Blacks to Gain Senate Seats In South Carolina

By Jack Bass

Vol. 5, No. 3, 1983, pp. 3-4

After years of resistance, the all-white South Carolina senate voted thirty to eight in February to adopt a single-member district reapportionment plan that virtually insures election of blacks in 1984 for the first time in almost a century. The senate-passed plan included seven black majority districts, four of them with fifty-nine percent or more black population.

“Never in our wildest dreams,” editorialized The State, South Carolina’s largest daily, “would we have imagined that the senate could handle such a sensitive issue that affects the political lives of each member with such dispatch.”

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Because of house amendments that increased the number of majority black districts from seven to nine and made several other changes, the final battle is still being fought. The issue seems headed for federal court, but it appears certain that blacks will serve for the first time since Bruce H. Williams of Georgetown and Thomas John Reynolds left the senate in 1888, two decades after a dozen black senators were elected at the beginning of Reconstruction. Blacks returned to the South Carolina house in 1970, where their number has now grown from three to twenty as a result of single-member districts.

In part, the senate action represented a response to last year’s bruising fight over congressional reapportionment. That ended with the federal courts permitting the splitting of county boundaries. The implications were clear for the senate. Also, last year’s lengthy wrangle left South Carolinians disgruntled over the legislature’s failure to put its houses in order.

In a larger sense, the senate consensus reflected a recognition of black political power as a fact of life in South Carolina, the result of years of effort in registering black voters in hundreds of communities. The NAACP and house black caucus leaders negotiated with and kept pressure on the senate for single member districts. They then pushed the house to go further in increasing the number of black majority districts.

Whatever plan finally emerges, the most visible all-white bastion of power in South Carolina will fall. In 1977, the U.S. Supreme Court frustrated black hopes when it ruled in Morris v. Gressette that the Justice Department’s failure to object to a discriminatory plan was not a proper matter for the courts to resolve. Several years later, Justice’s Civil Rights Division withdrew its support of an NAACP-backed suit after the Supreme Court ruled in Bolden v. City of Mobile that discriminatory “intent” must be proved.

In relenting before new realities, the senate’s action can be paired with South Carolina’s adoption of a higher education desegregation plan that was approved in record time by the federal government. A key player in both senate reapportionment and the desegregation plan was Senator L. Marion Gressette, the eighty-one year old patriarch of the senate. Gressette, who once chaired the state’s official school segregation committee, represents a constituency that is forty-five percent black and that now votes. He has become more sensitive and more accommodating. “I hope I’ve had enough sense to know you’re subject to change, to changing times,” he says.

Last fall, battle lines appeared to promise an all-out fight in the senate, whose forty-six members represent sixteen districts. The multi-member districts all have numbered posts, which means a black candidate must run head-on against a white opponent in at-large elections. In 1980, black Democrat William Saunders won nomination to a senate seat in Charleston County, but lost to a Republican in a county-wide general election characterized by racial bloc voting.

In last fall’s preliminary skirmishing, the state NAACP insisted it would be satisfied with nothing less than single-member districts. “The organization is putting its reputation on the line,” said state NAACP President William Gibson, a Greenville dentist.

At first, Gressette had insisted that counties should not be divided. He told a reporter that black majority districts had been discussed since 1967, but “you can’t spread thirty-one percent (black population) over forty-six counties if you’re going to keep county lines intact.” In January of this year, a Gressette-chaired subcommittee’ reported out a reapportionment plan that included twenty-five districts, thirteen of them single-member, five with black majorities.

The State, whose establishment editorial voice expressed moderation on both the desegregation plan and senate reapportionment, responded with an editorial headlined, “Single-Member Plan for Senate Is Best.”

The editorial stated, “A fairly drawn single-member plan that does not dilute black voting strength is less likely to be contested in court and is more likely to meet the requirements of the federal Voting Rights Act. Let’s do this one right the first time.”

