Book Talk | Judge Richard Gergel’s “Unexampled Courage”

Book Talk | Judge Richard Gergel’s “Unexampled Courage”

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KENNETH MACK: Thank
you all for coming. We’re very pleased today to
have Judge Richard Gergel of the United States District
Court for the District of South Carolina here to present on
his wonderful and well-reviewed book– I say that because in part
I was one of the reviewers– Unexampled Courage, the
Blinding of Sergeant Isaac Woodard and the Knighting–
sorry, actually, it’s changed. RICHARD GERGEL: It’s changed. KENNETH MACK: Yes. –and the Awakening of President
Harry S. Truman and Judge J. Waties Waring. Actually, I’m going to
mispronounce Waties Waring– RICHARD GERGEL: Waties. KENNETH MACK: Waties. I’ve been hearing about Judge
Waring for very many decades, and I still
mispronounce his name. We’re very pleased to
have him here with us. He’s going to give us
a talk about his book, and then we’ll have a short
discussion among the panelists, and then we’ll open
it all up to you. Our panelists are the
distinguished Randall Kennedy, who is the Michael R. Klein
professor here at Harvard Law School. Like Professor Tushnet, who I’m
going to introduce in a second, he was a former law
clerk to Justice Thurgood Marshall, who features a bit
in the story told in the book. A distinguished scholar of race
and law, among other subjects. To my immediate left is
Professor Mark Tushnet, the William Nelson
Cromwell Professor of Law here at Harvard Law School. Also a distinguished
scholar of both race in the law, legal history,
constitutional law, and just about everything else. I’m Kenneth Mack. I’m the Lawrence
D. Biele professor of law and affiliate
professor of history here at Harvard Law School. I did not clerk for
Justice Marshall, but I clerked for his
principal assistant, who later became federal
district judge, Robert Carter. So we’re going to
have Judge Gergel do a presentation on his
book, which I understand includes PowerPoint slides. RICHARD GERGEL: Correct. KENNETH MACK: Then we’re going
to have a brief response. And if we take it in
order, Professor Kennedy, Professor Tushnet, and myself. Little discussion
among the panelists, but we hope to open it up
to questions from all of you before we’re done. So– RICHARD GERGEL: Y’all won’t be
able to see the slides here, unfortunately. KENNETH MACK: Yeah, I may
turn around, so I can do this. RICHARD GERGEL: Well it
is great to be in Boston and to be among so many friends. A couple of years ago, the
Legal Services Corporation Board met in my courtroom
in Charleston. And I gave a little
brief introduction and I shared a little
bit about the place where everyone was sitting. And I told them about the
importance of Judge J. Waties Waring and that the road to
Brown v. Board of Education had started in this courtroom. And I told some anecdotes
about Judge Waring and Justice Marshall. And afterwards, I was approached
by a woman I did not know, who told me, I’ve heard
some of the same stories. And I said, oh really? She said, yes, I clerked
for Justice Marshall. And that’s where
I met Dean Minow. And she said, well you must
come to Harvard Law School when you finish your book. And so here I am. Randy Kennedy and I share the
same mentor, United States District Judge, Matthew
Perry, and Judge Perry would spend a great deal of
time with each of us telling us we needed to know the other one. And we did. So I met Randy 20
years ago, maybe? We’ve been on all kinds of
programs together for years. Randy came to South Carolina and
gave a lecture on segregation in Greenville, South
Carolina, handing out segregation ordinances
that everyone in that room has never forgotten. It was really an extraordinary,
extraordinary lecture. So it is really an
honor to be here. And of course, Mr. Mack did a
wonderful review of my book– a really thoughtful review– in The Washington Post,
and Professor Kennedy did one in The
American Prospect, all raising just
fantastic questions. And it’s just what
you love as an author, is someone who raises great
questions from the materials you have and make
you think differently and originally about things. Well let me tell you the
story of Unexampled Courage. As the clock struck 7:00
PM on August 14, 1945, President Harry S. Truman
assembled the White House press corps in the Oval Office. The ebullient president,
standing behind his desk, informed the reporters that
earlier that day, the Japanese government had unconditionally
surrendered, bringing an end at last to World War II. The reporters spontaneously
burst into applause and then raced to
the door to share this historic announcement
with the rest of the nation. Thousands gathered
in Lafayette Square across from the White
House to celebrate, and soon there were calls– we want Truman, we want Truman. The president came onto the
