by Risen, Clay
Kennedy decided to wait until after the midterm elections to sign the housing order, and even then he had it written in a way to minimize its actual impact. It only applied to primary sales, and it was strictly prospective—sales of existing homes did not count. Although it ostensibly applied to all housing that benefited from federal assistance in any way, it explicitly excluded those backed by federal mortgage insurance, the main way in which the federal government interacted with the housing market. As a result, the order affected only about 25 percent of new housing construction—hardly the sort of bold, pathbreaking action Kennedy had implied would occur with a stroke of his pen. And even then, Kennedy dragged his feet on implementation: it was not until early April 1963 that a committee was formed to put the order into effect.72
The one bright spot in Kennedy’s early civil rights forays came in the one place where many in the movement did not place much hope: the Department of Justice and its Civil Rights Division. The office had been created by the 1957 civil rights act—and promptly forgotten. Robert Kennedy had other ideas, though: a well-staffed division, he realized, could bring significant dividends at little political cost to his brother.
Kennedy dismissed out of hand the suggestion that he hire Harris Wofford, the young Notre Dame law professor who had served as the president’s civil rights point man during the campaign—but who was also a close associate of several leading civil rights figures, an attachment that might bring charges of bias against the division. Instead, Kennedy chose Burke Marshall, an antitrust lawyer at the firm of Covington and Burling, to run the division. Aside from a teaching a few adjunct classes at Howard University’s law school, Marshall had no previous exposure to civil rights, and in temperament and philosophy—cerebral, staid, personally conservative—he was the furthest thing from a “movement” lawyer that Kennedy could find. Which is just what the attorney general wanted.73
Marshall rounded out a legal all-star team. Byron White, the deputy attorney general, was a Rhodes scholar, former professional football player, and future Supreme Court justice. Running the Office of Legal Counsel was another Rhodes scholar, Katzenbach, a University of Chicago law professor who had known Marshall as a teenager in suburban New Jersey and later preceded him as editor of the Yale Law Journal. Archibald Cox, a professor at Harvard Law School, became solicitor general. Louis Oberdorfer, who ran the tax division, was likewise a Yale law graduate who had clerked for Justice Hugo Black. They were later joined by John Douglas, yet another Rhodes scholar, who took over the Civil Division in mid-1963 and immediately assumed the task of coordinating the government’s role in the March on Washington.
These men, noted historian and Kennedy adviser Arthur M. Schlesinger Jr., shared a set of overlapping experiences. Most had fought in World War II; Katzenbach, a navigator on a B-25 Mitchell bomber, was shot down over Italy in 1943 and spent two years in a POW camp. They had gone to the best schools, had clerked for appellate and Supreme Court justices, and had spent time in white-shoe law firms. The result, Schlesinger said, was “a common moral outlook” and a set of qualities—“integrity, judgment, drive, understatement, personal reserve”—that made their reserved natures a counterweight to the passion of the years to come.74
Robert Kennedy set the tone of his department’s civil rights stand almost immediately. In 1960, school officials in New Orleans had pleaded with the Eisenhower administration to endorse their desegregation plan, as a way of giving them desperately needed political cover in the face of vociferous, at times violent, opposition from white parents. The Republican president was silent, even after the state legislature threatened to restrict financing for the district should it proceed with its plans. But in February 1961, barely three weeks into its term, the Kennedy Justice Department took an existing federal suit and expanded it to demand that the state release hundreds of thousands of dollars for the New Orleans schools, money they needed for their desegregation plan. The legislature relented. And then a dam seemed to break: after hardly budging over nearly seven years after Brown, the South began to integrate its schools. Grudgingly, haltingly, and often in heavily urban areas where the risk of white resistance was relatively minor, to be sure—still, at the end of 1960, only 17 Southern school districts were desegregated, but by 1963, 166 were.75
The division also went on a hiring spree; though many of the best law school students set to graduate in 1961 had already accepted jobs elsewhere, Marshall and Kennedy were able to persuade several to change their minds, and by 1962 the division’s early successes had made it one of the hottest places to work in Washington. Meanwhile, the existing staff kept busy by filing fourteen new civil rights suits in 1961 and launching investigations or negotiations in sixty-one Southern counties. They would hold long strategy sessions in Kennedy’s enormous, chaotic office on the fifth floor of the Justice Department, with Brumus, the attorney general’s giant black Newfoundland, lying nearby, or out in the courtyard, where Kennedy’s wife, Ethel, had set up umbrellas and chairs. John Doar, Marshall’s assistant and a Republican holdover from the Eisenhower Justice Department, became a sort of civil rights fireman, showing up in small towns across the Deep South to meet with voting rights litigants and then file suit in the nearest federal courtroom.76
