Now Dirksen was ready with yet another batch of “alternatives and substitutes,” and the crucial action on the bill shifted to his office suite, out of respect for the minority leader’s role as the indispensable man.
A key player in the deliberations to come was Neal Kennedy, a forty-three-year-old Yale-educated, Harvard-trained lawyer from Chicago who since 1959 had been Dirksen’s lead counsel on the Judiciary Committee’s minority staff. Kennedy had been an Army Air Corps weather officer in World War II, leapfrogging across the Pacific in advance of General Douglas MacArthur to provide forecasts for the coming invasion of Japan. In the 1950s, in between work in private practice and a job as an assistant United States attorney in Chicago, he had traveled to such exotic destinations as Pakistan and Afghanistan and had hitchhiked all over Africa, from Cairo to Cape Town and from Nairobi to Timbuktu. He had serious doubts about how the enforcement provisions of H.R. 7152 would work in practice, especially for the sections governing access to public accommodations and discrimination in employment.
“Dirksen and I had the same general approach to everything,” Kennedy would recall. “Support the businessman fighting to survive in the capitalist system.” In fact, when Dirksen first hired Kennedy, he sent his newest lawyer a brief memo outlining his view of a senator’s role in interceding with the federal bureaucracy on behalf of constituents. “I have proceeded on the theory,” Dirksen wrote, “that government is at once so labyrinthine, so bewildering, so complex, so big, so baffling, so frustrating, that the average citizen—and this goes for businessmen and others who are normally well informed on governmental operations—that it becomes impossible for the citizen to find his way around in this uncharted wilderness.”
Because James Eastland’s Judiciary Committee had had no meaningful role in forging the civil rights bill—having first refused to move the Senate version along and then having been shut out of consideration of H.R. 7152 by Mansfield—it now fell to Neal Kennedy to create an informal bipartisan group that could do the work of revising the bill in a way that would win the support of Dirksen and enough of his fellow Republicans to achieve cloture. “This had to be a bipartisan bill,” Kennedy would recall, so he reached out to [his] counterpart in Mike Mansfield’s office, a young lawyer named Kenneth Teasdale. “I said to him that I thought the first thing we should do is to get the fifteen greatest Senate aides, legislatively speaking, to work with us, and he agreed,” Kennedy recalled. “And I told him that he should get 60 percent of them, since that was the basic [partisan] ratio, and I get the others, and he agreed.”
Under Kennedy’s direction, there now began a process “almost unprecedented in the annals of legislative history,” as the journalist Elizabeth Drew would write. “A sort of ad hoc committee of Senators with an interest, senators who were friends of the Senators with an interest, senators’ aides, and Justice Department officials took the place of a regular legislative committee.”
Like the private negotiations involving Bill McCulloch, John Lindsay, and Nick Katzenbach that had settled the final House version of the bill, the discussions in Dirksen’s suite had the advantage of occurring behind closed doors, out of sight of reporters and lobbyists. “True give and take was possible, decisions were neither public nor final, and the need to sustain one’s public posture on certain issues was greatly reduced,” John Stewart would recall.
“We were all very dear friends,” Ken Teasdale would remember. “I mean, we all got along, we all were heading in the same direction.”
* * *
BUT ALL WAS NOT collegial as the Dirksen working group began its negotiations that May 5. If Hubert Humphrey and Bob Kennedy were taken aback by Dirksen’s demands for a raft of new amendments, some members of the minority leader’s own caucus were equally discomfited by his decision to cooperate with the administration and the pro-civil-rights Democrats. Bourke Hickenlooper, the dyspeptic Iowa conservative who chaired the Senate’s Republican Policy Committee, and was thus a rival to Dirksen for his party’s ear, blasted Dirksen as a “softie.” He stalked out of the meeting, never to return to the group, and later declared that the minority leader “does not speak for the Senator from Iowa.” (Indeed, Dirksen did appear to be soft-soaping his conservative colleagues, and the liberal columnist Murray Kempton speculated in print that Dirksen “seems to be moving toward the passage of a strong civil rights bill by telling the conservatives it is weak.”)