Gressette didn’t have the votes in the full committee or in the senate to enact his subcommittee’s plan. Hospitalized for leg surgery, he missed the final vote but sent word that the senate should proceed without him after the plan left his home county, Calhoun, intact. Gressette’s decision not to be an obstructionist eased passage of the single-member reapportionment plan. In his absence, senate leadership fell to Thomas E. Smith of Florence, generally a progressive voice. Smith recognized that the federal court’s approval of splitting county lines in the congressional plan “made some people reasonable who hadn’t been reasonable.”

In December, popular senator Alex Sanders of Columbia removed a political roadblock when he announced that he would not seek reelection and expressed hope that this would make it easier to divide’ Richland County into four single-member districts that would insure election of a black senator. The move by Sanders, who since has become the leading candidate for chief judge on a new state appeals court, meant Richland could be split without pitting incumbents against each other.

In working out the final senate plan, Smith and others met informally with NAACP and house black caucus leaders, who had their own demographer. A compromise was reached which pits two incumbents against each other and places another in a fifty-nine percent black district. Passed in the senate, this plan went to the house where the black caucus prevailed in getting adopted a plan that would create nine, rather than seven, black population majority districts. But the house amendments radically changed the boundaries approved by the senate–boundaries that reflected delicate political compromise. Although black representation in the senate now seems assured, it appears that once again the federal courts may resolve South Carolina’s reapportionment dispute.

Jack Bass is director of American South Special Projects at the University of South Carolina and co-author, with Walter DeVries, of The Transformation of Southern Politics.

Affirming the Affirmative

By Jack Bass

Vol. 17, No. 1, 1995, pp. 1-3

In the middle of the current debate over affirmative action, a moment taken to revisit recent history turns out to be surprising, ironic, and instructive. Readers with long memories will recall that the concept of affirmative action emerged directly from the judicial crucible of civil rights, the old Fifth Circuit Court of Appeals, head- quartered in New Orleans. Before it was divided in 1980, the Fifth Circuit’s jurisdiction extended from Savannah to El Paso and covered six states of the Confederacy, including the Alabama and Mississippi that George Wallace and Ross Barnett governed.

From the bare bones of the Supreme Court’s Brown v. Board of Education decision, a handful of Southern judges — most of them Eisenhower Republicans — fleshed out a broad mandate for racial justice. Their court became the federal judiciary’s equivalent of the civil rights movement.

The scholar of the Fifth Circuit, Judge John Minor Wisdom, hammered out the Constitutional rationale for affirmative action in a 1967 school desegregation case, U.S. v. Jefferson. “The Constitution is both color-blind and color conscious,” Wisdom wrote. “To avoid conflict

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with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. The criterion is the relevancy of color to a legitimate government purpose.”

Judge Frank M. Johnson, another of those legendary Southern federal judges who shaped civil rights law, declared in a 1979 address to graduating law students at Boston University, “If the life of the law has been experience, then the law should be realistic enough to treat certain issues as special: as racism is special in American history. A judiciary that cannot declare that is of little value.”

To argue that affirmative action is somehow a perversion of civil rights laws, as do two self-described “staunch conservative” San Francisco-area academics who are leading a movement to place the issue of affirmative action on the ballot next year in California, amounts to historical nonsense. It would be analogous to making a scientific argument that changes in the atmosphere cause California earthquakes.

The objective of Glynn Custred, anthropologist, and Thomas Wood, philosopher, is to “restore true color-blind fairness in the United States.” The problem is that the United States has no history of true color-blind fairness.

In the Dred Scott case in 1857, only three years before the election of Abraham Lincoln, Chief Justice Roger Taney characterized even free blacks “as being of an inferior order, and altogether unfit to associate with he white race . . . so far inferior, that they had no rights which the white man was bound to respect.”

