In a flash, Humphrey and his civil rights allies were on the defensive. The issue, of course, was that all-white southern juries would be unlikely to uphold prosecutions for contempt of court. But, as had been true in the debate over the 1957 civil rights bill, it was hard for civil rights supporters to explain why anyone should oppose such a seemingly basic right, enshrined in centuries of Anglo-Saxon law. The 1957 bill had allowed nonjury trials for criminal contempt—the defiance of court orders—in cases of voting rights or public accommodations. But it had limited punishment in such cases to a $300 fine or forty-five days in jail. The House-passed version of H.R. 7152 had retained this provision in Titles I and II (voting rights and public accommodations) but had given no jury trial protection for any of the bill’s other sections. Talmadge’s amendment would extend mandatory jury trials to all cases of criminal contempt.
Russell now took the floor to say that depriving defendants of a jury trial would be to revert to the “ancient practice in England, under the common law which existed at the time of Chaucer,” when “men were tried in private and had no rights whatsoever.”
As debate over the Talmadge amendment preoccupied the Senate’s public discourse, Russell was entitled to believe he had the civil rights forces on the ropes. What he could not hear was the quiet conversation on the floor that same day—“a very interesting talk,” John Stewart would call it in his diary—between Hubert Humphrey and Everett Dirksen. Humphrey had approached Dirksen for one of their regular chats, and now, for the first time, the Republican leader confided that he knew that H.R. 7152 was going to pass, and “that he knew it was his duty, or at least his position, whereby he would have to lend his weight and influence to the bill.” Dirksen told Humphrey that he believed the southerners “were running to the end of their rope,” that there was little more they could say, and that they were convinced the bill would pass largely in its current form, perhaps without even resorting to cloture. When Humphrey insisted that the southerners would demand a cloture vote as political cover for dropping their fight, Dirksen at last agreed to help round up the Republican votes that would be needed to close off debate.
“In short,” Stewart concluded, “it appears that Dirksen is beginning to swallow the great man hook and, when it is fully digested, we will have a civil rights bill.”
* * *
THE FIRST CONCRETE SIGN of Dirksen’s new spirit of cooperation came on Friday, April 24, when he joined with Mike Mansfield to offer a substitute for the Talmadge jury trial amendment, and their “Mansfield-Dirksen Substitute” now became the Senate’s pending business. After negotiations with the pro-civil-rights forces and Justice Department lawyers, Dirksen had agreed to a proposal that would allow nonjury trials in cases of criminal contempt but would limit punishment in such cases to a fine of $300 or thirty days in jail. (The administration wanted to keep the forty-five-day sentence from the House-passed bill, while Dirksen wanted ten days, so they split the difference.)
The details of the proposed amendment were less important than the sheer fact that Dirksen was at last working directly with the pro-civil-rights senators to forge a bill. In a meeting of the bipartisan floor leaders’ group, Clifford Case of New Jersey put his finger on just what made the southerners’ demand for a jury trial amendment so tricky: it was an idea that appealed across the board, to liberals and conservatives alike, and the civil rights forces were not in a strong position to fight it. The best they could hope for was that Dirksen could give them cover to find a more palatable proposal.
“Let’s not kid ourselves,” Joseph Clark, a staunch liberal from Pennsylvania, told his colleagues. “This has become the Dirksen bill! I deplore it, but that’s it.”
But the Mansfield-Dirksen jury trial proposal was not enough to attract Russell, who on Monday, April 27, continued to rail against the bill as “violative of all the laws and concepts of justice that free men have had since the dawn of history.” Because the Senate has no mechanism for forcing action short of cloture itself, votes can generally occur only with the unanimous consent of the members. And because the pro-civil-rights forces had refused to allow consideration of the Talmadge amendment, the southerners retaliated by refusing to entertain any other amendments, including Dirksen’s proposed changes to Title VII.
So the Senate remained paralyzed. At the same time, five thousand religious leaders from around the country streamed into town for their biggest lobbying push yet—a long-planned interfaith convocation at Georgetown University on Tuesday, April 28. “It is your job, as men of God, to reawaken the conscience of your beloved land,” Lyndon Johnson told representatives of the group at the White House the next day.