But even the success of the Civil Rights Division had its limits. The legal process laid out under the 1957 and 1960 acts was slow and unwieldy. There were not enough lawyers to file more than a token number of legal actions. More important, though, was the attitude among the men gathered around Robert Kennedy. Good, right-thinking men who would have liked to see Jim Crow disappear overnight, they were also prisoners of their own establishment thinking. They had been taught—at home, in college, at law school, in Washington—that as long as the system functions correctly, good will prevail. Like their president, these men did not at first grasp the realities of the black situation, did not understand the totality of the Jim Crow system, its imperviousness to logic, or Southerners’ willingness to employ violent means to block even the mildest advance of black rights. As a result, throughout the first years of the Kennedy administration, Marshall and others replied with seeming callousness to the demands of civil rights leaders and their political allies for federal intervention against bombing campaigns, assassinations, and police violence. In June 1962, a group of leaders from the embattled protest movement in Albany, Georgia, traveled all the way to Washington to plead for federal relief. John Doar told them point-blank there was nothing the Department of Justice could do. As one of Robert Kennedy’s aides, John Nolan, later told the journalist Victor Navasky, “We weren’t trying to solve the civil rights problems of the United States of America. We were just trying to keep people from getting hurt. We wanted to prevent bloodshed. They were lid-keeping operations.”77
And contrary to the far-right fantasy of power-grabbing bureaucrats run amok, the men in the Civil Rights Division were almost allergic to pushing the boundaries of the federal government’s mandate. After repeated demands from congressmen and the NAACP to take action against a wave of antiblack bombings in Birmingham in late 1961, Marshall sent a terse declaration to Clarence Mitchell: “In view of specific provisions contained in the Act, matters of this kind fall within the primary jurisdiction of local law enforcement authorities.” On July 2, 1962—two years to the day before the signing of the Civil Rights Act—Burke Marshall gave an address to the annual NAACP convention in Atlanta. “Law exists to serve the needs of men,” he said, “and when the needs of men are revolutionary in nature—as has been true of the needs of Negroes in the United States in the past—the courts and the processes of the law are blamed for doing what must be done. Yet the alternative is either chaos or rigid control through dictatorship without regard to the law.”78
Had John F. Kennedy had his way, the civil rights issue would have continued on a low simmer, bubbling up occasionally but otherwise sitting quietly on the back burner. He did not get his wish. The protest movement in Albany, Georgia, was making regular app
earances on the nation’s front pages: though police chief Laurie Pritchett was too smart to use the cattle prods and mobs that had turned other protest actions into international incidents, he arrested scores of protesters—including King—and refused to negotiate for even the most symbolic weakening of the town’s Jim Crow system. Kennedy watched it all with dismay, but did nothing. Finally, on August 1, 1962, he told a weekly press conference: “I find it wholly inexplicable why the city Council of Albany will not sit down with the citizens of Albany, who may be Negroes, and attempt to secure them, in a peaceful way, their rights.” After all, his administration was negotiating with its sworn enemy, the Soviet Union. “I can’t understand why the government of Albany, the city council of Albany, can’t do the same for American citizens.”79
It was the first time Kennedy had directly endorsed the civil rights demonstrators since he took office. The next day King sent him a telegram from his jail cell in Albany, expressing his gratitude for the “directness of your statement to Albany crisis. I earnestly hope you will continue to use the great moral influence of your office to help this crucial situation. There is no need for another Little Rock here.”80
King’s message was prescient, since the need for “another Little Rock” presented itself just weeks later. On September 10, 1962, Supreme Court Justice Hugo Black upheld a Fifth Circuit Court of Appeals order for the University of Mississippi to admit a black transfer student named James Meredith. The White House quickly reached an agreement with Mississippi governor Ross Barnett to let him register, but when Meredith appeared on campus on September 20, the governor himself was there to block him. Meredith tried again five days later, this time in the company of federal marshals and Justice Department attorneys, and again was blocked. Each time he appeared, the crowd greeting him—mostly students, but with an influx of older, unfamiliar faces—grew larger and angrier.81
Challenged, Kennedy acted decisively. On Thursday, September 27, Robert Kennedy declared that “the orders of the federal courts can and will be enforced,” and traveled across the Potomac to the Pentagon to explore military options with General Maxwell Taylor, chairman of the Joint Chiefs of Staff. By Sunday the president had federalized and mobilized the state National Guard and sent hundreds of newly deputized marshals into Oxford. That evening, under the direction of Katzenbach and Doar, federal forces escorted Meredith onto campus and into a dormitory, so that he would be ready to register the next morning. All the while, scores, then hundreds of onlookers began to gather on campus. Some carried signs reading “Yankees Go Home.” But for the most part, a tense peace held.82
As the sun set, though, the insults began to fly, followed by brickbats. Soon a full-scale riot was under way, with squads of burly Ole Miss students taking on unarmed marshals, many of whom were much older and out of shape (and unsure of why they were there to begin with, being mostly white Southerners themselves). By the next morning the toll was staggering: hundreds injured on both sides, two dead, scores of cars upended and burned. But Meredith was registered.83
Even as the Kennedys put themselves on the line to defend Meredith’s right to attend Ole Miss, they were careful to couch their efforts in legal, not moral, rhetoric. During a phone call with Governor Barnett on September 30, President Kennedy swore off any commitment to Meredith’s case beyond the dispassionate application of the law. “I don’t know Mr. Meredith, and I didn’t put him in there,” he said. “But under the Constitution I have to carry out the law. I want your help in doing it.” His reasoning was partly strategic—men like Barnett might be more willing to lower their resistance if they saw the administration as a neutral force. But such a position also came naturally to the Kennedys. As Schlesinger noted, they “did not see racial justice as the urgent American problem, as the contradiction, now at last intolerable, between the theory and the practice of the republic.”84
