Principle, Conviction and Fate in the Remarkable Career of Judge Elbert Tuttle

By Bill Steverson

Vol. 10, No. 6, 1988, pp. 11-14

One of Elbert Tuttle's earliest memories, aside from the assassination of President McKinley in 1901, is of a black woman standing at a trolley stop outside his parents' house in Washington, D.C., near the turn of the century.

While he and his mother watched from their window, several trolleys, driven by white men, passed but failed to stop for the woman, although she signaled for each one.

Tuttle remembers that his mother became so angry that she finally went out to the woman, stood with her on the curb and waited for the next trolley. When it came, she signaled for it to stop, helped the black woman on board, and with a few choice words to the driver, made sure that the woman would be taken to her desired destination.

Much has been written about the brilliant judicial career of Elbert Tuttle, who with his fellow Fifth Circuit judges and a handful of equally strong District Court judges, made the federal courts the primary instrument of progress toward civil rights in the late 1950s and 1960s. Less well-known are Tuttle's youth and his law career prior to being appointed to the Fifth Circuit in 1954. Instances like those mentioned above, together with the vivid stories his mother told him about his grandfather's imprisonment in the infamous Andersonville Prison while a Union soldier during the Civil War (a horror that broke his grandfather's health and led to his early death), made a strong impression on young Tuttle, and perhaps provide clues to his later years as Senior Judge on the Eleventh Circuit Court of Appeals (formerly the Fifth Circuit).

Tuttle's is a career steeped in the post-Civil War ethic of the Republican Party and one that had some strange and coincidental turns of fate.

For example, had not Tuttle and his brother-in-law, William Sutherland, concluded that Atlanta was slightly cooler in the summer than Dallas, the two probably would have established their law practice in Texas rather than Georgia. And had Tuttle not lived several years of his youth in Hawaii during a time when virtually every white person in that future state embraced the Republican Party and its tariff protection for sugar growers, he perhaps would have never become a leader of the Republican Party in Georgia, thus setting the stage for President Eisenhower to appoint him to the federal bench.

And, though he now laughs at the story, Tuttle came close-very close-to going down in history as the person who first formally suggested the name of Richard Nixon as the Republican vice presidential nominee in 1952.

At 91, Tuttle is still active on the Eleventh Circuit Court of Appeals in Atlanta. Although his caseload has eased since he took Senior Judge status, he still shows little sign of retiring, despite the urgings of his wife, Sara, who has been at his side for almost seven decades.

Behind his desk are two autographed photographs of Dwight Eisenhower, and he makes no secret of his long admiration of the president who appointed him to the bench. "You know," he volunteers, "It was during Eisenhower's administration that the first Civil Rights bill was passed."

Born in California on July 17, 1897, Tuttle moved with his parents and older brother to Washington while still a small child. It was there, he says, that he first remembers his Mother's stories about the South, and of her father's inhumane treatment in a Confederate prison. "She was very bitter towards the South. She had strong feelings about it," he said.

After several years in Washington, his family moved to Hawaii, where his father worked for the Hawaii Sugar Planters' Association. He and his brother attended the multi-racial Punaho School (founded by missionaries). But aside from his contact with Hawaiian and Asian children in school, Tuttle remembers that his family, like all white families on the island, had little contact with the local population.

By the time he had finished high school, Tuttle had already decided on a career in law. He also remembers that he had become entrenched in the Republican Party.

"It was just natural," he says. On his Mother's side, the Republican Party was still the party of Lincoln and Emancipation. On his Father's side, it was the party of the Hawaii business community, and the fledgling statehood movement.

Tuttle attended Cornell University, and as an undergraduate he met William Sutherland, who was attending law school at Harvard. They decided that once they both finished law school, they would establish a practice together. Sutherland also became Tuttle's brother-in-law around that time.

After a short stint in the Army Air Force near the end of World War I, Tuttle and Sutherland were ready to set up


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their practice.

"We were looking for a city away from New York or Washington that was going to grow," he said, "a city that would have branch offices of the big Fortune 500 companies that would need legal services."

So they studied a map of the United States and narrowed their choices to Atlanta and Dallas. "Those were the days before air conditioning, and we decided that in the summer, Atlanta would probably be a little bit cooler than Dallas," he said. "so we chose Atlanta."

"I had absorbed a lot of my mother's feelings about how wrong the Southern states were to attempt to leave the Union and their support of slavery. I had a rather strong feeling about the treatment in the South of black people. That didn't cause me to feel that I didn't want to live in the South. As a matter of fact, I started fairly soon after I got there identifying myself with some efforts to ameliorate the conditions of the black people I ran into."

The first such experience, occurring soon after Tuttle's arrival in Atlanta, was frightening. With his service as an officer in the Army during World War I (and he would later have an heroic career in the Army during World War II), Tuttle applied for a commission in the Georgia National Guard, and was given the rank of major.