The Republican liberals were not happy, either. Tom Kuchel told Stephen Horn that he was “pretty disgusted with the Dirksen slowdown.”
Lyndon Johnson was pretty disgusted with the sluggish pace, too. At his weekly meeting with the Democratic congressional leadership just before the working group’s meeting in Dirksen’s office, Johnson undertook to do a little lobbying for cloture. He had already been on the case for weeks. After the second-largest earthquake in recorded seismography devastated Alaska on Good Friday, March 27, Johnson put Air Force Two at the disposal of the state’s two Democratic senators, Ernest Gruening and E. K. “Bob” Bartlett, and then worked with Mike Mansfield to arrange for the Senate to pause long enough in the civil rights fight to approve tens of millions of dollars in emergency aid.
Now the president turned his attention to another small-state senator, Carl Hayden of Arizona, the eighty-six-year-old president pro tem of the Senate, who had never once voted for cloture. The issue was especially sensitive for him, because in 1911 the Senate had filibustered to prevent President William Howard Taft and a Republican-controlled House of Representatives from combining the Arizona and New Mexico territories into a single state, which would likely have elected two Republican senators, instead of two states that would likely have elected two Republicans and two Democrats. In that sense, Hayden owed his very office to the power of the filibuster.
But since 1947, as Johnson well knew, Hayden had had another pet cause: the Central Arizona Water Project, an effort to pump much-needed water from California to the rapidly growing areas around Phoenix and Tucson. Now, the president suggested ever so casually, if Hayden would support cloture, he would support the water project. Within days, the president received a memo from Secretary of the Interior Stewart Udall reporting that Hayden’s staff believed that Johnson’s “gambit on cloture” had been “very persuasive.”
And on Wednesday, May 6, Johnson went to work on another surprising target: Bourke Hickenlooper. Mansfield had let the White House know that Hickenlooper was irritated at the administration for rejecting his favored candidate as ambassador to the Philippines, and he suggested that the senator’s feelings might be assuaged by consulting him on Latin American affairs, a subject in which he had a strong interest. And if Hickenlooper voted for cloture he might well bring along such fellow midwestern conservatives as Karl Mundt of South Dakota, James Pearson of Kansas, and Roman Hruska and Carl Curtis of Nebraska. Johnson promptly dispatched Secretary of State Dean Rusk to talk to Hickenlooper.
* * *
BUT NOTHING DEMONSTRATED THE precarious position of the pro-civil-rights forces more dramatically than the vote that same Wednesday on Thruston Morton’s jury trial amendment. It was a near disaster that required four separate roll calls to settle, and it revealed the limits of Mike Mansfield’s easygoing, decentralized leadership style. The Senate chamber was packed that day for the first real action on H.R. 7152 in six weeks. The first vote on the Morton amendment was a 45 to 45 tie, and western Democrats and conservative Republicans joined with Russell and the southerners amid shouts of “No, no, no!” when the tally was announced. Because the amendment needed a clear majority to pass, it failed. But when Dirksen moved to table—that is, set aside—Mansfield’s routine motion to reconsider the amendment, the pro-civil-rights forces themselves failed, by a vote of 44 to 47. (That was partly because Senator Ted Moss, a Utah Democrat who was famous for being perpetually late, had missed the first vote altogether because the Democratic staff had failed to summon him from the cloakroom in time, so he voted against the tabling motion
out of spite.) Next came a vote on the motion to reconsider the amendment, giving Morton one more shot. That passed, 46 to 45. Only on the fourth and final vote was the amendment at last defeated for good, and then by only a single vote, 45 to 46. John Sherman Cooper’s jury trial amendment was then also defeated.
The New York Times called the vote on the Morton measure a “hairbreadth victory” for the pro-civil-rights forces. It was the lowest moment in their cause since the bill reached the Senate floor, and it “shook hell out of them,” Larry O’Brien would recall.
John Stewart sounded a glum note in his diary for the day. “It will be somewhat of a minor miracle if the pro-civil rights forces can get themselves back in order and push ahead with some degree of resolution and determination,” he wrote.