north portico of the White House to make a few remarks. “This is a great day for free
governments of the world,” Truman announced. “This is a day that
fascism and police government ceases in the world. The great task ahead is
to restore peace and bring free government to the world.” But beneath the veneer of
America’s grand self image, as the bastion of freedom and
liberty, was a stark reality. African-Americans residing
in the old Confederacy lived in a twilight world
between slavery and freedom. They no longer had masters
but they did not enjoy the rights of a free people. Black Southerners were routinely
denied the right to vote, segregated physically from
the dominant white society as a matter of law, and
relegated to the margins of American prosperity. Racial violence and
lynchings festered just beneath the surface, ready
to explode at any moment. And this particular image
was called the lynching flag. It flew from the national
office of the NAACP each morning after a
lynching in America. And tragically, in the first
half of the 20th century, that was a common
sight in Manhattan outside the NAACP’s office. Black Americans living in
other regions of the country had their own challenges. As the nearly 900,000 black
veterans returned home at the end of World
War II, they quickly realized that
little had changed, and they began demanding
their rightful place in America’s free government. Seen from today’s perspective,
the American triumph over Jim Crow segregation
and disenfranchisement might seem to have
been inevitable, the collapse of morally
indefensible practices wholly inconsistent with the
United States Constitution. But in 1945, with black
southerners almost entirely disenfranchised, white-dominated
southern state governments resolutely committed
to the racial status quo, and the federal government
largely a passive bystander, there was no obvious
path to resolving this great American dilemma. Something had to be done,
but what and by whom? My book, Unexampled
Courage, details the long-overlooked story
of the beating and blinding of Sergeant Isaac Woodard,
a battlefield-decorated African-American soldier, by the
police chief of Batesburg South Carolina on the day of his
discharge from the military and while still in uniform. And the transformative impact
of this incident on President Harry S. Truman and United
States District Judge, J. Waties Waring of Charleston,
horrified and inspired by the injustice of
this brutal event, President Truman would
launch a civil rights program culminating in the
ending of segregation in the armed forces
of the United States. And Judge Waring would
issue landmark civil rights decisions, including
his great 1951 dissent in Briggs v. Elliott
that would become the model for Brown
v. Board of Education just three years later. Late on the afternoon
of February 12, 1946, Isaac Woodard boarded
a Greyhound bus in Augusta, Georgia
after discharge hours earlier from nearby Camp
Gordon, and was traveling to Columbia, South
Carolina and then to his hometown of
Winnsboro, where he was to rendezvous
with his wife after several years
of separation. During one of the frequent
stops along the way– the bus would be going
through rural South Carolina, and as it hit each
town, it would stop to pick up or
drop off passengers– Woodard approached
the white bus driver and asked if he could step
off to relieve himself. At that time, interstate
buses did not have restrooms, and Greyhound drivers
were instructed to accommodate such requests
from the passengers. Instead, the bus driver
cursed Woodard, telling him, “I ain’t got time to
wait,” and ordered him to return to his seat
at the back of the bus. To the apparent astonishment
of the bus driver, Woodard cursed him back
and told him, “Talk to me like I’m talking to you. I am a man, just like you.” The stunned bus driver
told Woodard to go ahead, but at the next bus
stop, in Batesburg, South Carolina, the bus
driver, now no longer concerned with his
schedule, departed his bus in search of a police officer
to have Woodard removed from the bus and arrested. Woodard soon found
himself confronted by the police chief of
Batesburg, Lynwood Shull, who responded to Woodard’s effort to
explain himself by striking him over the head with his
blackjack and escorting Woodard off to the town jail. On the way, Woodard
was repeatedly beaten with Shull’s
blackjack, ultimately driving the end of the baton
into both of Woodard’s eyes. The sergeant was then thrown
in a semi-conscious state into the jail cell
for the night, and when he woke
the next morning, he realized he could not see. Later that morning, Woodard
was taken to the town court and convicted of drunk
and disorderly conduct. Accounts of the Woodard
beating and blinding were reported in the
black press and received nationwide attention
when Orson Welles focused on the incident in his
weekly program on ABC Radio. Mass meetings were organized
