it was like Lyndon was laughing at Coke,” Callan Graham says. “It was as if he was laughing in his face, and telling him that he was so smart that the law couldn’t touch him. During neither of these proceedings, neither at the Executive Committee nor in the court, did Lyndon Johnson or his lawyers deny what we were saying. Their argument in both cases was that it didn’t make any difference legally. They were just saying that, true or not, we couldn’t do anything about it.” And, indeed, when, after the convention, Stevenson met with his own attorneys in his hotel suite, most of them told him the same thing.

  And that was an argument that Coke Stevenson could not accept. He loved the law that he had taught himself on the ranch, loved it as he loved his land, loved it with an intensity so deep it was almost religious, believed in its majesty, in its power to right a wrong. Now he had been told that the law was powerless to right the wrong that he felt had been done in this election. “For Coke, this just couldn’t be true,” says his nephew, Robert Murphey, “because if that was true, it would destroy something he had believed in all his life, something that was very important to him.” He went out for a walk on the streets of Fort Worth, alone, and a reporter, encountering him, asked him if the long battle was now over. Coke Stevenson’s big jaw came up. “Of course not,” he said. “We’re going to fight right on.” And that night, while the convention was cheering Lyndon Johnson, and Johnson was celebrating and sleeping and then flying off for a vacation, Coke Stevenson was fighting. He and Dan Moody, another former Governor, who had volunteered to serve as one of his attorneys, met for a while and decided that since there was no help available in the state courts, they would go to the federal courts. Moody said that because the primary involved a federal office, Stevenson could sue under the federal civil rights statute because he had been denied a civil right: the right to have the votes in the primary counted honestly. He could ask for an injunction or restraining order that would forbid the inclusion of Johnson’s name on the November ballot pending a full hearing in Federal District Court, and, should that hearing show that Johnson had been elected by fraudulent votes, he could ask for an order placing his own name on it instead.

  Moody was too tired that night to draw up the necessary petition for a restraining order himself, but there was that young attorney who had written the report that the canvassing committee had so blithely ignored. Josh Groce was wakened in his hotel room by a telephone call. On the line was Coke Stevenson, whom he had never met, and Stevenson asked him to turn his report into a petition for an injunction. While Groce was doing this, Stevenson, with all his legal advisers gathered in his hotel room, discussed which of the three federal judges who sat on the United States District Court for the Northern District of Texas to present it to. There seemed no good choice. One of the three was irascible, erratic, a judge lawyers shied away from; the second was too much a “brass collar Democrat,” one who would be eager to uphold the party’s Executive Committee; the third, former Lieutenant Governor T. Whitfield Davidson, was noted not only for his formality in a courtroom but as a “strict constitutionalist,” who might be predisposed against permitting federal intervention in a state election. But Davidson, while a fervent Democrat (he had been one of Roosevelt’s first prominent supporters in Texas), was also noted for his independence, and it was decided to present the petition to him.

  It had to be presented to him fast—before Johnson’s name went on the ballot. Attorney Connie Renfro of Dallas telephoned Davidson’s home and was told that the judge was vacationing on his sister’s ranch, but no one seemed to know exactly where in Harrison—or perhaps Upshur—County the ranch was located; Renfro, leaving Fort Worth at midnight, spent all night driving around East Texas; dawn was breaking before he found it. Braving a rather fierce-looking watchdog, he found the tiny, white-haired judge already awake, brewing coffee—and learned that Davidson’s insistence on the rules of court held firm even when the court was a ranch-house kitchen. The judge pulled a table into the middle of the room and sat at it as if behind a bench, had Renfro place a copy of the petition and proposed restraining order on it, studied them as Renfro read them aloud—and then, at 6:25 a.m. Wednesday morning, he signed the restraining order, setting the following Tuesday, September 21, for the hearing on whether to harden the order into an injunction. Speeding back to Fort Worth, Renfro filed the order with the clerk of the Federal District Court. Even as Lyndon Johnson was in a plane en route to his vacation, believing he was on the ballot at last, state election officials were being ordered to keep the Democratic line blank, at least until the hearing. Coke Stevenson went for another walk. He looked happier than he had for days.

  ON SEPTEMBER 21, assured by his legal team that his argument against federal intervention in a state election was strong and that Davidson would be predisposed toward it, Johnson strode into Federal District Court in Fort Worth, at the head of a long line of lawyers, deeply tanned and wearing a broad, confident smile. His hair was sleek and shiny with pomade. The dark blue of his suit’s heavy, rich fabric was broken only by the Silver Star pin and the precise points of the white handkerchief in his breast pocket. His white shirt was gleaming and starched. His necktie had a bright floral print. The pearl-gray Stetson in his hand was a 20X beaver. His wife was dressed as he liked her dressed, complete to the long feather curling up from her fashionable pillbox hat. The crowd in the oak-paneled, high-ceilinged courtroom was a political crowd: in the audience were Speaker of the House W. O. Read and other prominent state officials; Tom Clark’s brother Robert and other political influentials; political reporters; even one of the candidates defeated in the first primary, Cyclone Davis. At the attorneys’ tables sat political stars, not only Alvin Wirtz and Clint Small, but James Allred and Dan Moody; Allred, Moody and Stevenson—three former Governors of the state. As Johnson worked the crowded, noisy room, shaking hands, chatting in a relaxed manner, every inch the successful candidate, the scene seemed like a continuation of the convention that had so recently been held a few blocks away.

