In one area of the country—the West, where judges had broken the great railroad strikes at the turn of the century by the arbitrary use of injunctions and jail terms against strikers—the right to jury trial had special resonance, and a jury trial amendment to the civil rights bill had been drafted by a western senator, a senior senator who as a junior senator two decades earlier had demonstrated a particular susceptibility to constitutional and moral considerations.
Seventy-two-year-old Joseph C. O’Mahoney of Wyoming was in a way the embodiment of senatorial resistance to unwarranted expansion of executive authority. A small man with large, bushy eyebrows and a large, “crowd-challenging” voice, the Wall Street-hating Populist had been an eloquent, even impassioned, supporter of the New Deal after he arrived in the Senate in 1934. When Franklin Roosevelt’s 1937 court-packing proposal came before the Judiciary Committee, however, O’Mahoney had been noticeably silent. The White House, noting that he would shortly need Administration help on a bill vital to Wyoming, was confident that, in the end, he would come around, but after a while an Administration representative had had an intermediary telephone O’Mahoney in his rooms at Washington’s Wardman Park Hotel to make sure he was in line. O’Mahoney thereupon telephoned the Administration’s man directly. He was sorry that there seemed to be some doubt about his views on the President’s court bill, he said; he was calling to remove those doubts. The bill, he said, was “undemocratic,” “obnoxious,” and an “insult to the Senate.” It would violate the constitutional separation of powers. He would never vote for it. And when some Democratic colleagues on Judiciary suggested killing the bill by simply not reporting it to the floor—thereby saving as much Administration face as possible—O’Mahoney demanded that it be reported, together with a recommendation that it be defeated. He wrote the recommendation himself. Roosevelt’s bill, it said, “is a measure which should be so emphatically rejected that its parallel will never again be presented to the representatives of the free people of America.”
Now, in 1957, O’Mahoney felt that Brownell’s bill violated the constitutional guarantee to jury trial. While the fight on Part III had still been raging, he had drafted and on July 8 had sent to the desk a brief amendment adding to Part IV a guarantee of a jury trial for defendants in civil rights cases, and had announced that he was going to fight for that amendment. The bushy brows were white now, the challenging voice a little gravelly with age, the name of his hotel had been changed to the Sheraton-Park, but O’Mahoney still lived in the same suite there, and while the voice was hoarse, the words it spoke were still eloquent, and, with his seniority and his passionate independence, this “spirit out of the Senate past” was to some extent the spiritual leader of the younger Democratic liberals from the West. Even while attention had still been focused on Part III, the jury issue was bubbling up below the surface, and it reinforced the alliance with the South that had already been forged among the western senators by Hells Canyon. A jury trial amendment was part of the South’s price—its rock-bottom, non-negotiable price—for not filibustering. And in its fight on this issue, the South would not have to stand alone.
But if the South would not, could not, compromise on a jury trial amendment, compromise was not an option for its opponents, either. The acquittal of Emmett Till’s murderers was only one of hundreds of verdicts that documented the prejudice of southern juries; not two months earlier, two white men who had confessed to bombing Negro churches and ministers’ homes in Montgomery had nonetheless been given a trial. The defense attorney had waved the banner not of innocence but of segregation—“Every white man, every white woman and every white child in the South is looking to you to preserve our sacred traditions,” he told the jury. The two men had been acquitted. “It is this kind of justice, dispensed by these kinds of juries, that the opponents of the civil rights bills in Congress are trying to tack onto that bill,” Roy Wilkins said. The amendment “can only be intended to cripple the enforcement of the law by introducing into the proceedings the very local prejudice against which protection is sought,” declared a committee of southern liberal educators and churchmen. Senate liberals agreed. How could any senator who truly cared about civil rights vote for this amendment? asked Charles Potter of Michigan, standing beside his desk on crutches because he had lost both legs in World War II. “I fought beside Negroes in the war,” he said. “I saw them die for us. For the Senate of the United States to repay these valiant men … by a watered-down version of this legislation would make a mockery of the democratic concept we hold so dear.” The elimination of Part III had removed everything but voting rights from the bill, Paul Douglas said. Now the South was trying to make voting rights meaningless, too. The Douglas Group vowed “to resist [any jury trial amendment] to the end.”