One night in 1931 he was telephoned by the State's Adjutant General about a "near riot" in Elbert County, Georgia. "He wanted me to come by his office and pick up some (tear) gas grenades and take them over there and see if I could stop this riot." He said, "I've called the Elbert County unit [of the National Guard] on active duty and they are trying to protect these people. The mob is overrunning the sheriff's house and thejail is upstairs over the sheriff's house.' I said, 'I've never seen a gas grenade.' He said, 'Well, you'll know how to handle it.'

"I came down (to the Atlanta Armory) and got a friend of mine. We went tearing over to Elbert County, about sixty five miles from here. We got in just at dusk, just as the sun went down. We pulled up in front of the sheriff's house and here was a mob yelling and hollering out in front of the cellar. Obviously they were trying to get in...I pulled the plug out of the gas grenade and threw it over from this automobile. I threw it in front of the mob and they backed up a little bit from the gas."

"We walked on into the house, my friend and I. I was in uniform. I went on to the back of the house and ran into some concrete stairs upstairs to the cell block. Just as I came up to it, there was a burst of machine gun fire that came down the stairs. I realized that one of our people was sitting up at the top of the stairs and he would turn loose a burst of machine gun fire every few minutes to keep the mob from coming.

"He'd saved these two black prisoners. They were after two prisoners. They didn't know which, if either of them, had committed the crime [the charge was rape of a white woman]. So we gradually tried to push the crowd out of the house. Finally I called for more help from Atlanta and they sent another company of National Guardsmen with rifles and bayonets attached. As we gradually pushed them out, we put these black prisoners in National Guard uniforms and got them in trucks and brought them back to Atlanta."

Tuttle is convinced that had his National Guard troops not hurried the two black prisoners away in the dark of the night, the mob would have lynched them. "You can't stop a mob with a machine gun. Everybody knows you are not going to turn a machine gun on the mob. Those were the only arms we had. When I got the company up there with rifles and bayonets on them, that was a whole lot different. No one wants to get in front of that bayonet. They gradually got the prisoners out. It was pretty violent."

But Tuttle's involvement that strange night with John Downer, the prisoner accused of rape, didn't end there. Downer was convicted and sentenced to death, but one day while walking down an hallway at the Fulton County Courthouse, Tuttle was approached by one of Downer's defense lawyers who asked him to help in filing an appeal.


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That appeal reached the Supreme Court and resulted in Downer being retried.

"I just recognized that this man had been convicted and sentenced to death without due process of law," he said. "There was no way you could justify it. As I say, in Georgia at that time if a black person was ever charged by a white woman of rape, no grand jury would ever fail to indict him. If he's indicted, no member of the jury would ever think of voting to acquit him. As long as a white woman was going to testify against him, he was as good as dead the minute he was arrested." The appeal resulted in a second trial, in which Downer was also found guilty. He was executed, although he protested his innocence to the end.

The appeal was based on the fact that the first trial had been conducted under mob control. While the Supreme Court had ruled several years earlier in the Leo Frank case that if a trial is held under the threat of mob violence, the defendant is denied due process, the Downer case was still viewed as an important step in the march towards civil rights in the courts for blacks.

Because of that trial, Tuttle says modestly, "I got a reputation of sorts around here. The black community apparently took some notice of it. Some of the black leaders recognized that here was a white lawyer in Atlanta who would be willing to fight the battle of an impoverished black field hand. Shortly after that I was asked to go on the Board of Trustees at Spellman College and then Morehouse and Atlanta University. I served on those boards somewhere in the middle of the Thirties right on down for about twenty years."

Two other cases also served notice that Elbert Tuttle wasn't afraid to take on the legal and social establishment when basic human rights were at stake.

In a case involving a Marine accused of passing counterfeit money, Tuttle filed an appeal that resulted in the Supreme Court ruling that an indigent accused of a federal felony is entitled to legal representation. That decision came more than a quarter century before other Supreme Court rulings applied the same rights to defendants in state courts.

In another case, Tuttle played an important role in getting the Supreme Court to uphold the First Amendment rights of a communist activist, Angelo Herndon. "He was a black communist who came down from New York to agitate in the South trying to persuade the subordinated black people to join the Communist Party and separate from the United States. He was making speeches around. He was reading some literature off the courthouse steps when he was arrested. He was arrested and convicted under a Georgia statute that says any person who directly or indirectly incites to insurrection shall be guilty (and sentenced) to death or not more than twenty years. Fortunately he wasn't sentenced to death, but he was sentenced to twenty years in a Georgia chain gang."

Two or three years later, Tuttle and his law partner, William Sutherland, joined New York lawyer Whitney North Seymour in filing an appeal to the Supreme Court, which ruled that the Georgia statute was unconstitutional.

"We got some adverse criticism for that," Tuttle said. "People said, Well, if he's a communist he ought to be in jail."