in black communities across the nation to
protest Woodard’s treatment, and a benefit concert
for Sergeant Woodard in New York City, hosted by
world-heavyweight champion, Joe Lewis, and featuring such
luminaries as Count Basie, Cab Calloway, and Nat King Cole,
played to a sold-out audience of 23,000. Of course, in this
image, on the left side is Joe Lewis and in the
center is Sergeant Woodard. Meanwhile, other black veterans
returning to their homes in the rural South
confronted other incidents of racial violence, including
racially-inspired murders. No state prosecuted
those involved in any of these racial incidents. Of September 19,
1946, a delegation of civil rights leaders met with
President Truman in the White House, deeply distressed
by this wave of violence being inflicted
against returning African-American veterans. Prior to the
meeting, Truman staff advised him that
despite his desire to respond to the concerns
of civil rights leaders, there was little he
could do as president to address these incidents. Criminal prosecutions by
the federal government for civil rights
violations in the south were fraught with problems,
most notably all-white juries, deeply unsympathetic
to civil rights cases. And of course, the reason
there were all-white juries was that jury lists were
pulled from voter lists and African-Americans
were disenfranchised. Further, Congress
was under the control of powerful southern
committee chairs who were determined to block even
the most modest civil rights legislation,
including laws making lynching a federal crime. As the meeting opened,
civil rights leaders urged President Truman
to call Congress back into session to address
the spreading violence against black veterans. The president expressed
sympathy but lamented there was little he could do
because there was essentially no public support for new
civil rights legislation. Leading the group was Walter
White, the executive secretary of the NAACP, and in this
image, he is to the right side, in our image looking at
it, to President Truman. He was then the
executive secretary of the NAACP, probably the
most important civil rights leader of his day, and was
Truman’s most loyal supporter in the civil rights community. It was apparent to White
that the president did not appreciate the gravity
of the situation. White changed the
discussion by sharing with President Truman in detail
the binding of Isaac Woodard. As the tragic story
unfolded, Truman sat riveted, and became visibly
agitated with the idea that a uniformed and
decorated American soldier had been so cruelly treated. Abandoning the
advice of his staff, Truman declared, “My
God, I had no idea it was as terrible as that. We have got to do something.” The following morning, Truman
wrote his Attorney General, Tom Clarke, and shared
with him the story of the blinding
of Isaac Woodard, noting that the police
officer had deliberately put out the sergeant’s eyes. Truman made it clear that
the time for federal action had now arrived. He further indicated
he intended to appoint the first presidential
committee on civil rights to propose a new agenda
to address America’s serious racial problems. Three business days
after Truman’s letter was delivered to the
attorney general, the Department of Justice
announced the prosecution of Batesburg police
chief, Lynwood Shull, in the federal district
court in South Carolina for the deprivation of the
civil rights of Isaac Woodard. Meanwhile, the
Department of Justice prepared the necessary
documents to organize the first presidential
committee on civil rights. Truman charged his committee
in its first meeting on January 15, 1947 to
be bold and to attack the root causes of America’s
deep-seated racial problems. He held the civil rights
committee’s first meeting in the cabinet room to emphasize
the importance of its work. In less than a year, the
Truman Civil Rights Committee issued a landmark report to
secure these rights, which graphically detailed America’s
profound racial challenges and proposed groundbreaking
policies and legislation, including the ending of
segregation in the Armed Forces of the United States. Truman fully embraced the
proposals of his Civil Rights Committee, and on July 26, 1948,
in the midst of his re-election campaign, he issued
Executive Order 9981, mandating the integration
of the armed forces. The successful desegregation
of the military marked the beginning of the
end of Jim Crow in America. And my son, in looking
at this particular image, pointed out– he says, “Dad,
that’s an interesting headline, but look at the one
on the lower right. “Possy Bent on Lynching
Searches Woods for Prey.” And my response was, “Son
that was America in 1947.” The Justice Department’s efforts
to prosecute Lynwood Shull in the federal district
court in Columbia, South Carolina produced
in the short term a predictable result– an all-white jury