The concept that the Constitution is “color-blind,” an argument heard often these days from conservatives attacking affirmative action, comes from Justice John Marshall Harlan’s dissent in Plessy v. Ferguson. That 1896 case established the “separate but equal” doctrine, which provided the legal underpinning for government-imposed apartheid in the American South for the next six decades. The lone dissenter in the Plessy case, Justice Harlan won no support for his “color-blind” argument from his brethren on the Supreme Court, who represented the prevailing national attitude. So much for “restoring” color-blind fairness.

The Supreme Court struck clown “separate but equal” in 1954 with Brown, but a year later left implementation to the lower courts with little direction other than to proceed “with all deliberate speed.” How to reconstruct an entire social order became a problem for judges in the South to solve. That the courts successfully prevailed amounts to

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no less than Judicial Reconstruction, a more lasting achievement than the Congressional Reconstruction that followed the Civil War.

Judge Wisdom provided in Jefferson more than the intellectual rationale for a Constitutional basis to “undo the effects of past discrimination.” He also recognized “the fact that Negroes collectively are harmed” by segregation.

“The unmalleable fact transcending in importance the harm to individual Negro children,” Wisdom asserted, “is that the separate school system was an integral element in the Southern States’ general program to restrict Negroes as a class from participation in the life of the community, the affairs of the State, and the main-stream of American life: Negroes must keep their place.”

At the same time that Judge Wisdom was writing this 1967 opinion, Martin Luther King, Jr., was moving into Chicago and exposing racism in the North. It’s easy to forget that little more than two decades ago neo-Nazis demonstrated in suburbs of Chicago and the Ku Klux Klan held rallies in Boston.

In the current political battle over affirmative action, its defenders need to strengthen their case by engaging in straight talk. Because he claims the “bully pulpit” of the presidency, Bill Clinton clearly should be the logical leader.

President Clinton could remind the public that affirmative action developed from a recognition by the courts of the need to overcome the effects of past discrimination, that this remedy is necessary to establish a truly just society. The statistics are out there to demonstrate both that affirmative action has been successful (for example, the development of an expanded black middle class and the transformation of women in the work force) and that the job clearly isn’t over.

At the same time, it is necessary to acknowledge that affirmative action does involve sacrifice and pain — from beneficiaries who may feel stigmatized as well as white men who feel victimized, that its enforcement requires careful monitoring to prevent or eliminate abuses, and that it is unrealistic to expect to undo in a generation the effects of centuries of past discrimination.

Clinton also could create a Presidential Commission on National Unity, a measure that has received White House consideration. Such a Commission could draw attention to successful programs, including that of the military, which began to integrate well before the court mandate and which has developed an extensive body of research and training to deal with issues related to race.

The President could ex-plain that affirmative action did not emerge as a Democratic political initiative, but as a legal concept developed primarily by a group of widely honored Re-publican judges — that its history is bipartisan.

The American legacy of racial discrimination remains to be overcome. To defend affirmative action, presidential leadership needs to establish the moral high ground, explain the public interest in working to achieve a just society and make the case for persistence and patience.

Jack Bass is professor of journalism at the University of Mississippi and author of two books about Southern judges and civil rights: Unlikely Heroes and Taming the Storm, a biography of Judge Frank M. Johnson, Jr.

Justice Under Law

Reviewed by Jack Bass

Vol. 24, No. 1-2, 2002 pp. 21-22

Frank M. Johnson, Defending Constitutional Rights, Edited by Tony A. Freyer, Athens: University of Georgia Press, 2001.

In this slender volume, Tony Freyer characterizes Judge Frank M. Johnson, Jr. as “a unique figure in American history” and provides a useful collection of Johnson’s own articles, articulating his vision of justice based on law. This collection augments four biographies (one by this reviewer) of a federal trial judge unsurpassed in his impact for shaping Constitutional principles and expanding the civil rights of all Americans.

“Intellectual acuity conditioned by life experience shaped Johnson’s attitude toward the constitutional law governing race relations,” Freyer writes. Alabama Gov. George Wallace once declared that Johnson needed “a barbed wire enema.” In contrast, Martin Luther King, Jr. asserted that Johnson “gave true meaning to the word ‘justice.'” When Johnson died, his obituary in The New York Times filled an entire page.

