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September|October 2003
Marshall's Law By Diane McWhorter
Passing Fancy By Daniel J. Sharfstein
Cleaning House By Eric Pape

Marshall's Law

Burke Marshall deserves credit for ensuring the passage of Kennedy's Civil Rights Act of 1964, but the reticent antitrust lawyer never took it.

By Diane McWhorter

AMONG THE TESTIMONIALS AT BURKE MARSHALL'S MEMORIAL SERVICE in New York City last June, the most frequently repeated story described his interview in 1960 with Attorney General Robert Kennedy for the position of chief of the Justice Department's Civil Rights Division. Basically, both men said nothing, awkwardly. The happy ending was that Marshall, then a 38-year-old corporate lawyer, not only got the job, but became, according to a Justice colleague, the one man Robert Kennedy looked upon as a mentor, though Marshall was just three years older.

It was Marshall who converted many of the civil rights movement's goals into policy, earning him a front-page obituary in The New York Times, but even that homage could not quite characterize what he had actually done. Marshall's aversion to self-congratulation was legendary. Or, as The Times put it in 1963: "He wholly lacks the extroverted football-player qualities said to be admired by the Kennedys."

Which was one of his qualifications for his hot seat of a job. The Kennedys had rejected the obvious choice (future senator Harris Wofford) because he was too identified with the civil rights movement, instead picking Marshall partly because his background was in antitrust law. Known in the Justice Department as "best lawyer, brightest human being," Marshall was the last person one would suspect of being a civil rights crusader, which, to most Southerners, meant either a starry-eyed do-gooder or a wild-eyed left-winger. As one of his informants in Alabama noted approvingly, Marshall looked more like someone who had lost his glasses.

As a journalist, I was not particularly charmed by the idea of Marshall's fugitive personality. Journalism thrives on conflict and color. Yet there Marshall was at the center of a story I was writing: 1963, the Year of Birmingham, when my Alabama hometown became the host of a social revolution and Marshall one of its principal white brokers ("a white civil rights leader," as Vernon Jordan said at the memorial service). All hell had broken loose on the streets of Birmingham that May, when City Commissioner Bull Connor unleashed his fire hoses and police dogs on the Rev. Martin Luther King Jr.'s child demonstrators. Up until then, the Kennedy Administration had kept its distance from King's mass protests against segregation in the "Johannesburg of America," but finally it had to do something. Marshall was by that time so indispensable a member of Justice's civil rights team (nicknamed "the riot squad") that he had reputedly been passed over for a Supreme Court appointment, which instead went to the deputy attorney general, Byron White, who was merely the "second-best lawyer, second-brightest human being."

On May 4, Robert Kennedy dispatched Marshall to Birmingham after the following discussion:

Kennedy: "Do you think you should go down?"
Marshall: "I think I could."
Kennedy: "See you later."

MY BOOK CARRY ME HOME traces the history of that cataclysmic year, when what President Kennedy called, with understatement, "the events of Birmingham"—those sensational mass demonstrations—led to the end of apartheid in this country. Birmingham had seemed the inevitable destination of the civil rights movement. As King liked to point out, it was "the most segregated city in America." That distinction was bound up in its identity as the heavy-manufacturing center of the South. The cornerstone of the city's industrial profits was segregation, which kept the workforce divided, the unions off-balance, and wages depressed. The business establishment that had long maintained this status quo would be Marshall's challenge in Birmingham.

By the time I met Marshall in the course of my research, I had spent so much time with his papers at the Kennedy Library in Boston that the staff there greeted me by saying, "Here comes Miss Burke Marshall!" I had come to know his cramped handwriting and his gift for pithy analysis. I had inferred his wry sense of humor from the reciprocal drollness of his handwritten exchanges with Robert Kennedy.