With the raising of the jury issue, the civil rights battle at once became even more complicated—a tangle now not only of legal and parliamentary complications but of moral complications as well. No longer was all the right clearly on the side of the liberals. Even Hubert Humphrey, who was to stand fast against the amendment because “you could not really rely on southern juries to be fair,” was to confess that his emotions were “mixed, really”—“This was a terribly difficult issue for me because my Populist background had always emphasized the importance of jury trial. My father talked to me about things like that.” With the raising of the jury issue, both sides held some moral high ground—and since granting one right, the right to a jury trial, would nullify the other right, the right to vote, there seemed to be no basis for compromise between them. And if the South, with the West on its side, would not have to stand alone in the fight to come, neither would the liberals: the GOP was standing by their side. On Part IV, unlike on Part III, Brownell had his boss’s support. The elimination of Part III narrowed the scope of the Administration’s bill to the one area, voting, for which Dwight Eisenhower’s support was unequivocal, and the President understood that the amendment would, as Brownell put it, “practically nullify” any voting rights provision. Placing “a jury trial between a court order and the enforcement of that order” would mean that “we are really welcoming anarchy,” Eisenhower told a press conference. With the President behind him, Knowland was taking the step, rare with Republicans, of making the vote on O’Mahoney’s amendment a “party policy” position, and Knowland’s efforts were being supplemented now by a politician much more wily, and far tougher, than he. Recognizing the magnitude of the stakes involved in the struggle for civil rights legislation, and recognizing as well the caliber of his main adversary, Richard Nixon had decided to engage him hand to hand. He had begun spending long hours in the Vice President’s office off the Senate lobby. Visiting him there, Stewart Alsop found him, as he reported to Johnson through George Reedy, “full of admiration for the job you have done.” (On Nixon’s desk, Alsop told Reedy, was “a list of nine Republicans that are going to be worked on. One of them is [Gordon] Allott but Alsop did not see the other names.”) “It is Nixon, maneuvering quietly and deftly in the background, who is spearheading the bipartisan ‘no compromise’ bloc that is adamantly against writing a jury trial amendment into the bill,” Robert S. Allen reported. “[He] is working closely” not only with Knowland but with “such Democratic militants as Douglas, Humphrey, and McNamara….”
Knowland may not have been able to count votes, but Nixon could, and he was counting more than enough. After talking with the Vice President, Allen told his readers that “Defeat is in store” for the amendment. Conservative columnists agreed. Many Republican senators had “been willing to support amendments against Section III, [but] they are not expected to go along with the jury trial amendment,” Gould Lincoln reported. As soon as Part III was removed on July 24, Knowland announced that he would press for an early vote—during the very next week, in fact—on Part IV, and predicted that “an overwhelming majority” of the GOP senators would vote against the amendment. Defeat did indeed appear to be “in store” for the South on the vote—which
, of course, meant that the South would not allow a vote: that it would launch a filibuster that would mean defeat for civil rights, and for Lyndon Johnson.
The chasm between the two sides seemed unbridgeable. “Every so often the play of history turns up an issue so full of personal and regional conflict, so grounded in moral philosophy, and so subject to the clash of ancient but contending principles, that it stands apart from all the normal preoccupations of political life,” James Reston wrote. “Such an issue is now before the Senate….”
“At this point,” George Reedy writes, “Johnson rose to what I will always regard as his greatest height…. He was absolutely determined that there would be a bill…. Against all reason, Johnson kept insisting that a compromise must exist somewhere…. Most observers thought that [the] two poles were too far apart to find a middle ground. But using the same set of facts, LBJ insisted that the reality was the other way around—that if two opposing sides had a degree of validity in their contentions, there simply had to be a legitimate way of meeting them both.”
IF THERE WAS A WAY, Lyndon Johnson was going to find it. “He pleaded and threatened and stormed and cajoled,” Reedy recalls. “He prowled the corridors of the Senate grabbing senators and staff members indiscriminately, probing them for some sign of amenability to compromise.”
He had begun while the Part III fight had still been going on. Trying to find a middle ground—some form of jury trial amendment acceptable to both liberals and the South—he had “spent hours on the phone in nonstop conversations with the most ingenious legal minds he knew,” pleading with Corcoran, Rowe, Clifford, Fortas, Acheson, and a dozen other lawyers “for something to break the logjam.” He had had Tommy Corcoran assemble a group of lawyers—a dozen leading legal minds of the New and Fair Deals—in the conference room at Corcoran & Rowe, and Corcoran had told them how important it was that a solution be found: “You know, we’re all pros here, and we can talk to each other. We know we’re here to elect Lyndon Johnson President. Who’s kidding whom, and let’s get going!” Dean Acheson put several bright associates at his law firm, Covington & Burling, to work on the problem. Senators were flooding the Democratic Policy Committee with amendments and suggestions for amendments (O’Mahoney edited and reedited the version he had introduced), where they were run by the committee’s lawyers, Siegel and the brilliant Solis Horwitz. “We drafted twenty-five or thirty different versions,” Horwitz was to recall. “We were constantly trying to satisfy both sides.” The search grew desperate. “O’Mahoney kept introducing these various amendments one right after the other. It got ridiculous….” Each suggestion proved to have a fatal weakness; some foundered on conflicts with other statutes already on the books, others on either the rock or the hard place: every amendment that would add to the civil rights bill a provision that required jury trials—in no matter what form—was totally unacceptable to liberals; every amendment that did not include an absolute guarantee of jury trials was totally unacceptable to Russell and the South. For some time, Reedy says, “every effort turned out to be a false start.” And time was running out—and now, with Part III disposed of, it was running out fast, thanks to Knowland’s stubbornness. Confident that he would win a vote on Part IV, the “leader of the bipartisan civil rights coalition” was pushing for one more and more insistently, repeatedly announcing that he was prepared to move for an immediate vote. If that motion came to the floor without a compromise already in place, the civil rights bill, bipartisan coalition or not, would be dead.
