An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964

by Todd S. Purdum

  In the end, Kennedy did not move swiftly on the executive or legislative front. Asked at a news conference on February 1 what executive action he might take on civil rights, the president said only that he had been reviewing the matter “and I’m hopeful that we will shortly conclude that analysis and have some statement to make on it.” As for legislation, Lee White, another of Kennedy’s civil rights advisers, would recall: “I think his decision was that there was going to be plenty of time to fight the battle of civil rights legislation, that there were many other things that could and should be done in the way of domestic legislation that would benefit all people at the lower end of the economic ladder.”

  Kennedy did not even appoint a civil rights adviser in the White House until a week later, and then only in the most backhanded way. The Reverend Theodore Hesburgh, president of the University of Notre Dame and a member of the United States Commission on Civil Rights, had come to the White House to lobby the new president for action, complaining, for example, that there were no blacks in the Alabama National Guard. “Look, father, I may have to send the Alabama National Guard to Berlin tomorrow and I don’t want to have to do it in the middle of a revolution at home,” Kennedy said. He assured Hesburgh, though, that he had a special adviser for civil rights, and that was Harris Wofford. This was news to Hesburgh, who was a friend of Wofford’s from their time together on the commission and who had just seen him.

  It was also news to Wofford, who had been waiting for a formal offer to join the administration and worrying about his mortgage in the meantime. A few minutes later, he got a call telling him to report to the White House, where he was quickly sworn in as a presidential assistant, without so much as a meeting with the president. The job Wofford really wanted—assistant attorney general for civil rights—went instead to Burke Marshall, a respected antitrust lawyer, whose principal appeal for the president was that, unlike the passionate Wofford, he had no particular background in civil rights.

  * * *

  SO IN THE CROWDED two years since 1961, Kennedy had traveled a long, hard road on civil rights. The searing crises of the Freedom Rides, Ole Miss, and Birmingham had left their mark. As he surveyed the morning newspapers on Tuesday, June 11, 1963, the president found yet another horrifying picture—this time not from Birmingham, but from Saigon, half a world away, where a seventy-three-year-old Buddhist monk named Thich Quang Duc had burned himself alive at a busy intersection to protest the policies of President Ngo Dinh Diem of South Vietnam. “Jesus Christ!” Kennedy exclaimed when the attorney general telephoned him first thing that day to talk about the situation at the University of Alabama, which was also very much on the president’s mind.

  Later that same morning, Deputy Attorney General Nick Katzenbach was prepared to escort two black students, Vivian Malone and James Hood, into the University of Alabama at Tuscaloosa, where Governor Wallace had vowed to resist their admission by standing in the door of Foster Auditorium. The administration had known that such a confrontation was coming, even as it dealt with the violence in Birmingham. Weeks earlier, a federal court had ordered the students’ enrollment, and now the White House—still stung by the experience of Ole Miss—was determined to avoid more violence, or a dangerous confrontation with Wallace, who had pledged in his January 1963 inaugural address to maintain “segregation now, segregation tomorrow, segregation forever!”

  This time, the Kennedy administration had a carefully choreographed plan: to allow the ritual confrontation that Wallace wanted, then promptly assert federal control of the Alabama National Guard and register the students right away.

  The president began his working day at breakfast with the leaders of both parties in Congress, where the Senate majority leader Mike Mansfield told him there simply had to be a civil rights bill. “We’re still talking about that,” Kennedy said lightly, insisting that he wanted a bill that would not derail the rest of his agenda: “The minimum we can ask for and the maximum we can stand behind.” Following Lyndon Johnson’s advice, Kennedy had already met privately with the Republican leaders, Everett Dirksen and Charles Halleck, to sound them out about what they might find acceptable in a bill. “No commitments were requested, and none were given,” Dirksen would recall, but the Senate Republican caucus had announced, in tepid tones, that it would “support legislation that may be required to meet the problem.”

  Meantime, in Alabama, the most immediate aspect of the problem was evaporating in the blistering one-hundred-degree heat. Nick Katzenbach—perspiring and towering almost comically over the bantam Wallace—ordered the governor to “cease and desist from unlawful obstructions.” Wallace went through the show of denouncing what he called an “unwelcomed, unwarranted and force-induced intrusion” and “a frightful example of the suppression of the rights, privileges and sovereignty of this state.” But in short order, after Robert Kennedy asked the president to sign the executive order federalizing the Alabama guard, Wallace stepped aside. The president had missed the initial live broadcast of the confrontation, but he watched a replay in the office of his secretary Evelyn Lincoln and decided he wanted to use the television time he had already tentatively reserved for that night.

  Ted Sorensen would have only a few short hours to prepare what he suddenly realized would be one of the most important speeches of Kennedy’s presidency. He had no shortage of material. The president had effectively been preparing for years for this moment. Sorensen dug out some sobering statistics that Harris Wofford had gathered for Kennedy to use in his first campaign debate against Richard Nixon in 1960, and that the president had invoked from time to time ever since:

  The Negro baby born in America today, regardless of the section or the state in which he is born, has about one-half as much chance of completing a high school as a white baby born in the same place on the same day, one third as much chance of completing college, one-third as much chance of becoming a professional man, twice as much chance of becoming unemployed, about one-seventh as much chance of earning $10,000 a year; a life expectancy which is seven years shorter and the prospects of earning only half as much.

