MEETING THAT EVENING with his ten attorneys (now, in this emergency, supplemented by others) in a large conference room at the Texas Hotel, Lyndon Johnson was confronting, in what the Austin American-Statesman called “the greatest political controversy of all time in Texas,” a legal situation so unprecedented and so tangled—and with so wide a range of possible outcomes—that, as the Associated Press reported, “In the midst of the confusion and present uncertainty … the best legal sources were unwilling to comment on what might happen.” As one historian was to write: “Since there was no parallel or precedent even in the politically bizarre state of Texas, no one knew what would happen in the Senate race” if, by October 3, Davidson had not permitted Johnson’s name to be added to the ballot. And the longer Johnson’s attorneys discussed the crisis, the more daunting it appeared. For what, after all, were his options? A write-in campaign? That was an unattractive alternative. He might lose such a campaign to Stevenson. Moreover, far fewer voters would take the trouble to turn out on Election Day and write in a candidate’s name than would vote for a name on the ballot. If Stevenson was also not on the ballot, the overall Democratic vote would be much smaller than usual, and Johnson would be dividing that write-in vote with Stevenson; even if he should defeat Stevenson, there was no certainty that in these circumstances he could defeat the Republican candidate.
Appealing Davidson’s injunction to a higher court was a possibility, of course, and on appeal the injunction might well be overturned. But it was hard to conceive that this one could be overturned in time to get him on the ballot. Any appeal, his lawyers explained, would have to be heard first by the United States Court of Appeals for the Fifth Judicial Circuit, of which Davidson’s court was a unit, and the Court of Appeals was not scheduled to convene until October 4, the day after the deadline. Even if they managed to persuade a single circuit judge, sitting alone, to stay the injunction—an unlikely event—Stevenson could then appeal that stay to the United States Supreme Court, whose fall term also began on October 4.
Johnson could do what he had been threatening to do for weeks: demand an investigation of other counties besides Jim Wells, Zapata and Duval. He could even demand a statewide re-count. Davidson had indicated his willingness to grant such demands. Those demands might, however, be unwise for many reasons—including the possibility that investigation might reveal as fraudulent more of his votes than Stevenson’s. Moreover—the most brutal fact—the wisdom or folly of such a course was beside the point now. It might have been feasible in the last week of August, when the primary had been held. It was not feasible in the last week of September. A widespread investigation or a re-count could certainly not be completed by October 3. There was no time.
Another aspect of the situation had also to be considered.
Under Davidson’s order, ballot boxes—including Box 13 from Jim Wells County—were going to be opened. Lyndon Johnson had been trying for weeks to keep those boxes from being opened. He had, through George Parr’s court, stopped the county committee from opening them. He had, through his deal with the Loyalists at the convention, stopped the state committee from opening them. But they were going to be opened now.
Who could predict the ultimate result of that? The brief glimpse of the Box 13 poll list that the Alice reformers had snatched, supplemented by the testimony of a few witnesses, made it difficult to doubt that fraud had occurred in that precinct. What might be the result of a full inspection of the list, combined with the unlocking of the precinct ballot box (which allegedly contained, after all, not merely 200 but 965 votes marked for Lyndon Johnson)? And Box 13 was only one precinct. What would be the result of the Federal Masters’ unlocking all the ballot boxes in Zapata County—and in Duval County, where, out of 4,679 persons eligible to vote, 4,662 had allegedly gone to the polls, and 4,622 of them had allegedly cast ballots for Lyndon Johnson? What would be the result of the Masters’ examining all these poll lists? What would be the result of their taking testimony from not just thirteen but scores of witnesses? Dan Moody had already promised “testimony that will affect thousands of votes.” What if he could keep that promise? What if the definitive, no-longer-deniable word fraud was successfully applied to Precinct 13 and to other precincts—and the truth about the Valley’s vote for Lyndon Johnson was no longer a rumor but a fact? What would be the effect on his reputation? There had been no public hint as yet that Lyndon Johnson had participated personally in the obtaining of fraudulent votes that may have given him his victory, and perhaps no such hint would ever surface. But the votes would be linked with his name in the press: how could they not be?—they had been cast for him. If scores of ballot boxes were opened, scores of poll lists examined—and if, as Moody promised, thousands of fraudulent votes were found—would the public believe that such wholesale stealing of votes had been carried on without his knowledge? The implications reached beyond the state, as even pro-Johnson newspapers could not avoid pointing out; the Fort Worth Star-Telegram said the very “filing of the suit that alleges irregularities … may also be the grounds for ‘black marking’ Johnson in such a way that the U.S. Senate would not seat him even if all court action fails.” And the investigation’s implications reached also into the future—his future. Whatever its results, a full investigation could hardly fail to tarnish his name permanently—to link it indelibly with the greatest election scandal in Texas history. His seat in Congress was already gone: Homer Thornberry, having won the Democratic primary in the Tenth District, was assured of election in November. And he was in imminent danger of having his reputation tarnished so badly that even if he were to desire another political post—appointive or elective—he might not be able to get it. He was in danger of going through the rest of his life identified in the mind of the people of his state with Box 13. And as he met with his lawyers that evening, Lyndon Johnson realized that not one of them knew what to do.
