Doar, John

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Burke Marshall's Memorial
John Doart
This Tribute remembers and reflects upon the life of Burke Marshall,
who began his public career in February 1961 as Assistant Attorney
General, Civil Rights Division, Department of Justice.
Burke led the Division until January 1965. During that time, he guided
the country from a segregated, second-class system for black citizens
throughout the Solid South to the events at Selma in early 1965 that brought
the country the Voting Rights Act of 1965.
In May 1961, Burke advised Attorney General Robert Kennedy and
President John Kennedy during the constitutional crisis of the Freedom
Rides in Montgomery, Alabama. Experience gained during that crisis led to
the desegregation of interstate bus travel. Burke quickly came to understand
better than anyone the complex legal and procedural problems caused when
a state threatens to abandon its public safety responsibilities whenever black
citizens attempt to exercise their constitutional rights.
During May, Burke recommended to the Attorney General that the
Department file four voter discrimination suits in Mississippi. One of them
was against Walthall County, a back-country county lying along the
Mississippi-Louisiana border where there were no black citizens registered
to vote.
In early July 1961, Bob Moses, a field secretary for the Student
Nonviolent Coordinating Committee (SNCC), wrote a letter to Burke
Marshall saying that his organization intended to operate in Mississippi,
encouraging black citizens to register to vote. On July 13, the Attorney
General sent Burke a handwritten note, which read: "What do you intend to
do about Mississippi?"1
f Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, 1965-1967.
This Tribute is an edited version of oral remarks given at a memorial service for Burke Marshall
at the Yale Club of New York City on June 18, 2003.
1. Robert Kennedy's cryptic handwritten message to Burke Marshall was written on the
"Remarks" portion of a Cover Memorandum from John Doar, Civil Rights Division, Department
of Justice, to the Attorney General (July 10, 1961) (on file with author).
791
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The Yale Law Journal
On August 3, 1961, the Walthall voter discrimination suit was filed in
the federal district court for the Southern District of Mississippi. On August
18, John Hardy, a black college student, opened a voter education school in
Walthall County. Between August 30 and September 7, he brought eight
black residents to the courthouse, but the Registrar of Voters refused to
register any of them.
On Thursday, September 7, Hardy brought two elderly black residents
to the courthouse. One of them told John Wood, the Registrar, that she had
come to register to vote. Wood told her, "I am not registering anyone now.
You all have got me in court and I refuse to register anyone else until this
court [case] is cleared up." 2 Hardy stepped forward and told Wood his
name. Wood told Hardy he wanted to see him. Wood went to a desk and
pulled out a gun, pointed it at Hardy, and told him to get out. As Hardy was
leaving, Wood hit him on the head with the gun. Hardy, bleeding, stumbled
outside and tried to find a law enforcement officer. Hardy met the sheriff in
the street, but when he tried to make a complaint, the sheriff arrested him
for disturbing the peace and put him in jail.3
When Burke learned what had happened, he immediately sent two
Division lawyers to investigate. They were gone a week and returned on
September 16 with statements of what had happened at the courthouse.
They could not believe -how bad the conditions were for black citizens
along the Mississippi-Louisiana border. One of the lawyers made it clear
that fear among the black: citizens and the intimidation and corruption
among officials in Mississippi were so widespread that he believed it would
take a commitment of enormous resources by the. federal government even
to scratch the surface in. Mississippi. He questioned the willingness of the
Kennedy Administration to commit such resources.
The following Monday, I called a meeting of the Division lawyers. As
we reviewed what we had learned, Burke came in. He listened and was told
that Hardy's trial for- disturbing the peace was to occur the following
Friday. In spite of the well-established rule that federal courts do not enjoin
state criminal prosecutions, Burke immediately authorized the Division to
seek to enjoin the case against Hardy. With that action, Burke gained the
respect and admiration of every lawyer employed in the Division, and from
that day on the Division lawyers went all out in enforcing the existing laws
ensuring the right to vote..
We filed a complaint on Wednesday. On Thursday, Judge Harold Cox
refused to stay the criminal case. Burke directed us to file a notice of appeal
and to go to Judge Richard Rives of the U.S. Court of Appeals for the Fifth
Circuit in Montgomery. Late that night, Judge Rives persuaded the State of
2. United States v. Wood, 295 F.2d 772, 776 (5th Cir. 1961).
3. See id.
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Mississippi to defer the criminal case until he could convene a three-judge
court.
On October 3, Burke appeared before the court of appeals. He told the
court that it "is justified in assuming that the false prosecution of one
[N]egro, the first [N]egro who for many, many years had attempted to stir
up registration activity in Walthall County... would adversely affect the
registration activities in that county. ' 4 He reminded the court that "these
people live in an area where they are not used to the processes of the law,
where there are virtually no lawyers who will help to protect them.",5 The
Fifth Circuit stayed the criminal prosecution,6 and the word went out that
black citizens could rely on Burke Marshall.
In January 1962, the same court of appeals ordered University of
Mississippi officials to admit James Meredith. Writing for the court, Judge
Wisdom said: "A man should be able to find an education by taking the
broad highway. He should not have to take by-roads through the woods and
follow winding trails through sharp thickets .. and, after years of effort,
perhaps attain the threshold of his goal when he is past caring. ... ,7
By August 1962, it looked to a lot of people-but not to Burke