Emboldened by what had happened on the floor, Russell now announced that he could not allow a vote on the Mansfield-Dirksen jury trial amendment until at least the following week, because several southern senators would be joining President Johnson on a tour of poverty in Appalachia and the South. That same day, at a White House news conference, Johnson threatened to call Congress back into session after the summer political conventions if it had not wrapped up the civil rights debate and moved on to the rest of his pending social welfare agenda. “The people’s business must come first,” the president said, “and I think that the people of this country are entitled to have a vote on these important measures.”
The next morning, Thursday, May 7, Humphrey told the bipartisan floor leaders’ group that it would be “terribly important” to get a bigger vote on the Mansfield-Dirksen jury trial amendment than on the Morton amendment, to demonstrate that they might eventually muster the sixty-seven votes needed for cloture. “If the leaders, backed up by their deputies can’t produce, then we are in trouble,” he said. “If we can produce sixty-four votes, we are okay. But if we only secure forty-nine votes, then we have had it.”
For his part, Joe Rauh said that he and the Leadership Conference still opposed direct negotiations with Dirksen. Humphrey responded in exasperation. “Whatever we are doing has but one purpose,” he said. “And that is to secure a civil rights bill! Anybody who has an alternative, I’m glad to hear it. It is not pleasant for Tommy Kuchel and myself to have it appear that Dirksen is writing the ticket. I want the bill passed—the House-passed bill.” Then Humphrey turned the tables on Rauh. “The Leadership Conference should be out getting votes,” he said. “I saw a number of conservative Republicans taking on their own leader in the Republican cloakroom last evening. I’m not getting much help on cloture.”
The gloom of the civil rights forces was reflected in a wide-ranging telephone call Lyndon Johnson made to Senator Allen Ellender of Louisiana around this time. “Fifty days you and Dick Russell, fifty days you talked about the same bill, and you voted four times and you’re right back where you started!” the president told Ellender. “Y’all are making Humphrey and them look like they don’t know any parliamentary rules at all.” But Ellender replied that if Mansfield and Humphrey had backed the Morton amendment, instead of barely defeating it, they might have won support for cloture. And he acknowledged the broader reality now facing the southerners. “I believe there’s nothing that’s going to get this bill … I know damn well we can’t beat it,” Ellender told the president.
* * *
IN FACT, THE DRAFTING sessions in Dirksen’s office were making progress. At the morning session of Thursday, May 7, Dirksen wrestled with how to define discrimination that would be punishable under Title II, the public accommodations section. All along, Dirksen had been particularly concerned about how this section would be enforced, and worried that it could be used to harass individual business owners who might refuse to serve blacks with threats of court action, when a less confrontational approach might work just as well. For his part, Neal Kennedy believed there should be no need to prove that a restaurateur or hotel owner intended to discriminate. The discrimination should be self-evident, and the punishment self-enforcing, as with a speed limit. An offender should be easily judged to have exceeded the limit, or not.
“One of my roommates in law school had been a guy from south Georgia,” Kennedy would recall. “His father had died when he was very young, and his mother had brought him back to the family plantation to grow up. And at the plantation, of course, his only playmates were the children of the house staff, all black. And I guess they played together very well, except when they would go into Valdosta. He had to walk on one side of the road and they had to walk on the other. It was just custom. That figured a great deal in my thinking on the bill.”
The Justice Department lawyers approached the problem from a different perspective. Unless they had the authority to use court orders to force all the businesses in a given geographical area to desegregate (or cease discriminatory hiring practices under Title VII), they feared that there would be “strong competitive advantages for individual firms to hold out as long as possible,” as John Stewart would recall. Making a factual determination on a case-by-case basis would be impossibly burdensome. But how best to describe the sort of widespread conduct that would be punishable under the law?
That afternoon—in a meeting of the working group limited to staff members—Ken Teasdale of Mansfield’s office suggested using the words “pattern or practice” to describe what would constitute punishable discrimination. Neal Kennedy and his fellow Republicans liked that idea. The appeal of the phrase was that it could encompass varying interpretations.
