Twenty years before, Cohen told the author, he had considered young Representative Johnson “promising material.” Subsequently, he said, he had been somewhat put off by the “intensity” of Johnson’s ambition. But now, in 1957, talking to Johnson over lunch, he felt that the promise had been fulfilled: “He was a man with a mission”—to pass a civil rights bill—who grasped with impressive speed the significance of the Auerbach article. “He asked Senator O’Mahoney to see me,” Cohen recalled, and together—along with Siegel—by July 17, they had worked out the wording of the necessary new paragraph. (“Ben was simply my closest adviser,” Siegel says. There were seemingly insuperable problems to arriving at a wording that would be accepted by all sides, but every time there was a problem, “Ben solved it.”) O’Mahoney’s amendment guaranteed jury trials in civil rights criminal contempt proceedings; the new paragraph said that that guarantee shall not “be construed to deprive courts of their power, by civil contempt proceedings, without a jury, to secure compliance with … any lawful writ, process, order, rule, decree or command of the court… including the power of detention.” On that date, while the fight over Part III was still being waged, O’Mahoney had sent the revised amendment to the desk, and now, on July 24, as soon as the 52–38 vote on Part III was announced, it became the Senate’s pending business.
The new version of the O’Mahoney Amendment allowed Lyndon Johnson to add additional numbers, representing new votes for the amendment, on the left or “yea” side of the names on his long tally sheet, but only a few more numbers; they were next to the names of Hells Canyon westerners who had wanted to help the South but had been shying from doing so because the amendment would have made the whole civil rights bill too blatantly meaningless. Their tentative commitment was now solidified. Even if every one of the twenty-two southerners and twelve Hells Canyon Democrats voted for the amendment, however, that would be a total of only thirty-four votes, whereas forty-eight were required for passage. There were still no numbers, or almost none, in that left-hand “yea” column next to the names of the forty-six Republicans and about fifteen non-southern and non-Hells Canyon Democrats who made up the bulk of the “civil rights coalition”—a solid majority against the amendment. The odds against passage of the civil rights bill were still very long. The South was willing—to avoid being forced to filibuster, and also to help Lyndon Johnson become President—to accept a weak bill, and since the amendment’s new version still contained a jury trial guarantee, it was still weak enough for the South to accept it. Republicans and liberals, however, still would not accept it. While the new version gave them part of what they wanted—a means of allowing judges to jail civil rights violators without a jury trial—it still ensured that southerners would not be jailed for criminal contempt, and it was therefore still too weak to be acceptable. Since, with a solid majority, they could pass the bill unweakened—without any jury trial amendment at all—they felt they had no reason to accept one. They would vote against, and defeat, the amendment; the South would then filibuster, and thereby defeat, the bill. To pass the amendment, and thus the bill, Lyndon Johnson still needed perhaps fourteen Republican and liberal votes. The main advantage of the O’Mahoney Amendment was not that it in itself got Johnson the votes he needed—it didn’t—but that it provided a base from which to fight for those votes. While before the new version, no ground for a compromise had existed, there was new ground now, ground too narrow but nonetheless more than had existed before.
HE SET OUT to broaden that ground. With the Senate’s attention now focused on Part IV, the hailstorm of proposed changes in the jury trial amendment pouring into G-14 increased in intensity, and Johnson read every one that Siegel or Horwitz thought might be a possibility, and as he read each proposed change, he asked the same question: “If I take this one, how many votes will it get me?” And suddenly, out of that storm of proposals, there was one—no one remembers who made it—that he felt might get him quite a few votes.
This proposal would create more new ground. Since the civil rights bill was going to deal with jury trials, the proposal went, maybe this bill was the place to remedy an injustice that had been perpetrated against labor unions in 1948 when the Taft-Hartley Act had limited strikers’ right to jury trials in contempt cases arising out of labor disputes. Unions had attempted repeatedly to have the right restored but without success. Perhaps, the proposal went, it could be restored in the civil rights act.