Freyer, a University of Alabama law professor and legal historian, describes how as a trial judge from 1955 to 1979, Johnson “decided many of the most significant cases in American constitutional history.” Their social impact, such as his order allowing the dramatic march from Selma to Montgomery that created the climate in 1965 for passage of the Voting Rights Act, helped transform the American South.

The book begins with an introduction on “Johnson’s Unusual Origins and Early Career.” Nothing shaped him more than growing up in the Appalachian foothills of Winston County, the county in Alabama that, before the Civil War, grew the least amount of cotton and contained the fewest number of slaves. Unionists prevailed in the “free state of Winston,” where twice as many men–including two of Johnson’s great-grandfather’s brothers–fought for the United States Army as for the Confederacy. Johnson’s father was a “mountain Republican,” the only member of that party to serve in the 20th century Alabama legislature until the 1960s. He attended Republican national conventions and became friendly with such men as Herbert Brownell and Warren Burger, who in the Eisenhower Department of Justice would play the key roles in selecting federal judges.

What follows is the full transcript of the historically significant two-hour PBS interview of Johnson in 1980 by Bill Moyers and then eight articles on a range of subjects written by Johnson, each preceded by a historical overview by Freyer. He contends in his conclusion that Johnson’s rationale “for what others described as boundless judicial activism was fundamentally conservative.” Johnson’s core values, he says, rested “on basic equality under law and equality of opportunity.” For Johnson, the Constitution and its Bill of Rights created “a brand of individual liberty characterized by the fundamental right to personal security, opportunity, citizenship, and freedom of expression and conscience.”

The value of this book is to provide access to Frank Johnson expressing these core beliefs in his own words–the full expression of his philosophical analysis of what constitutes justice under law. The articles range over a quarter of a century, from 1966 on the roles of the attorney and the judiciary to the importance of equal access to justice and finally, in 1990, on “What is Right with America.”

One unfortunate omission is Johnson’s 1979 commencement speech at Boston University Law School, which was published in the Emory Law Journal in 1979 as “In Defense of Judicial Activism.” In this full response to critics such as Robert Bork, Johnson called for “an appreciation of the meaning of judicial activism.” He directly challenged the widely held legal doctrine of “neutral principles,” expressing his view that “the doctrine of neutral principles robs the Constitution of its vitality. It freezes constitutional thinking in the interests of theoretical purity. The Framers were pragmatic men and the Constitution is a practical blueprint: its genius lies in its generality. Perfect logical consistency has always given way to practical distinction. As well it should.

“If the law should beware unprincipled distinctions, it should also beware insufficient inconsistency. Religious differences, race differences, sex differences, age differences, and political differences are not the same. It is no mark of intellectual soundness to treat them as if they were. Moreover, if the life of the law has been experience, then the law should be realistic enough to treat certain issues as special: as racism is special in American history. A judiciary that cannot declare that is of little value.”

He emphasized, “It is one thing for a judge to adopt a theory of political morality because it is his own; it is another for him to exercise his judgment about what the political morality implied by the Constitution is.” The general language of the Constitution, the Bill of Rights, and the Civil War amendments (the Thirteenth, Fourteenth, and Fifteenth amendments) he asserted, appeals “not to a particular conception of necessity or reason or equality but to the concepts themselves.” (Italics in original)

For readers interested in engaging a great mind at work, Defending Constitutional Rights provides an opportunity to develop an understanding of what is required to create justice under law.

Dr. Jack Bass is professor of humanities and social sciences at the College of Charleston. He is the author of Taming the Storm: The Life and Times of Judge Frank M. Johnson, Jr., and the South’s Fight over Civil Rights, which won the 1994 Robert F. Kennedy Book Award grand prize, and author or co-author of six other books about civil rights and political change in the 20th century South.