THE SOLUTION to both his problems—getting on the ballot and stopping the investigation—was the same: Judge Davidson’s injunction must be overturned—fast.
October 3 might be fast enough on the legal front, for a dissolution of the injunction by that date might allow his name to be placed on the ballot, but in the court of public opinion the verdict might already be in by that date: witnesses would have been heard, poll lists checked, ballot boxes opened—and conclusions drawn by the Federal Masters in official, public reports. Short as was the time before October 3, it was too long if he wanted to avoid the ineradicable “black marking” that the Star-Telegram had mentioned.
But none of the roomful of attorneys could think of any way to get the injunction overturned and the investigation stopped any sooner. “The rules were perhaps less clear than you might think,” Luther E. Jones recalls. The lawyers went off separately and wrote drafts of an appeal. The greatest lawyers in Texas—“Allred wrote one, Johnny Crooker wrote one … Everett Looney wrote one …” Then they came back, and discussed them. There was no agreement, either on the broad ground for the appeal or on the specific arguments to be used. They couldn’t even agree on the court to which the appeal should be made: some wanted to argue again before Judge Davidson, some to go directly to the United States Supreme Court. “Day moved on, and night came, and … it was late at night, and they still had not agreed on the opposition paper.”
Exacerbating the problem was the fame and reputation of the attorneys involved. “These were talented lawyers but each of them was famous in his own right, and each of them had to tell stories—about his great courtroom triumphs, etc.,” Jones says. “Antecedent to making effort, they had to reminisce, and the reminiscing was just awful, really, because it stopped the work.”
The attorneys laughed and chatted—and as they did, time was running out on Lyndon Johnson’s last chance. After hours of discussion, still “Nobody could agree on how to do it.” Jones saw that “Mr. Johnson was getting impatient to a degree that’s hard to describe, because they were not producing the thing that was needed.” The crisis
facing Lyndon Johnson could not be solved by Johnson’s own genius, for that genius was political. It could be solved only by legal expertise. He had assembled a roomful of legal experts, some of the greatest legal experts in Texas. And none of them were helping him.
In this crisis, Lyndon Johnson responded with a vivid and dramatic demonstration of other qualities of leadership that he possessed.
One was an ability to think—fast and clearly—under intense pressure; to see, in a tense and tangled crisis, what was needed to solve it. Another was his genius not only in choosing men, but in using them for his purposes. To him, every man was a tool, and in difficulty he reached unerringly for the right tool. Now, facing a Gordian knot of seemingly insoluble legal complications, Lyndon Johnson reached for his sharpest tool of all. As the roomful of renowned lawyers went on arguing, he asked Alvin Wirtz: “Where’s Abe?”
Wirtz telephoned Fortas’ Washington office and learned that by coincidence, a very lucky coincidence, Fortas was at that moment in nearby Dallas, taking depositions in an anti-trust case. He was not at his hotel, though, and no one knew where to find him. Johnson telephoned Stanley Marcus. “Do you know where in hell I can put my hands on Abe Fortas?” he asked. “He’s right here,” Marcus replied. Fortas immediately flew to Fort Worth.
When he walked into the big conference room, Fortas was to recall, “It seemed to me that there were acres of lawyers,” who were, it seemed, “having a great deal of controversy as to the next step to be taken.”
Another of the qualities that made Lyndon Johnson a leader—the quality of his perhaps most admired by his Texas associates—was a toughness of mind: under intense pressure the self-pity and hysteria fell away, to be replaced by what was needed.
Explaining the problem to Fortas, the lawyers started talking all at once, interrupting each other. Johnson made them speak one at a time. All the time they were talking, with Fortas occasionally interjecting a question, Lyndon Johnson said not a word. When the lawyers had finished, Fortas recalls, “I said what I thought should be done.”
His suggestion entailed an immense gamble. Lyndon Johnson’s only chance of overturning Judge Davidson’s injunction lay in Circuit Court or Supreme Court. The discussions in which the other lawyers had been participating that evening had been based on the assumption that in attempting to overturn the injunction, Lyndon Johnson would naturally use every chance he had. Abe Fortas was suggesting that Johnson not do that. He was, in fact, suggesting that Johnson deliberately throw away every chance but one—and risk everything on a single hearing before a single judge.