At the close of a Senate session one evening in July, however—while the fight, and the focus, were still on Part III—Lyndon Johnson had returned to his office and reached for Walter Jenkins’ yellow legal pad with the list of persons who had telephoned during the day, and Jenkins had silently pointed to a name on the pad, and Johnson, before he turned to the rest of his messages, told Jenkins, “Get me Ben Cohen.”
By the 1950s, the name of Benjamin V. Cohen had faded in Washington’s memory, in part because it had been a long time since he and another young bill-drafter, Tommy Corcoran, working closely with Sam Rayburn, had drafted the Securities Exchange Act and the Public Utilities Act, and other keystones of the great New Deal arch; in part because while the accordion-playing, storytelling, relentlessly self-promoting Corcoran had made himself a flamboyant figure in the Capitol, head of one of Washington’s most influential political law firms, the shy and dreamy Cohen, who looked and talked, as a friend wrote, “like a Dickens portrait of an absent-minded professor,” had withdrawn from the Washington social scene to spend more and more time alone in his book-cluttered Dupont Circle apartment. In the days since they had been part of the same little group of New Dealers,* Lyndon Johnson had seen less and less of Ben Cohen—“You had to be very patient with him,” Gerald Siegel was to explain, and Johnson was “an impatient man”—but decades before, men who knew Corcoran and Cohen well had learned that despite his charm and gift for the blarney, Corcoran’s mind, canny and politically astute though it was, was not the equal of his silent partner’s. A remark of Sam Rayburn’s still circulated among men on Capitol Hill who had been there during the early days of the New Deal: after one meeting at which Corcoran did almost all the talking, Ray-burn confided to a friend, “Cohen’s the brains.” Cohen had been among the lawyers whom Johnson had telephoned to ask for suggestions about the jury trial amendment, and now, on that July evening when Johnson returned his call, Cohen said he had a suggestion to make, and Johnson asked him to come to lunch, and, as Gerald Siegel said, reminiscing years later, “Everyone came up with a different plan. And all of them were worth nothing, except one man, Ben Cohen.”
Cohen was to recall, after the author, during an interview in 1976, had finally persuaded him to talk about the 1957 episode, that he had been “working on the problem” of reconciling the right to trial by jury with enforceable civil rights legislation when his attention had been caught by an article that had appeared in the April 29 issue of a journal of liberal opinion, The New Leader.
The article, by a University of Wisconsin law professor, Carl A. Auerbach, addressed that problem—and had a solution for it. It was not necessary to rely only on jury trials to enforce civil rights, Professor Auerbach had written, because jury trials are required only in criminal contempt proceedings. They are not required in civil contempt proceedings—and civil contempt proceedings could also be employed to enforce civil rights.
In criminal contempt, Auerbach said, the judge is punishing a defendant for violating—disobeying—a judge’s specific injunction, or order. In civil contempt, Auerbach said, the aim is different—not to punish a defendant for having violated a court order, but to force the defendant to obey the order in the future. “If the court’s order is disobeyed, the judge will hold the violator of his injunction in contempt of court and have him imprisoned until he does obey.” As soon as he does, he will be freed. “He can open his prison door and walk out anytime he pleases by obeying the court’s order”—and therefore jury trials were not required.
The impasse over the 1957 civil rights bill, Auerbach wrote, had come about because the bill contemplated only criminal contempt proceedings. If a provision for civil contempt was added, the impasse would be broken. “If the United States proceeds against an alleged violator of a civil-rights injunction in order to punish him for criminal contempt, all the protections accorded the accused in a criminal trial should be extended,” including a jury trial, he said. But “the United States should” also “be authorized to bring civil-contempt actions against alleged violators of civil-rights injunctions…. Its objective would be purely remedial—not to punish the violators for their past disobedience but to coerce future obedience to the court decree. If the decree, for example, ordered the registration of Negro voters, the local officials refusing to do so could be imprisoned until they obeyed the order.” If they did so, they would be released. There would therefore be no need for a jury trial.
Auerbach’s solution would requi
re merely the addition to O’Mahoney’s amendment of a new paragraph, one authorizing the use of civil as well as criminal contempt, Cohen explained. But, he explained, that new paragraph might help create the necessary new ground, the new ground that could become the middle ground, the common ground, for a compromise that would enable the civil rights bill to pass. While southern senators would still be able to tell their constituents that the bill, by including a jury trial amendment, guaranteed southerners trials by southern juries and was therefore so weak as to be meaningless, northern senators, on the other hand, would now know that, despite that guarantee, the bill contained strong enforcement provisions unvitiated by any provision for trial by southern juries.
Master of the Senate: The Years of Lyndon Johnson Page 150