  While Sorensen worked away, the president kept a series of late afternoon meetings—with Averell Harriman, a foreign policy adviser, to discuss coming negotiations on the Nuclear Test Ban Treaty; with Edward R. Murrow, the former journalist who now headed the United States Information Agency, to discuss coverage of the civil rights issue around the world; and with NASA administrator James Webb to discuss the space program.

  Finally—after his frantic last round of drafting with the attorney general in the Cabinet Room—the president took his place at his desk and leaned in as the hour struck eight. He began with a recap of the scene in Tuscaloosa, immediately casting the matter as a concern for the whole nation, saying he hoped “every American, regardless of where he lives, will stop and examine his conscience about this and other related incidents.” He added, “This is not a sectional issue … This is not even a legal or legislative issue alone. It is better to settle these matters in the courts than on the streets, and new laws are needed at every level, but law alone cannot make men see right. We are confronted primarily with a moral issue. It is as old as the Scriptures and is as clear as the American Constitution. The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities, whether we are going to treat our fellow Americans as we want to be treated.”

  In those few words—among the most eloquent and perhaps the bravest of his life—John F. Kennedy had done what no other American president, not even Abraham Lincoln, had ever done: he had committed his country to assuring full equality for black Americans in the eyes of the law, and had declared that doing so was a moral imperative. Even from the distance of half a century, the words echo magnificently. On the night Kennedy first uttered them, they were lightning bolts in the summer sky.

  But if Kennedy’s words were ringing, they were also careful—even as he veered from the text with conversational ad-libs from time
to time. He had edited Sorensen’s final draft with a skilled eye toward bleeding it of needless provocation. Where Sorensen had written that “cesspools of segregation and discrimination exist in every state,” Kennedy toned that down to “difficulties over.” Where Sorensen had proclaimed, “a social revolution is at hand,” Kennedy warned of “a great change.” Where Sorensen had lamented that the “pace is still shamefully slow,” Kennedy contented himself with “very.”

  Kennedy did not, however, minimize the scale of the legislation he was seeking. He said he would ask for a bill “giving all Americans the right to be served in facilities which are open to the public,” a right that, he added spontaneously, “seems to me to be an elementary right.” He said he would also ask for new authority to allow the federal government “to participate more fully in lawsuits designed to end segregation in public education” (the old Part III from 1957), along with greater protections for the right to vote. But legislation alone could not solve the problem, he added. It must be solved, he said, “in the homes of every American in every community across our country” (omitting Sorensen’s suggestion that it must also be solved in the “hearts” of people). He paid tribute “to those citizens North and South” who had been working “to make life better for all,” adding, “Like our soldiers and sailors in all parts of the world, they are meeting freedom’s challenge on the firing line, and I salute them for their honor and their courage.”

  And then, eleven minutes and seventeen seconds into his speech, the president “ran out of runway,” as Lee White would recall. He looked up from his reading copy, stared straight into the camera, clasped his hands on the little reading stand on his desk as the camera pulled back, and went on, extemporaneously, for another two and a half minutes.

  “My fellow Americans, this is a problem which faces us all—in every city of the North as well as the South,” he said. “This is one country. It has become one country because all of us and all the people who came here had an equal chance to develop their talents. We cannot say to ten percent of the population that you can’t have that right; your children cannot have the chance to develop whatever talents they have; that the only way they are going to get their rights is to go in the streets and demonstrate. I think we owe them and we owe ourselves a better country than that.”

  Then he concluded, “As I’ve said before, not every child has an equal talent or an equal ability or equal motivation, but they should have the equal right to develop their talent and their ability and their motivation, to make something of themselves. We have a right to expect that the Negro community will be responsible, will uphold the law, but they have a right to expect that the law will be fair, that the Constitution will be color-blind … This is what we’re talking about, and this is a matter which concerns this country and what it stands for, and in meeting it, I ask the support of all of our citizens. Thank you very much.”

  Barely a minute after Kennedy went off the air, Martin Luther King dispatched a telegram to the White House, calling the speech “one of the most eloquent, profound and unequivocal pleas for justice and the freedom of all men ever made by any president.”

  Four hours later, in Jackson, Mississippi, a rifleman hidden in a honeysuckle bush made a decidedly different statement: He shot the NAACP’s fearless crusader Medgar Evers dead, in the back, as he walked toward his house from the driveway.

  3

  The Heart of the Problem

  FRIDAY, JUNE 21, 1963

  ROBERT FRANCIS KENNEDY WAS not only his brother’s attorney general but also his most trusted confidant, so it was no surprise that the longest day of the year should find him working overtime to sell the civil rights bill the administration had sent to Congress just two days before. Together with the president, Bob Kennedy attended a two-hour White House meeting with two hundred forty-four of the nation’s most prominent lawyers (sixty-six of them from southern states), along with three of his own predecessors as attorney general, aimed at explaining and promoting the bill.