Rafts of clergymen and their lay allies also descended on Capitol Hill to lobby senators directly, much to Dirksen’s annoyance. “I fairly scream and hope that I can get some work done,” he told Rabbi Irving Rosenbaum of Chicago Loop Synagogue. “You aren’t the only delegation, you know.” In a meeting in a reception room outside the Senate chamber, one visiting priest told Dirksen, “We want you to make your decisions in terms of your conscience, your concern for the entire country, and the goals of the United States.”
“I would make it no other way,” Dirksen replied tersely.
When B. Julian Smith, bishop of the Christian Methodist Episcopal Church of Chicago, allowed that “If you could just paint your face black, like mine, and go with me into the world for two days, I wouldn’t have to say a word,” a weary Dirksen answered, “Must I do that? After thirty years in Congress, can’t I evaluate the importance of legislation? Really, do I have to do that?” Finally, Dirksen told the group, “The best thing you can do is say a prayer for me.”
Dirksen was feeling testy, his resentment still simmering that black voters in Illinois—and national black leaders such as Clarence Mitchell and Roy Wilkins—had not adequately recognized what he considered his sympathetic civil rights record over the years, or supported him in his 1962 reelection campaign. But he was also in need of prayerful intercession. For on this same Wednesday, Dirksen would have an even more frustrating encounter—with his old friend Lyndon Johnson, to whom he had gone seeking a deal.
* * *
JOHNSON AND DIRKSEN’S CORDIAL relationship dated back to their days in the House of Representatives, but it deepened when Dirksen became the Senate Republican leader in 1959. As majority leader, Johnson had been thrilled to be the first lawmaker in the capital to acquire a telephone in his official limousine. When Dirksen eventually got one, too, he promptly telephoned Johnson’s car to say he was calling from his new mobile line, only to hear Johnson say, “Can you hold on a minute, Ev? My other phone is ringing.”
The two men had tangled mightily over the 1957 Civil Rights Act, with Dirksen unsuccessfully opposing Johnson’s bargaining with the southerners to weaken it. But their mutual affection was real and unforced. “We were both agreed,” Dirksen once recalled, employing a bit of sarcastic indirection, “that the Senate could not be a functioning body unless the ladies got along and understood each other and each other’s problems.” So he and Johnson came, he added, “to understand each other quite intimately” and were, despite their partisan differences, “the very best of friends.”
Ten weeks earlier, when Dirksen had been hospitalized for a bleeding ulcer in the middle of the House debate on H.R. 7152, Johnson called his room at Sibley Hospital to cheer him up. “If you’d quit drinking that damned Sanka and get on a good Scotch whisky once in a while,” the president advised, as a groggy and sedated Dirksen replied, “Well, I think you got a point there.”
Dirksen was used to Johnson’s ready acceptance of his choice of Republican nominees for various federal boards and commissions. “You couldn’t name a commission where there wasn’t a Dirksen man on it somewhere,” Jack Valenti would recall. Just before Christmas, Dirksen had called the president about an ambassadorial appointment for William Macomber, an Eisenhower-era State Department official.
“Do you want him appointed?�
� Johnson asked.
“Well, he’s a damn good guy,” Dirsken replied.
“Well, I don’t care if he’s a good guy,” the president rejoined. “There are a million Johnson men that are good guys. But he’s a Republican, and if we’re going to appoint Republican ambassadors, they better be your Republican ambassadors. I’m not going to be appointing them just out of the skies.”
“There are all kinds of Republicans,” Johnson concluded. “You’re my kind.”
So Dirksen was entitled to think that Johnson might be ready for one of his famous compromises, might be willing to strike a grand bargain on H.R. 7152. But the president—his back already up at the protracted Senate debate—was in no mood for wheeling or dealing. On top of everything else, Johnson was irked that Dirksen had told the press that he intended to lobby the president for a deal—and in the process had criticized Johnson’s holding one of his beagles up by the ears to pose for White House photographers.