"As a matter of fact, it wasn't a crime to be a communist in those days. Congress tried to make it a crime, but they didn't succeed."

But even then, Tuttle said he didn't feel ostracized by Atlanta's white community. "I guess part of that was due to the fact that I was not a Southerner by birth or origin and I guess they didn't expect anything better from me."

Throughout his legal practice, Tuttle played increasingly important roles in the Republican Party.

"The Republican Party in those days consisted of three groups. One group was the black citizens who wanted to be active in politics, who could not participate in the Democratic Party because it was the white Democratic Party. By statute it was a white Democratic Party. They could not participate. Also they recognized the Republican Party as the party of Lincoln."

"Another group was those of us who had grown up in Republican parts of the country and other Republican principals who had moved to Atlanta. We continued to think that the Republican Party was certainly best in the State of Georgia."

"A third group was what we called the 'Post Office Republicans.' That was the group that when the national conventions were held would organize a group to go to the national convention. If their man was nominated and elected, then they would dispense with all the patronage. Those were the Post Office Republicans."

"I recognized the frailties of this kind of a situation because really we were trying to carry water on both shoulders. We were trying to create a new local party that was pure and undefiled in many ways. We knew full well what had happened once the Post Office Republicans prevailed. We knew that the great majority of the people of Georgia were in favor of white supremacy forever and didn't want to have anything to do with any black people who wanted to be active in politics. Their whole social and political philosophy was to keep the black people without a vote. That was what I came into."

In 1948, Tuttle had risen high enough within the Georgia Republican Party to be selected to attend the party's convention in Philadelphia, at which Thomas Dewey was nominated. And in 1952, he attended the Republican convention as chairman of the Fulton County delegation, and was firmly in the Eisenhower camp.

"While I didn't think that Eisenhower would be an ideal president because I didn't think he had a sufficient knowledge of American politics, I realized that most of his work as Supreme Commander had been political rather than military. After all, his main job was making people work together. I don't know if he ever heard a gun fired during the Second World War. I guess he did, but that wasn't his principal job."

Tuttle's leadership of the Fulton County delegation was instrumental in giving Eisenhower the majority of delegate votes from Georgia, and that was important to his nomination. "As a result, here I am as a federal judge," he laughs.

His role at the convention also got him chosen to be part of a small smoke-filled room crowd that selected Richard Nixon as Eisenhower's running mate.

"After Eisenhower was nominated, I think about twenty of us were called on to go into the smoke-filled room to pick


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the vice-president, and of course we all assumed that Eisenhower would make it known who he wanted."

"John Wisdom [a prominent Louisiana attorney who later served with Tuttle on the Fifth Circuit Court of Appeals, also playing a pivotal role during the court's civil rights period] and I were both included in that group of twenty because both of us had been leaders of delegations that were responsible for Eisenhower's nomination on the first ballot. As we went into the room General Lucius Clay, who was General Eisenhower's closest friend in the military tapped me on the shoulder and said, 'if nobody puts in the name of Richard Nixon, will you put his name in?' I said, 'Yes, I'll be glad to.' But fortunately I didn't have to. Someone else did."

In the general election, Tuttle was responsible for arranging an Eisenhower campaign visit to Atlanta. "Eisenhower made his first campaign speech in Hurt Park here in Atlanta. We had to hold it there because it would be against the law in Georgia for blacks and whites in the convention hall. So we had to have it outdoors. That was still a crime, a misdemeanor, for blacks and whites to meet together in Georgia."

"When Nixon ran for President, he sort of embraced the Southern strategy which involved the George Wallace strategy. He alienated all the blacks at that time. Some of the former Republicans have never voted again for a Republican candidate for the Presidency. I won't comment about my own position because I shouldn't. I, of course, took the veil in politics when I went on the court."

"The fact is that the New Deal was a great financial and economic benefit to the underprivileged in our society. The black communities in the South were large representatives in that underprivileged community. They would have been ungrateful if they hadn't recognized what the Democratic Party nationally had done for them economically. In spite of the fact that they might well have remembered that just a year or two or three before the Democratic Party in this state had excluded them."

After Eisenhower's election, Tuttle became general counsel for the Treasury Department, and stayed in that post until August 1954 when he joined the Fifth Circuit.

Did he know at that time that the Fifth Circuit Court would play such an important role in reshaping the civil and social structure of the South? "I couldn't help but know that," he said. "Of course, the Supreme Court had just decided the Brown case, the first Brown decision, and when I told my colleagues up there (in Washington) that I was going back to go on the Fifth Circuit they said, 'You haven't seen what the Supreme Court did recently.'"

"I said, 'Well, the Southern states will fall in line.' I believed it because I was aware of the fact that the people of the United States generally had accepted the Supreme Court's edicts as being binding on everybody and there wasn't much use in fighting against the odds. Once the Court had spoken, that was it."

An Alabama native, Bill Steverson is a writer and editor in Signal Mountain, Tenn.