Marshall-that James Meredith was lost in a Mississippi thicket. In
September, Burke, on behalf of the United States, moved the Fifth Circuit
for an order allowing the United States to appear in the Meredith case. The
motion was granted, and immediately thereafter a three-judge panel of the
court of appeals-then sitting in Hattiesburg in a voter discrimination
contempt case-began to set aside the state court injunctions restraining
Meredith from entering the University and enjoined the state courts from
making findings that would render Meredith ineligible to attend.
On the same day, the University's board of trustees adopted a
resolution appointing Governor Ross Barnett as Registrar. When Meredith
tried to register, the governor rejected him.
On Monday, September 24, Chief Judge Tuttle convened an en banc
hearing of the court of appeals in New Orleans on the ground that there had
not been compliance with the court's earlier injunction. An array of
Mississippi lawyers tried to dissuade the court from acting. But at the end
of the day, the board of trustees agreed to comply with the order to admit
Meredith. At the same time, the court enjoined Governor Barnett from
interfering with that order. The next day, however, Governor Barnett again
refused to register Meredith. On the following day, the lieutenant governor
did the same.
4. Transcript of Oral Argument at 15, Wood (No. 19,237) (on file with author).
5. Id. at 16.
6. For a recitation of the litigation's history, see United States v. Mississippi, 339 F.2d 679
(5th Cir. 1964).
7. Meredith v. Fair, 298 F.2d 696, 703 (5th Cir. 1962).
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Doar
The Yale Law Journal
On Friday, September 28, the court of appeals was back for a second en
banc hearing. I wish you could have been there. There we were in the city
of New Orleans in a magnificent courtroom before eight of the nine judges
of the Court of Appeals for the old Fifth Circuit. Judge Tuttle presided.
Alongside were Judges Hutcheson, Rives, Jones, Brown, Wisdom, Gewin,
and Bell. Burke appeared for the United States.
Near the close of that second hearing, Chief Judge Tuttle spoke directly
to Burke. Judge Tuttle made it clear that the court had exercised all the
powers it possessed and he questioned Burke as to what the executive
branch intended to do. Think of it: In a split second, without rehearsal,
Burke was called upon to decide whether and how to commit the executive
branch to an unequivocal course of action. At that point, Burke had to
respond in a way that would best turn the State of Mississippi away from a
course of actual insurrection. When Burke spoke, he was succinct, clear,
and logical. His words reflected careful thought and extraordinary
judgment.
In essence, Burke said to the court:
" the United States had a responsibility to make every effort to enforce
the order of the court in a way least disruptive of the national
interest;
* when dealing with a state, the United States wanted to give the state
every opportunity to cooperate with the court and the federal
government in seeing that the court's orders were obeyed;
" despite every attempt to persuade the State of Mississippi to respect
and obey the court's order, so far the United States had failed and it
appeared that stronger efforts would have to be made to enforce the
order of the court;
" the order of the court would be enforced;
* there was no question that the executive branch would use whatever
force-physical force, if that was required;
" it would take a good many law enforcement officials to make the
order effective because Meredith not only had a right to be
registered, but also had a right to remain a student; and
" the task would be easier and the country better off if the United
States could bring Mississippi state officials and its governor to a
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recognition of their responsibilities to cooperate with instead of
oppose the federal government.
8
You all know what followed. In spite of considerable difficulty, but a
lot less difficulty than would have occurred without Burke's firmness and
judgment, Meredith was registered, enrolled, and attended the University of
Mississippi, and the certainty of total racial segregation in public education
in Mississippi was finally broken. Soon after that, Burke was in the middle
of the Birmingham crisis, where the confidence and respect both sides had
for Burke led to the beginning of a similarly successful outcome-the
passage of the Civil Rights Act of 1964.
What do I believe was Burke's philosophy as he carried out his
assignment as the head of the Civil Rights Division? No one could put it
better than Burke himself when, in 1970, he reflected on why he had been
such a strong advocate for the public accommodation section of the Civil
Rights Act of 1964:
I always thought-and I know Bob Kennedy always thought,
without, I think, any glimmer of a doubt-that just because of the
trust, you know, the need to keep the Negroes believing in their
government, we had to support them on that issue. At least morally,
it was right .... 9
From time to time, a young law student asks me whether he or she
should work at the Department of Justice. "By all means," I say. But I also
say, "Try to be there when the Attorney General is the brother of the
President." I wish I could also say, "Be there when a Burke Marshall is in
charge of the Civil Rights Division." But there is only going to be one
Burke Marshall, and we who knew him know how lucky we were.
You know, this is something, really something. I am extolling the life
of a man and he wasn't even a Supreme Court Justice, and after we are
gone and when the books are written, he may or may not be in them. And
yet, there was nobody more important than this quiet man to our history of
racial justice.
8. For a verbatim transcription of Burke Marshall's remarks, see Transcript of Oral Argument
at 77-80, Meredith v. Fair, No. 19,475 (5th Cir. argued Sept. 28, 1962) (en banc) (on file with
author).
9. Interview by Larry J. Hackman with Burke Marshall, in Bedford, N.Y. (Jan. 19-20, 1970)
(transcript on file with author).
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Doar
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Burke Marshall\u27s Memorial

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Burke Marshall\u27s Memorial

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