“You say you want the House bill without any change,” Dirksen had told reporters, describing his proposed line of argument with the president. “Well, in my humble opinion, you are not going to get it. Now it’s your play.”
Johnson was having none of that.
“I’m going to tell him that I support a strong civil rights bill,” Johnson told Mike Mansfield on the telephone from the White House before Dirksen arrived. “He gave out a long interview of what he was going to tell me today before he comes, which is not like him. I don’t know what’s happening to him here lately. He’s acting like a shit-ass … First thing, he said he wouldn’t treat his dog like I treated mine … And it’s none of his damn business how I treat my dog, and I’m a helluva lot better to dogs and humans, too, than he is.”
Mansfield told the president that he was reluctantly considering the idea of seeking a cloture vote on the jury trial question, though he said he would much rather hold out for cloture on the whole bill.
“Well, then what I’m going to say to him is this,” Johnson replied. “I’m going to say, ‘Now, these details can’t be decided down here in the White House, legislative-wise. I have the attorney general, and he’s in constant contact with Senator Mansfield and Senator Humphrey, and whatever you all work out, I’m sure will be agreeable.’”
“Yes sir,” Mansfield replied. “I’ll put it back on us and stroke his back.”
Dirksen arrived in the Oval Office with a commemorative “Baby Ben” Westclox alarm clock—along with the chief executive of the firm that made them in LaSalle, Illinois—only to learn that there was to be no deal at all. He was in and out of the White House in less than twenty minutes, and was forced to tell the press that he and the president had barely touched on the topic of civil rights.
In fact, the very next day, Thursday, April 30, Johnson called Hubert Humphrey to upbraid him for even seeming to suggest that the president might be amenable to some compromise on the bill. “They would like very, very much to say I weakened the bill and I’m not going to—that’s not my position,” the president said. “I’m against any amendments. Going to be against them right up until I sign them.”
* * *
IN THE WAKE OF the Dirksen-Johnson standoff, a fresh complication now arose. Thruston Morton, a moderate Republican from Kentucky, had huddled with Russell and Sam Ervin and come up with his own jury trial amendment as a “perfecting” amendment—that is, one that offered new language, but not a complete substitution—to Talmadge’s original version. Morton was in favor of civil rights, but during a postmortem of the 1960 election, in which he had served as chairman of the Republican National Committee, he shared Richard Nixon’s frustration that the black vote was a “bought vote, and it isn’t bought by civil rights,” to which Morton added, “The hell with them.”
Morton’s amendment would compel jury trials under every section of the bill except Title I—the voting rights section—in which judges would still have discretion to order nonjury trials, as they did under the 1957 Act. On Friday, May 1, Morton called up his amendment and asked it be made the pending business. That meant that it would now have precedence over the Mansfield-Dirksen jury trial amendment, as would a similar perfecting amendment by Morton’s Kentucky colleague, John Sherman Cooper, which would order automatic jury trials for some sections of the bill but give judges discretion in others.
The pro-civil-rights forces immediately feared that the Morton and Cooper amendments might well pass—and thereby undo the progress they had hoped they were making by working with Dirksen. So it was no surprise that Russell now dropped his objection to consideration of any amendments and agreed with Mansfield and Dirksen that voting on the jury trial amendments could begin the following Wednesday, May 6. “I am sure that we can find some way whereby the Senate can vote,” Russell said drily, “even though this vitally important amendment has not been discussed at the length which its importance would justify.”
That same day, the emotional symbolism of the jury trial issue boiled over into an angry twenty-minute exchange on the floor between Russell and Jacob Javits, who suggested that white southern juries would be unlikely to administer evenhanded justice in civil rights cases. Russell immediately leaped to his feet, Javits objected to the interruption, and an increasingly bitter colloquy ensued until Russell said that Javits always managed to suggest that there was “something fundamentally evil and sinful about people living in the South,” and always made his comments about southern juries with “a little sneer on his face.” Russell cited the case of Kitty Genovese, a young Queens woman who had reportedly been attacked and left to die even though nearly forty of her neighbors heard her screams. “I say that couldn’t happen in the South, demean it as you may,” Russell said. Javits insisted he had intended no offense, and the two men shook hands. But the encounter reflected the increasingly rancorous mood in the chamber.