This suggestion—about labor disputes, not civil rights—was new ground indeed. But Johnson saw how it could win him some new votes for the amendment from liberal senators—not the most ardent civil righters, but liberals with more moderate civil rights views. The opposition of these senators to any jury trial amendment was intensified by their fear of the reaction of their pro-civil rights constituencies if they supported an amendment that weakened the civil rights bill. But a key element of their constituencies was organized labor: big unions such as Walter Reuther’s UAW and Jim Carey’s Electrical Workers and the dominant national labor organization, the AFL-CIO, were ardent supporters of civil rights, and therefore adamant opponents of jury trials. If labor could be persuaded, through the inclusion of this new provision, to look more kindly on the jury trial amendment, it would be much easier for liberal senators to vote for it. New additions to the O’Mahoney Amendment were hurriedly drafted by Johnson’s young bill-drafters, and on Friday, July 26, O’Mahoney introduced them. The key provision extended the guarantee of jury trial for criminal contempt beyond civil rights cases: “In any [italics added] proceeding for criminal contempt … of any court of the United States, the accused, upon demand therefor, shall be entitled to trial by jury.” When O’Mahoney rose at his desk in the far corner of the third row and announced that “I desire to have laid before the Senate [a] modification of my amendment,” Douglas, in the third row three desks closer to the center, rose to attack this constant rewriting. “Is there to be another edition tomorrow?” he asked. Sitting right in front of Douglas, however, was the more moderate Kefauver. Turning around, he told Douglas that the modification “represents a great advance of civil liberties because … it will again assure labor unions of their day in court before a jury of their peers.” “Labor,” Kefauver said, “should be anxious for the passage of this act with this amendment [included].”
JOHNSON HAD SOME GROUND to fight on now—and he fought.
To keep the two sides negotiating—to keep the 1957 civil rights fight from degenerating into the open hostility and bitterness on the Senate floor in which so many previous civil rights bills had died—he had to persuade them to conduct the debate in an atmosphere of outward friendliness and respect, or at least civility, so for some days after Part III had been disposed of, the opening scene of the Senate each noon hour featured the Majority Leader as Emily Post. In statements written by Reedy and delivered during his opening remarks each day, Johnson encouraged the Senate to mind its manners, saying on one day that the Senate was on trial, that the world was watching it, and that he was confident that the Senate would do itself proud, that his colleagues would “continue the debate as reasonable men.” On another day, he said he was happy to see that his confidence was justified. “Never before have I seen in the Senate a debate which has contributed so much to understanding. In that sense, I think the debate has been one of the finest the Senate has ever had.” Day after day, he reminded his colleagues that they were taking part in an historic debate, repeated his plea that they be fair and open-minded, open to reason and compromise, and praised them for being so reasonable and open-minded thus far—which of course made it harder for them to act otherwise, and kept them, as much as possible, on their best behavior.
Often, on Friday of that week, and during the next week, those statements were read to long arcs of almost empty desks—desks that stayed empty all day. In the days following the hectic floor fight on the Anderson-Aiken Amendment, the Senate Chamber was a scene, as the New York Times put it, “of such calm that at tim
es hardly half a dozen senators were on the floor.” Johnson’s opening homilies, moreover, were almost his only public utterances on the subject of civil rights. He had again assumed a low profile, and was not often on the Senate floor, spending his time in the Democratic cloakroom or huddling behind the closed doors of G-18 with George and Solis and Gerry, or with senators in his offices in the Capitol or back in the SOB. But there, in the cloakroom or behind closed doors, he was fighting, too, using the gifts he had demonstrated so vividly during his entire life.
All his life, he had had what George Brown called a “knack” for simultaneously convincing people on opposite sides of an issue that he was on their side, and that knack was desperately needed now. He was the only bridge between the two sides, and if he was to keep them negotiating through him, he had to convince each side that it was in its best interest to negotiate through him, that he was trying to obtain for it the best deal that could be obtained; that while it was necessary for him to maintain a veneer of neutrality for the benefit of the outside world, in reality he was on their side, that he believed what they believed, that he was their friend, that he wanted them to win. And never had this knack been more vividly displayed. He did it with the tone of his voice: with northerners, his Texas twang became harder, more clipped; when he talked to southerners the twang softened into a full-fledged southern drawl. He did it with words. “If we’re going to have any civil rights bill at all, we’ve got to be reasonable about this jury trial amendment,” he said to Paul Douglas in the cloakroom one day. Five minutes later, he was at the opposite end of the cloakroom, telling Ervin to “be ready to take up the Nigra bill again.” “Let’s face it, our ass is in a crack—we’re gonna have to let this nigger bill pass,” he told Stennis.