  But this wasn’t a convention but a courtroom, a courtroom very different from George Parr’s courtroom in Alice. Just before Judge Davidson entered, a marshal told the men who had taken off their suit jackets to put them on, and then he called out, “No smoking, gentlemen.” Coke Stevenson put out his pipe, Lyndon Johnson put out his cigarette. After the silver-haired jurist had taken the bench, in the words of one reporter, “just radiating dignity in a quiet way,” some of the attorneys—former Governors and glittering political names—went on talki
ng. “Now, gentlemen,” the judge said, “I will ask you not to carry on any consultation in the courtroom. If it is necessary to direct attention to the next man, do it very quietly.” The attorneys looked up at the judge, and sat down. The talking stopped. Whatever the outcome of Coke Stevenson’s petition would be, that petition was going to be heard in a setting very different from any in which his battle with Lyndon Johnson had previously been waged, in the setting Stevenson loved—not in a noisy, smoke-filled convention hall, but in a quiet, high-ceilinged courtroom, in a court not of politics but of law.

  And as soon as Moody began his opening argument, every trace of a smile was gone from Lyndon Johnson’s face.

  Moody’s first sentences contained some news for Johnson. He said that Coke Stevenson was no longer charging election fraud merely in Jim Wells County; he was broadening his complaint. He was charging that fraud had also been committed in Zapata County. And he was broadening it still further—into the county whose vote totals had been perhaps the most indefensible of all. Fraud had been committed, Moody said, in Duval County. He was therefore no longer talking about two hundred votes, he said, but many more—thousands, in fact; he was to tell Davidson: “We expect to lay before this court testimony that will affect thousands of votes in this election.”

  And, Moody said, he was prepared to prove what he was saying. “The ballot box in one of the precincts in Jim Wells County was in what is known as common parlance, ‘stuffed,’ ” he said. “That is to say, after the election had been held, and the votes counted, that additional votes were added.” He had witnesses to prove it, he said. They had been brought to Fort Worth and were ready to testify; at that moment, Moody said, they were waiting in an office just down the hall.

  Johnson’s attorneys argued as they had earlier that whether Moody’s statements were true or not, they didn’t matter. Johnson had been defrauded of votes, too, they said—in Dallas County, in Brown County, and elsewhere. Any investigation of voting fraud in Texas would be “fatally defective” unless all voting fraud in Texas were to be investigated, “all of the irregularities, throughout the length and breadth of this great commonwealth,” attorney John Crooker said. And if all the illegal votes were thrown out, Johnson would win by more than eighty-seven votes. They were prepared to argue the case on its merits, Crooker said, but not in this court: state court and state court alone was where this contest must be decided. And, he said, in terms designed to appeal to Davidson’s “strict constitutional” views: “They now seek to have Your Honor extend the federal powers.… We ask no further encroachment of the federal powers in Texas than has already occurred. If there is anything any more important than the purity of the ballot … it is the power of the sovereign states that … ought to be maintained in all its strength.”

  Crooker said that his side had not even made preparations for arguing the case on its merits in Davidson’s court, so confident was he that Judge Davidson would admit that his court was without jurisdiction. “Respondent Lyndon Johnson appears at this time solely for the purpose” of asking that Stevenson’s request for an injunction be dismissed because federal court has no jurisdiction. That, Crooker said, is “the sole pleading now on file, and the sole purpose … of appearing here, because of our confidence that under the law this court has no jurisdiction.”

  Moody, however, replied that those arguments did not apply to a civil rights case. Stevenson’s suit, he said, was being brought under a civil rights statute that allowed a federal suit in cases in which an individual has been deprived, “under cover of state law or customs or usage,” of rights “secured by the Constitution of the United States.” Stevenson had been deprived of such rights, he insisted: “The Constitution provides that a citizen has a right to become a candidate” and entitles him to an “honest count” of the vote. The plaintiff, moreover, was not just a candidate. He was a voter. “He has a right … as does every other voter in the state to have his vote honestly counted, honestly and legally, votes not thrown out and no stuffing of the ballot box.”

  And Moody argued also on broader grounds. “Under the law of Texas,” he said, “there is no remedy to correct such a wrong” as Stevenson had suffered. But did that mean that there should be no remedy anywhere? That someone could commit fraud and be immune from punishment for it? He did not believe that, he said. “I decline to believe that the courts of the United States are impotent to detect fraud and punish [it].” And that was why the jurisdiction of this court had been invoked, he said. “The jurisdiction of the Court is invoked to prevent wrong.”