The following day, Saturday, May 2, Humphrey wondered aloud on the floor whether his colleagues might be persuaded to allow votes on all pending amendments—and the bill itself—by Memorial Day. “I have no particular holiday in mind, other than the Fourth of July, to which I would like to show some reverence,” Humphrey said. “However, if they have a particular day in mind that they wish to honor with a vote, I am sure favorable consideration would be given to such a proposal.”
Allen Ellender of Louisiana promptly piped up, “How about Christmas?”
Two days later, on Monday, May 4, as George Smathers was inveighing against the defects of Title VII to an almost empty Senate chamber, Kenneth Washington, a twenty-six-year-old black man from Passaic, New Jersey, shouted from the gallery: “How can you say you are protecting the black man when there are only five of you here?” It was a fair question, but Washington’s breach of decorum landed him in D.C. General Hospital for mental observation all the same.
* * *
WITH HIS JURY TRIAL amendments stacked up behind the southerners’ alternatives, Ev Dirksen now sought another path. When reporters asked him what he was trying to do, he responded with a bit of wordplay that summed up his challenge: “I’m trying to unscrew the inscrutable.” To that end, Dirksen invited Humphrey and Kuchel, along with an extended bipartisan group of senators and aides interested in the bill, to a meeting on Tuesday morning, May 5, in his office just thirty-three paces off the Senate floor. Joined by Bob Kennedy and Nick Katzenbach, they gathered around a polished mahogany table under a tinkling crystal chandelier that had once belonged to Thomas Jefferson.
To general astonishment, Dirksen announced that instead of just one remaining amendment—his long-promised proposal regarding Title II, the public accommodations section—he now had scores of other proposed changes, the result of careful review by his staff lawyers Neal Kennedy, Clyde Flynn, and Bernard Waters. The amendments were divided into three groups: Track A (technical in nature), Track B (semitechnical), and Track C (substantive). If his colleagues were surprised by Dirksen’s switched signals, they should not have been. He had more than once remarked that hi
s one unshakable principle was flexibility, and his son-in-law, the future senator Howard Baker of Tennessee, would later recall that “virtually every idea he held, he held tentatively.” In 1950, when Dirksen first ran for the Senate, the Chicago Sun-Times published an analysis of his voting record in the House of Representatives, accusing him of switching his position on military preparedness thirty-one times, on isolationism sixty-two times, and on farm policy seventy times during his sixteen years in Congress.
Dirksen had never made any secret of his qualms about H.R. 7152. In the private notebook in which he recorded his running observations about the pending bill, he summed up his questions about Title II, in capital letters for emphasis: “THE PURPORT OF THE LANGUAGE IN THIS TITLE IS simply this,” he wrote. “Can Congress destroy FREEDOM OF ASSOCIATION in the case of privately owned and operated businesses?” Dirksen represented the Land of Lincoln, but even in Lincoln’s time, Illinois had embraced a wide array of views on civil rights, race, and federal power. “You have to remember that Illinois runs both north and south of the Mason-Dixon line,” one of Dirksen’s aides would recall. “The Senator grew up seeing both sides of the question. Dirksen is a man without prejudices and believes in equal rights, but he also knows how the local people feel when the federal government shoves something down their throats.”
Indeed, just after the House passed H.R. 7152 in February, Dirksen had urged reporters to “do me the justice of putting in whatever you write down that I’ve always had an open mind and I always feel free to come along with alternatives and substitutes that are infinitely more to my liking, because I still take my freedom straight. I’m like little Johnny when the teacher said to him, ‘Johnny, how do you spell straight?’ He said, ‘S-t-r-a-i-g-h-t.’ She said, ‘And what does it mean?’ He said, ‘Without ginger ale.’ And that’s the way I take my freedom.”
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 31