And yet, as the year drew to a close, the Justice Department’s thinking began to shift, ever so slowly. Imperceptible to the public, the shift showed up in memos and meetings, in end-of-the-year reports and offhand comments. The tumult of 1963 was yet to come, but Ole Miss had capped a year of rising tensions, of small outbursts of violence. And if that were the case, the present approach—piecemeal, conservative, reactive—could not hold. In October, still reeling from his experience at Ole Miss, Katzenbach asked Marshall to submit ideas for civil rights legislation. Marshall minced no words: “The department has had great difficulty in obtaining prompt hearings and decisions in the district courts,” he admitted. To that end, his division needed legislation “to expedite civil actions brought by the United States for relief against racial discrimination in voting.” But he went further, to endorse what amounted to Title III powers for the attorney general: they needed “a bill to protect persons from injury, oppression, threats and intimidation in the exercise of rights under the Constitution; to provide punishment, and to authorize the attorney general to sue for preventative relief.” While they were at it, he said, why not also ask Congress to amend the National Labor Relations Act to ban discrimination in unions?85
Marshall was not the only one in Washington urging action. The day after the midterm elections, Representative Thomas Curtis, a conservative Republican from Missouri, called up the GOP congressional aide Fred Sontag in New York and told him that he and a group of Republicans were going to make a big push for civil rights legislation in the next congressional term. Things were already afoot: Robert Kimball, an aide to New York congressman John Lindsay, was working full-time on drafting a new bill, having been seconded from Lindsay’s office to a new organization called the Republican Legislative Research Association, a liberal group founded by Charles Taft, the son of President William Howard Taft, and former Republican presidential nominee Alf Landon. “There was the feeling on the Republican side that we were looked upon as naysayers,” Kimball recalled. “There was a feeling we should do something on civil rights.”86
The bill, which Lindsay introduced on January 30, read like a wish list sent over from the civil rights leadership: it made the Civil Rights Commission permanent and gave it the power to investigate election fraud; it established a federal fair employment commission to oversee government contractors; it gave the attorney general the power to initiate lawsuits over school segregation; and it exempted anyone with a sixth-grade education from literacy tests. The bill, Lindsay boasted, was “designed to pass.”87
Democrats were moving, too. On January 8, four leading liberals—Humphrey, Paul Douglas of Illinois, Joseph Clark of Pennsylvania, and Harrison Williams of New Jersey—wrote an impassioned letter to Kennedy demanding fast action on civil rights. After praising his executive order on housing, they said, “The time has come for similar forthright action in the legislative field.” Playing to the president’s political side, they argued that civil rights would help, not hurt, the party in 1964. “Many Democratic members of the Senate class of 1958 believe strongly that their re-election in 1964 will be materially affected by the Democratic civil rights record compiled by the 88th Congress.” But they could not go it alone. “The eventual success of any such program undoubtedly depends on your leadership.” Louis Martin was even more blunt. The coming year, he told Kennedy speechwriter Ted Sorensen in an early 1963 memo, was going to be a hot one: “American Negroes through sit-ins, kneel-ins, wade-ins, etc. will continue to create situations which involve the police powers of the local, state and federal government.”88
Yet for all the activity and chatter about civil rights, 1963 began with an administration believing that a few symbolic acts, like the Lincoln Day reception, were enough to solidify its position vis-à-vis black America. “Our feeling was that the Negro community was pretty much at peace,” said Lee White. In a background interview with the journalist Simeon Booker of Jet magazine, Kennedy insisted that the problems of African Americans could be addressed largely through the administration’s overall agenda of trade promotion and lower taxes. “The president urged groups who hinted of de
teriorating race relations to look at the statistics on unemployment, house ownership, education and all the rest to see that the unrest is a general national problem aggravated by conditions,” Booker wrote.89
And Robert Kennedy was adamant, even in private, that his department was making huge strides on the issue. In a confidential year-end report to the president, he wrote, “1962 was a year of great progress in civil rights.” Among his team’s many accomplishments, he boasted, were breakthroughs like twenty-nine Southern counties volunteering to make their voting records available. And, he added, “of the approximately 350 assistant United States attorneys appointed in this Administration, 32 are Negroes.”90
Evidently satisfied with such meager advances, John Kennedy dedicated just two sentences in his State of the Union speech that year to civil rights, and then only to the matter of voting rights: “The most precious and powerful right in the world, the right to vote in a free American election, must not be denied to any citizen on grounds of his race or color. I wish that all qualified Americans permitted to vote were willing to vote, but surely in this centennial year of Emancipation all those who are willing to vote should always be permitted.” He spent more time during his speech dwelling on the nation’s transportation system.91