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

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.

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 

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.
          
        