  The meeting was just one in an elaborately planned series of gatherings—of business and labor leaders, women’s groups, religious organizations—arranged by the White House staff in the days before and after the bill’s introduction as a way of building public support. The meetings were off the record and little mentioned by the White House press office. They were aimed not so much at attracting national publicity as at building grassroots backing—and biracial cooperation—in cities around the country. The Kennedy brothers well understood that they now had a big selling job ahead of them—with Congress and with the nation as a whole—if their bill was to have any chance of passing.

  It was no accident that in the president’s address to the nation on June 11, he had spoken only in general terms of the measures he would seek. No actual bill yet existed. In the eight days between the president’s speech and the administration’s formal submission of the measure to the House of Representatives on June 19, the lawyers in Bob Kennedy’s Justice Department had worked to finish piecing together a proposal that would achieve two goals: first, that it could pass constitutional muster; and second, that it could win the support of Republicans, who would be crucial in passing any bill, because of the implacable opposition of the southern Democrats. Already, the attorney general had met personally with key legislators, the first step in what would become some eighty hours of official testimony by year’s end.

  The Justice Department staff lawyers, an all-white crew led by Harold Greene and Norbert Schlei, had debated whether to base the heart of the bill—its prohibition on discrimination in public accommodations—on the Constitution’s commerce clause, which granted Congress the power to regulate interstate commerce, or whether to base it on the Fourteenth Amendment’s guarantee of “equal protection of the laws.” The commerce clause had been used to justify various federal regulatory measures dating back to the New Deal and the Progressive era, but extending its reach into race relations was deeply controversial. The Fourteenth Amendment argument had the strategic advantage of being supported by many Republicans, but also a drawback, because of the lingering 1883 Supreme Court ruling—which had never been overturned—that the amendment did not apply to the actions of private businesses.

  In the end, the administration chose to rely on both rationales. Its bill—formally christened H.R. 7152 because it originated in the House of Representatives—was broad, if not quite as ambitious as the most ardent civil rights supporters had hoped it would be. It had seven main provisions:

  The first would enforce the right to vote in federal elections (but not state contests) through the appointment of government referees. It would not bar state literacy tests, but would require that they be the same for all individuals.

  The second would outlaw discrimination in hotels, motels, restaurants, and other public accommodations (while exempting, without defining them, private clubs).

  The third would allow the attorney general to initiate suits to desegregate public schools when asked to do so by someone unable to sue (a less sweeping version of the old, failed Part III from the 1957 bill).

  The fourth would establish a federal “Community Relations Service” to assist individuals and communities in resolving racial disputes, and relieve the growing pressure on the Justice Department.

  The fifth would extend the life of the Civil Rights Commission (originally created by the 1957 bill) for another four years.

  The sixth would prohibit discrimination in federally assisted programs in states and localities.

  And the seventh would enshrine in law a federal “Equal Employment Opportunity Commission”—a permanent version of the special presidential committee that Kennedy had named Lyndon Johnson to lead—to address discrimination by government contractors.

  But—to the chagrin of civil rights groups—this seventh provision pointedly did not include a strong Fair Employment Practices Commission, with power to investigate job discrimination by private companies. Together with the provision to end segrega
tion in public places, such a measure had long been the holy grail of civil rights organizations, and its absence again left them deeply wary about President Kennedy’s commitment to a strong bill, after their first flush of enthusiasm over the June 11 speech. For its part, the White House believed that inclusion of an FEPC provision could alienate pro-business Republicans and thus jeopardize the whole bill.

  The House Republican leader, Charles Halleck, was keeping his counsel on the bill. In a speech in Atlanta on the same day as the lawyers’ meeting at the White House, he declined to state his own views. “I’m not going to admit I’m straddling the fence,” he said. “As a leader, it does not do me any good to go one way if the troops go another. I have been asked scores of times about my personal position. I haven’t said. I’m being perfectly fair and honest about it. I just don’t know.”

  As it was, Senator Dirksen had already announced his firm opposition to the provision for desegregating public accommodations. So, in a spirit of bipartisanship, majority leader Mike Mansfield introduced the administration’s bill verbatim in the Senate—a carbon copy of H.R. 7152—but then joined with Dirksen to offer an alternative, identical in every way, except that the public accommodations section was omitted. Mansfield and another Democrat, Warren Magnuson of Washington, then offered a third bill, covering only public accommodations, which would be referred to the Senate Commerce Committee.

  The White House took pains to portray its bill—unveiled the same day as Medgar Evers’s burial at Arlington National Cemetery—as a noncontroversial approach to a knotty problem. “The legal remedies I have proposed are the embodiment of this nation’s basic posture of common sense and common justice,” the president said in his official message accompanying the bill’s submission to Congress.