“The Dirksen lawyers thought it shouldn’t be just one instance [of discrimination],” recalled Charles Ferris, another young lawyer on Mansfield’s staff who played a key role in the negotiations. “It was obvious they had in mind sequential actions by the same person before the act was violated,” instead of prevailing social customs “that in effect generated community support for the actions of individuals.” Ferris promptly telephoned Burke Marshall at the Justice Department, who also liked the language. “He thought that sounded great,” Ferris recalled, because the Justice Department was hoping for a way to sanction “communities that supported this type of behavior.” So the phrase “pattern or practice” was incorporated into both Title II and Title VII, to define the type of discrimination in public accommodations and employment that would be outlawed by the bill (with Dirksen’s caveat that employment discrimination would still have to be “willful”).
“‘Pattern or practice’ had a vagueness to it,” Ferris recalled. “It meant different things to different people.” The very vagueness of the phrase “was the beauty,” Ferris added, and it proved to be a crucial breakthrough.
But that was not immediately apparent at the time. That same evening Kuchel went to see Humphrey about the possibility of a cloture vote in a couple of weeks and found the majority whip “pretty discouraged.”
“Tommy, I’m talking out of both sides of my mouth,” Humphrey admitted, acknowledging that he had floated the idea of a cloture vote simply “to keep the civil rights groups in line.” In fact, Kuchel reported to Stephen Horn, Humphrey did not “think that we can secure any action before the first week in June.”
* * *
THE NEXT DAY, FRIDAY, May 8, in Atlanta on his southern tour, Lyndon Johnson made his most emphatic plea yet in favor of the civil rights bill. Winning front-page nationwide headlines, and favorable editorial comment, the president told a breakfast meeting of the Georgia State Legislature of his own family’s southern roots, but insisted, “My office is not a single trust for a single section or a single state. The people it serves occupy one continent. They are all ruled by one Constitution. As I am president of all the people, you are part of all the people. I speak to you not, therefore, as Georgians this morning, or as southerners, but as Americans.”
More than half a million people had lined the president’s motorcade route in Atlanta, and he was welcomed enthusiastically there and at a second stop in Gainesville, where forty thousand people filled a public square. Johnson quo
ted Atticus Haygood, the president of Emory College, who had declared in 1880, “We in the South have no divine call to stand eternal guard by the grave of dead issues.” Now, Johnson said, “because the Constitution requires it, because justice demands it, we must protect the constitutional rights of all our citizens regardless of race, religion or the color of their skin. For I would remind you that we are a very small minority, living in a world of three billion people, where we are outnumbered 17 to 1, and no one of us is fully free until all of us are fully free, and the rights of no single American are truly secure, until the rights of all Americans are secure.”
The icing on the cake was Lynda Byrd Johnson’s tribute to “my beloved friend Dick Russell, who helped raise me.” But Russell was not there to hear the praise. He was elsewhere in Atlanta, addressing a gathering of the Junior Chamber of Commerce, saying, “I must, in candor, tell you that we do not have the votes to prevent passage of the bill, and the outcome is uncertain.”
Back on Capitol Hill that morning, at the bipartisan floor leaders’ meeting, Nick Katzenbach summarized the state of negotiations with the Dirksen working group, predicting, “We will reach either impasse or agreement with Dirksen next week.” That afternoon, pro-civil-rights Republicans from both Houses met with Bill McCulloch to talk about whether liberal senators should try to offer strengthening amendments to the bill. As usual, McCulloch’s was the crucial voice in the room.
“I don’t believe a useful purpose is served to try to make the House-passed bill stronger,” he said. “The House-passed bill is a strong bill. Four months before it was passed, we could not have passed it.” When Jacob Javits asked about extending Title I’s voting rights provisions to state elections, and noted the difficulty for his fellow Republicans of allowing Dirksen’s amendments to be the only ones considered, McCulloch explained that he had given up on covering state elections in the House bill in the interest of “getting the show on the road.” He explained that he was not opposed to all amendments. “We aren’t that pig-headed,” he insisted. “We are talking that way—talk’s big—so we don’t have a wide hole in the dike.”
An Idea Whose Time Has Come: Two Presidents, Two Parties, and the Battle for the Civil Rights Act of 1964 Page 32