With the southern senators, the key words—in addition to “nigger” and “Nigra”—were we and us, to emphasize that he was one of them. Keeping the South in line—persuading Thurmond not to march on the White House and Eastland not to give the Judiciary Committee a monthlong vacation and Olin Johnston not to deliver his forty-page speech—was, despite all that Richard Russell could do, becoming increasingly difficult. He had to persuade the southerners to allow some sort of civil rights bill to pass, not to employ the filibuster to kill it, even though their constituents were expecting them to use the filibuster if necessary. To do so, he made things personal. Over and over again, he told the southerners, “We have to give them something”—and, he told them, as long as they trusted him, the something would be as little as possible. “I’m on your side, not theirs. Be practical. We have to give them something. But we don’t have to put teeth in it.” He made it political. “You always thought you wouldn’t have to worry about Republican opponents. Well, look around you. I look around and I see the Republicans shaking bushes all over the South. Well, one day, they’ll shake the right bush and flush out an opponent for you…. My ass is on the line, and your ass is on the line, and the Democratic Party’s ass is on the line….” He tried to make them understand that as long as the bill contained a jury trial amendment, its passage would have minimal political repercussions for them. “You can go back [home] and say, ‘Listen, we couldn’t stop them entirely. They just had too many votes, so they rolled over us. But look what we got. We fought and fixed it up so that those damned Yankee carpetbaggers couldn’t come back, and also they couldn’t brand you a criminal without a jury trial.’” He played on their pride as southerners. We’ve got a chance to show the Yankees that we’re not all ignorant redneck racists down here like they’d like to think, he said. He played on their hopes: their hope that he might become President, and that if he did, that would be a victory for the South, a victory so great that its possibility should overrule all other considerations. “He used this feeling, he played on it—this was a deliberate tactic of his,” Reedy says. He played on their fears for the South. For the first time, he said, Negroes have a real leader. “A religious leader. A nonviolent man of the cloth. You all know what that means, don’t you? A colored Baptist preacher? That’s one man who controls the colored community…. The colored are not going to give up. They’re determined…. We can’t continue to push these things down their throats. They won’t sit still any longer. We have to give them something.” He told them, “If we don’t allow progress on this issue, we’re going to lose everything. There’s going to be cloture. Rule 22 is going to go. And our opportunity to delay, or to slow down, and to bring some kind of an order to change, will be gone.” Or: “These Negroes, they’re getting pretty uppity these days and that’s a problem for us since they’ve got something now they’ve never had before, the political pull to back up their uppityness. Now we’ve got to do something about this, we’ve got to give them a little something, just enough to quiet them down, not enough to make a difference. For if we don’t move at all, then their allies will line up against us and there’ll be no way of stopping them, we’ll lose the filibuster and there’ll be no way of putting a brake on all kinds of wild legislation. It’ll be Reconstruction all over again.”
And he played on their fears for themselves—an effective tactic, because Matt Neely’s death, expected daily, would reduce the number of Democrats in the Senate to forty-eight. There were currently only forty-six Republicans, but the Republican Governor of West Virginia was expected to name a Republican to Neely’s seat, so there would be forty-seven. Joe McCarthy had died in May, and a special election to fill his seat would be held on August 28, between a Democrat, William Proxmire, and a Republican, Walter J. Kohler, a popular former governor. Since no Democrat had won a Senate seat from Wisconsin in twenty-five years, it was expected that after the special election, the Republicans would have forty-eight seats. The party count would be tied, a tie would be broken by the Vice President—the Republicans were planning to reorganize the Senate as soon as Kohler was sworn in. A confidential memo sent to Lehman in Switzerland by Julius Edelstein reported that “Lyndon Johnson [has] been warning all the southerners that unless they relaxed a little and let some kind of a civil rights bill go through, they were in danger of losing their chairmanships. He urged them not to filibuster because to filibuster the civil rights bill would ensure a victory for Kohler….”