I had also come to decipher the subtle signs of heroism—the collect calls Marshall took from the embattled stalwarts of the Student Nonviolent Coordinating Committee from their siege state in Mississippi, as well as the complementary middle-of-the-night calls from FBI agents in the South. J. Edgar Hoover had maliciously instructed his men to telephone Marshall over every petty fracas after he complained about the FBI's refusal to share intelligence on civil rights cases.

What I mainly needed to talk to Marshall about was a meeting of Birmingham's civic elite that had taken place on May 7 to address the crisis brought on by King's mass marches and Bull Connor's brute retaliation. The local whites targeted by the demonstrations were the downtown department store owners, whose white-only lunch counters and restroom facilities were the major targets for desegregation. Those retailers were loath to make any kind of deal with King; if they "capitulated," their stores would be vulnerable to reprisals from the city's white majority, which was still very much committed to preserving segregation. What's more, because most of "the merchants" (as they were called) were Jewish and had therefore been excluded from the inner sanctum of local commerce, they resisted making any move without the go-ahead from the "power structure." In other words, the store owners would be damned if they were going to take the fall for the members of the establishment most responsible for the mess they were in.

Upon arriving in Birmingham, Marshall began to play intermediary among the parties on all sides of the stalemate. Once he heard the retailers' position, he orchestrated the May 7 meeting to get the Chamber of Commerce behind a settlement with King. In the early journalistic and scholarly accounts of the Year of Birmingham, the meeting would be billed as a historic turning point, in which the city's notoriously retrogressive leadership took its first affirmative step toward democracy. According to conventional wisdom, the city fathers had agreed to enter into a deal with King, in effect surrendering the Bastille of segregation. The implication was that a vote had been taken.

Since there were some 80 people there, I figured I would have no problem reconstructing the event, which promised to be a major scene in my book. Three years into my research, however, that meeting still looked like a photographic negative, gaping blanks against a murky background. Some of the supposed participants that I interviewed couldn't even remember whether they had attended, and those who could did not recall much of what had been said. I began to worry that the only ones who considered the meeting historic were people who hadn't actually been there.

ON A BRIGHT OCTOBER DAY IN 1985, I drove out to Marshall's house in Connecticut. He was now teaching at the Yale Law School after a stint as general counsel for IBM. I noticed as he welcomed me that he was wearing sneakers, Bobby-style.

The first thing Marshall recalled about that landmark meeting—smiling in rueful amusement—was the epithet given the steel industrialists who reigned over Birmingham: "Big Mules." That had struck him as ineffably perfect. But true to laconic form, he said he couldn't remember much else about the meeting, either what had been said or whether any consensus was reached.

He did remember telling the assembled men that King would stop the marches if they would desegregate the lunch counters and restrooms at the downtown department stores and promote a few Negroes out of the janitorial basement to clerical jobs. "You mean that's all they want?" a dumbfounded local judge had asked. Summing up the triviality of the concessions being asked of the men at the meeting, Marshall said to me: "It wasn't like they were going to integrate the country club."

I spent a couple of hours in Marshall's sunny living room asking about that meeting in 30 different ways. His wife, Violet, brought sandwiches and tea. Most of my sources had seemed eager to offer up some story to posterity, but Marshall was serenely reticent. It was as if he was so totally confident in any given moment that he felt no need to revisit an event once it had passed. (Robert Kennedy had his own, more impetuous version of that quality: Once something was over, it was over—no postmortems.) By journalistic standards, the interview had felt like a failure. I would not understand until later that Marshall was letting me in on a little secret about how history is made: through a series of anticlimaxes.

AS I PERSEVERED ON MY QUEST to get to the bottom of the "historic" meeting, things only got curiouser. Joe Dolan, a Justice Department lawyer who had accompanied Marshall to Birmingham (and was as exuberantly sardonic as Marshall was reserved), conjured up a whole new Marshall, one who had spoken up at the meeting with a passion and directness stunning from someone with his reputation for Socratic irony. The sermon that Marshall had delivered on the First Amendment—saying evenly that what the marchers were demonstrating for, in his view, was basic constitutional rights—practically brought tears to Dolan's eyes. Dolan, moreover, did remember the outcome of the meeting: No agreement was reached.