In the view of most of the attorneys in the conference room, the best legal chance of overturning the injunction was in hearings before the full Circuit Court, and then, if Johnson lost there, in a further appeal to the Supreme Court. Even though neither court convened for its Fall term until October 4, their hope was that if the injunction was overturned, some legal means would then be found of putting Johnson back on the ballot. During those long hours of shouted conferences, one attorney recalls, “dozens” of such means had been suggested.
Fortas’ calm voice, pragmatic and precise, cut through those arguments. They were unrealistic, he said; there was no time for hoping now: if they won before a full court, additional court actions—additional hearings, additional delays—would be required to obtain the legal orders to get Johnson on the ballot, with Election Day itself always coming closer. And at every stage, Coke Stevenson could himself appeal. Fortas was to say later that he had been “confident” that in a hearing before a full court, Johnson would win. “This was alleged fraud, which in these circumstances was a state matter,” he was to recall. “The federal judge enjoining the state election” had no authority to do so. But, he was to say, what good would that victory do? Victory before a full court meant defeat in the election.
Then Fortas turned to another legal avenue—bringing the appeal before a single judge—and now his reasoning was more complex.
Since a single Circuit Court judge could stay a lower court’s injunction if that injunction would make ineffective a later judgment of the full court, most of Johnson’s lawyers had been recommending making the strongest possible argument to a Circuit Court judge whose “strict constructionist” views and previous record made likely a favorable ruling. Fortas said that this course, too, would be unwise. Since the sole issue would be jurisdiction—whether Davidson had been correct in taking authority over the case—making such a plea to a single judge would smack too strongly of lawyers’ simply asking one judge to overrule another. No matter how persuasive their plea, he said, a judge sitting alone would be far more likely to deny it than the full Circuit Court. In any case, the judge would almost certainly want to consider the issue for several days, to “take it under advisement”; should his ruling then prove unfavorable, no time for taking another course of action might remain before the October 3 deadline. Even if he granted the stay, too many days of consideration would, while giving Johnson a legal victory, doom his chances of being on the ballot. Fortas felt confident that the jurisdictional grounds would persuade a single Supreme Court Justice—particularly the Justice with administrative responsibility for the Fifth Circuit, Hugo Black—to do what a single Circuit Court judge would not: grant their plea for a stay of the injunction and thereby allow Johnson’s name to go on the ballot. Getting the case before Black, however, represented a considerable problem. The Circuit Court route could not be bypassed entirely, since a Supreme Court Justice would be unlikely to hear a case alone until lower court avenues of appeal had been exhausted. “The problem was to get it up there in time in a way that would not result in a dismissal of it because it had not been passed on by the lower court,” Fortas explained. “It would have been a mistake to go directly to the Supreme Court, to Justice Black, and bypass the [Circuit] Court of Appeals.” But if they took the case to the Circuit Court—to a single judge of that court—the case might be delayed there until it was too late for a ruling by Justice Black to help. “A way had to be devised in getting a very quick hearing from the Court of Appeals,” Fortas says.
Fortas told the assembled attorneys that he had thought of a way—a very risky way. In the first place, he said, no affirmative action at all should be asked from the single Circuit Court judge: that would complicate the matter and make a delay in the judge’s decision more likely. The only relief asked should be for a simple stay of the injunction on jurisdictional grounds—the issue on which a single judge would be most unlikely to overrule a fellow judge; the issue, in other words, on which an unfavorable ruling to their side was most likely. Then, Fortas said, they should try to make an unfavorable ruling even more likely by presenting to the judge not a strong argument, detailed, full and persuasive, but a weak one, a plea offered in what Fortas called “a summary way,” a way that was not particularly convincing. And to further ensure an unfavorable ruling they should try to select as the single judge not, as the other lawyers had been suggesting, a judge who seemed predisposed to rule for their client, but rather a judge seemingly predisposed to rule against him. The combination of these steps, Fortas said, was the best way of obtaining a quick decision from a Circuit Court judge—a decision that would be unfavorable, but that would be fast, fast enough to allow Johnson’s lawyers then to present his case to Justice Black, and to be able to tell Black that the case had already been appealed (and lost) in Circuit Court. Before Fortas arrived, Johnson’s roomful of attorneys had been trying to decide what was the strongest case they could present to a Circuit Court judge. Fortas was suggesting they present to that judge not the strongest case, but the weakest. Under his plan, the object was not to try to win in Circuit Court, but to lose—fast. Lyndon Johnson had two forums in which he might win an appeal from Davidson’s decision—the full Circuit Court and then, if unsuccessful there, the Supreme Court. Abe Fortas was suggesting that he rely on only one, that, in fact, the first forum be surrendered—by deliberately losing in Circuit Court. He was suggesting that e
verything be staked on the gamble that Black would agree to hear the case as a single Justice—and that Black would, after hearing it, rule for them.
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