With the liberals—not with the most ardent “red-hots,” for with them there was no hope, but with the rest of the Democratic liberals—the key words were also we and us. He made them feel that they were in a battle, and that in that battle he was on their side. Warning one liberal senator that there must be a liberal “sentry” on the floor at all times to guard against a sudden southern legislative maneuver, he told him, “They’ll get us on the floor if we’re not manned on the floor at all times, so we always have to have a man there.” He told him, “They’ll pick our moment of least resistance and move in.” He played on their fears—the fear of what southern power in the committees could do to their vital projects. Once, when Wayne Morse was threatening, in order to bring the South to heel, to block a unanimous consent agreement some southerners wanted, Johnson told him, “Look, you’re going to be in the position of wanting [their] support in the future. This [the jury trial amendment] isn’t that hurtful to your state’s interest or to your own convictions. Don’t build it up into a blockage.”
He had to persuade the northerners to allow some sort of jury trial amendment in the bill, even though such an amendment stripped the bill of its teeth. He tried to make them understand that the important thing was to get some bill, any bill, passed “to show them we can do it”—“Once we’ve got the first one passed, we can go back and improve it”—and that the only way to get it passed was to vote for the amendment. “Jim Eastland knows we have to have a civil rights bill,” he said to them. “But he has to have a jury trial amendment. We’ve got to give him a jury trial amendment.” He tried to make them understand that so long as the bill contained provisions for voting rights, it was still worth passing: “Give them the vote, that’s what matters. Then things’ll change, you’ll see,” he said. When Hump
hrey tried to argue with him, he said, “Yes, yes, Hubert, I want all those other things—buses, restaurants, all of that—but the right to vote with no ifs, ands or buts, that’s the key. When the Negroes get that, they’ll have every politician, north and south, east and west, kissing their ass, begging for their support.”
Keeping the liberals from forcing the issue to a vote was becoming more and more difficult, for, knowing that they had a majority of the Senate on their side, they thought only about the vote, not about the maneuvers that would precede it, and he tried to make them understand. Because of their distrust of him, he often relayed his word through others. In one liberal caucus, Clint Anderson interrupted a barrage of red-hot bravado about their chances of carrying some amendment to tell them their vote count was wrong (“Let me give you some advice,” Anderson said. He named five Democratic senators whom the liberals were counting on their side. You’re right in thinking that “you’re going to need their help,” he told them. “But you haven’t got it now”) and to advise them to stick with a man whose counts were more accurate (particularly since that man was of their party): “I remember that for many years whenever we tried to do something on civil rights, Bob Taft would go over and whisper to Dick Russell and we’d be licked. So let’s follow our own leader and not these recent Republican converts.” Once, John Carroll told his administrative assistant, Harry Schnibbe, “Goddammit, we’ll go on the floor with this. McNamara will do this, and Paul will do that, and we’ll make an issue of this.” Having learned of the liberals’ plans, Johnson sent Bobby Baker to intercept Schnibbe on the floor: “Harry, this is a grave mistake. If you do this, Russell will do this, and Ellender will do this…. The Majority Leader has got to cool this down before we can go forward.” And sometimes he delivered the warning himself. “Look, if you press too hard, if you insist on perfection, you’ll get it, but it won’t be passed.” Day after day, he was arguing one side of a point with the southerners and the other side with the liberals—and arguing both sides with equal persuasiveness. At the same time that he was telling the South that he had counted votes and had found that a filibuster couldn’t win, he was telling liberals that he had counted votes and had found that they couldn’t beat a filibuster. “He was playing it out of both sides,” Harry McPherson was to recall. “He was down in the trenches with guys who were determined not to let the bill pass, and he was doing his damnedest by every conceivable device to bring them around. He warned them [the southerners] that much worse would come unless they would pass this modest bill.” They believed him. “He made them think … he’d be with them forever.” At the same time, McPherson says, “he would tell some of the northerners that if they would only let this modest bill go through, they would get a better bill later.” And they believed him. He told Joe Rauh, “You can’t beat a filibuster,” and Rauh says he was correct: “We had the majority, but we didn’t have two-thirds.”
Master of the Senate: The Years of Lyndon Johnson Page 151