I finally had an explanation for the Birmingham businessmen's hazy sense that there was nothing particularly notable about the meeting. Despite what "history" said, nothing had happened. Yet right after the meeting Marshall went to work with a subcommittee of whites and a subcommittee of blacks to hammer out a settlement, as though the Chamber of Commerce had given its blessing to desegregation. I was developing a strong suspicion that Marshall had maneuvered the "power structure" of Birmingham into a deal with King that they hadn't even been aware they were making.

In 1988, Taylor Branch's King biography, Parting the Waters, came out with evidence supporting my theory that the meeting had been a sort of smokescreen for Marshall to do his magic behind the scenes. According to notes from a call Marshall had made to the White House after the Chamber of Commerce powwow, he told President Kennedy personally, "The meeting worked. Now if it will only hold, we're over the worst."

Worked, eh? I called Marshall again, now seven years after our first meeting. In the spring of 1992, we met in New York. I laid out my hypothesis about the meeting: Though the impression had been encouraged that the businessmen had endorsed the subcommittee of whites that would negotiate with King, the meeting had produced no such thing. Instead of a group hug of reformed segregationists, there had really been a consensus of only one: A single city father—Sidney Smyer, Birmingham's biggest real estate developer—had stood at that meeting and agreed to put his name on the agreement, to spare the rest of his timid peers. "I'm a segregationist," he said, "but I'm not a damn fool." That was the extent of the commitment Marshall got from the "power structure" to lend its imprimatur to the desegregation of the downtown department stores.

In his best noncommittal lawyerly way, Marshall said he did remember telling the president that the meeting had "worked," which did, yes, suggest that he had informed him that he had some ideas about what it might achieve. He left me, the jury, to draw my own conclusion, as if I had not already done so.

The meeting did "work," though to say that Marshall pulled a fast one doesn't quite do justice to his grace. The negotiations that he initiated and pushed to a resolution removed the ugliest barriers of segregation from the department stores. As a result, King was able to declare a great victory for the civil rights movement in Birmingham, an achievement seconded by the Nobel Peace Prize Committee. On the word of the lone civic-minded businessman Marshall had finessed into doing his duty, the citadel of segregation fell.

The upshot of the accords in Birmingham was swift and dramatic. On June 11, the night after Wallace stood in the schoolhouse door, President Kennedy went on national television and, citing those "events of Birmingham," announced in uncharacteristically evangelical language that he was sending up to Congress a sweeping civil rights bill, the first serious legislation of the kind since Reconstruction. "We are confronted primarily with a moral issue," he said. "It is as old as the Scriptures and is as clear as the American Constitution." The remainder of his presidency hung in the balance of that bill, throwing unrelated programs into jeopardy. Kennedy often had second thoughts about that speech and tweaked his brother for making him give it. Robert Kennedy would reply that "it was Burke Marshall who had gotten both of us in trouble." Marshall's comment on the speech was effusive, by his standards: "I thought it was great. He put the problem very well."

The president did not live to sign his and Marshall's handiwork, the Civil Rights Act of 1964, which wiped out legal segregation in this country. With or without them, there's no doubt that apartheid would have eventually been abolished in this country. But I am convinced that John Kennedy would not have put his own effectiveness as president on the line when he did if Marshall hadn't given him the confidence to do so, with his peculiar combination of adamant integrity and disinterested poise. In so many—or so few— circumspect words, he had let the Kennedys know that basically they had no choice.

In our last conversation in March 2001, not long before my book came out, Marshall did allow that the Civil Rights Act of 1964—one of the most magnificent pieces of legislation in American history—"wasn't nothing." No, as legacies go, it was more than enough.

Diane McWhorter's book about Birmingham, Carry Me Home, won the 2002 Pulitzer Prize for General Nonfiction.

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