  It was not merely Coke Stevenson who had been deprived of a federal right—a right guaranteed by the Constitution—by what had happened in the Valley during this election, Moody said; it was every voter who had voted honestly and had had his vote in effect canceled by one put in the ballot box dishonestly. “Your honor,” he said, “I can sum up in a word the nature of [this] suit. While it is an action in equity in the Federal Court, essentially it is a crusade for honesty in the ballot box and for the protection of the people of this state from fraud in election and from depriving the people of their honest choice in the election of a person to high office.”

  And then, before he recessed court for lunch, Davidson said a few words—and to the shock of Johnson’s attorneys they did not seem to be the words of a judge who felt that he had no jurisdiction in the case, or that the legal questions were as cut and dried as they maintained. “The court wants to say one or two words off the record,” he said. Wheeling around in his chair, he faced the two candidates, and spoke directly to them, in a low voice that the audience strained forward to hear. Under the present circumstances, the judge said, whoever won the nomination would win it under a cloud—and that cloud would not go away. “Public sentiment will crystallize into anti-Stevenson and anti-Johnson sentiment.… You will have the feeling among some in Texas that the winner has won on a technicality.” No matter who won, there would always be a shadow on his public career. Therefore, the judge said, he had a suggestion—“and it is only a suggestion, off the record and will not be included in my decision”: arrange to have the Democratic State Executive Committee place both names on the general election ballot, and “let the people of Texas decide the winner.”

  Stevenson needed no time to decide if he was willing to do as the judge suggested. “All smiles as the noon recess began,” in the words of one reporter, he said, “Sure I’m for it. I’m willing to run it over.” Pushing his way out of the courtroom, Johnson said, “No comment.”

  In a conference that noontime, Lyndon Johnson’s ten attorneys advised him to accept Davidson’s suggestion. It was hardly the suggestion, they pointed out, of a judge who doubted his jurisdiction, and, although Davidson had made no direct statement, the tone of certain other remarks by the judge indicated that he was likely to rule against them on the jurisdiction issue. If he took jurisdiction, there would be a wide range of possibilities, and most of them—an investigation of the South Texas boxes, for example—would be quite ominous for their client. Indeed, even the present hearing was ominous: those witnesses were waiting just down the hall; what if Davidson allowed them to take the stand? What might they say? Accept the judge’s suggestion—settle the injunctive suit with the compromise he suggested—and the hearing would be over. In explaining their recommendation that Johnson compromise, the only one of the attorneys still alive, Luther E. Jones, says simply: “The uncertainty of the legal processes: who knew what was going to happen, particularly in a case as complicated as this. And, you know, lawyers like to compromise: any settlement is better than a lawsuit, that kind of thing.” It was not inconceivable, his lawyers warned Johnson, that if Davidson held a full-scale trial on the issue, Johnson’s name would not be on the ballot at all. “The compromise that the judge had suggested here was that both go on the ballot, and the feeling was that in that case [Johnson] would win”: in a general election, the state’s conservative vote would be split between Stevenson and the Republican candidate
.

  The team of ten lawyers offering Lyndon Johnson this counsel—offering it unanimously—included not only former Governor (and federal judge) Allred, not only Alvin Wirtz, Johnson’s most trusted adviser, but, in Crooker and Cofer and Tarleton and Looney, a quartet of the most renowned and respected lawyers in Texas. When they gave clients advice, the clients usually followed it.

  Lyndon Johnson did not follow it. During the next few days in that September of 1948—those days of crisis—he was to display vividly many of the most striking qualities of his nature. One was the fierceness and determination with which he grabbed for political advantage, grabbed it and, once he had it in his grasp, held on to it. He had the advantage now—he had the certification from his party—and agreeing to Davidson’s compromise would mean relinquishing that certification, sharing it with the man from whom he had taken it. Another was the utter inability to comprehend the questions of morality or ethics raised by his actions, an utter inability to feel that there was even a possibility that he had violated accepted standards of conduct and might be punished for that violation. But, during this conference and during the following days, Lyndon Johnson was also to display many of the qualities that made him a leader of men.

  Among those qualities of leadership was a willingness to take responsibility for his own fate. This quality had been a constant in his career. No matter how strong the lure, he had never tied himself inextricably to Roosevelt or to Rayburn or to Herman Brown. If he had not placed his faith in princes, he was certainly not going to place it in lawyers. He would make up his own mind. Another quality was decisiveness; he might delay for a long time studying a decision, but when the time came to make it, he made it. And if he had to make it without study, if he had to make it fast, he made it fast. Lastly, there was the sheer force of his personality, the dominance of Lyndon Johnson, face to face, over other men, even over ten other men, even over ten famous and respected men operating in the field (the law) of their expertise, not his. Lyndon Johnson might, as on this occasion, be leading men in a battle whose aims and methods would not bear scrutiny. But he would lead.