acquitted the police chief after only 28 minutes
of deliberations. The case was tried before United
States District Judge J. Waties Waring, a Charleston
patrician whose father was a Confederate veteran
and multiple generations of ancestors were slaveholders. Prior to the trial,
Judge Waring was skeptical about the federal
government’s prosecution of a local police
officer, but his views changed when he heard the
highly credible testimony of the blinded
sergeant who described his arrest and vicious beating
at the hands of Chief Shull. As Shull’s supporters
cheered his acquittal, few noticed that Judge
Waring’s wife, Elizabeth, who had attended the trial,
left the courtroom in tears. Judge Waring joins his
wife later that evening and both were traumatized by
the trial over which he had just presided. The Shull trial forced
the judge and his wife to stare directly into
the southern racial abyss, a view which would forever
transform both of them. Waring later described the Shull
trial as his baptism of fire and his Michigan-born wife’s
baptism in racial prejudice. The Warings returned
home to Charleston after the Shull trial,
resolved to learn more about the issues
of race injustice, which the Warings had
previously thought little about. These were not
subjects that could be openly discussed among white
Charlestonians of that era. The Warings decided to undertake
their own self-directed study. Each evening after
dinner, Elizabeth would read a portion
of a selected work, told out loud, to
allow the judge to rest his eyes after a day of
handling his judicial duties. The couple would then
discuss what they had read, often while driving around
Charleston in the evening, a favorite pastime. And people have asked me,
my god, What did they read? I said, well, W. J.
Cash, Mind of the south. Gunnar Myrdal, The
American Dilemma. And American Dilemma
is a fascinating book. It was a Carnegie Foundation
study on race in America. It’s 1,400 pages long. Gunnar Myrdal would later
be awarded the Nobel Prize. It is an extraordinary book. I didn’t understand
that transformation until I read all 1,400 pages. Once the Warings had
finished American Dilemma, there was no turning back. As Judge Waring’s new views
on race and justice emerged, George Elmore, a
black businessman, filed suit in federal
district court in Columbia in 1947, challenging the South
Carolina Democratic party’s all-white primary. South Carolina political leaders
were united in their resolve to preserve the white primary. Notwithstanding a clear
Supreme Court precedent, Smith v. Allwright,
they made any decision holding the white
primaries unconstitutional. Judge Waring understood that
any decision recognizing the right of minority
citizens to vote would produce an intensely
hostile and possibly violent public reaction,
but Waring concluded that his choice was, quote,
“either to be entirely governed by the doctrine
of white supremacy or to be a federal judge
and decide the law.” On July 12, 1947, Judge
Waring issued his decision in Elmore v. Rice, declaring the
white primary unconstitutional. Waring ended his order
by declaring, quote, “It is time for South
Carolina to rejoin the Union and to adopt the American
way of conducting elections.” The groundbreaking nature
of the Elmore decision was immediately appreciated by
the leadership of the NAACP. In a private note to
Thurgood Marshall, William Hastie, who
would later be appointed the first black federal
judge in American history, stated, “I have read the South
Carolina opinion three times and I still don’t believe it. In many respects, Thurgood,
I think it is your greatest legal achievement.” But the segregationists
would not give up. Soon, a new party rule was
adopted, allowing blacks to vote in the party primary
so long as they pledged support for racial segregation. A new suit was
filed– surprise– and on July 16,
1948, Judge Waring summoned all 93 members of the
party’s executive committee to his Charleston courtroom
for an emergency hearing. Waring denounced their efforts
to defy his earlier ruling and explained that a federal
judge faced with contempt had two choices– a fine or a jail sentence. He wanted those
present to know– these were the 93 probably
most powerful political leaders of the state of South Carolina. He told those present, if there
were any future violations, there would be no fines. Thereafter, African-Americans
by the thousands began registering to
vote in South Carolina. The response of South Carolina’s
white supremacy was thunderous. Death threats, written
and oral, were constant. A cross was burned at
the Waring’s residence and bricks were thrown through
their living room window. Time magazine described Waring
as the man they loved to hate, but also noted he was proving
to be a person of cool courage. If the purpose of the
unprecedented vilification of Waring was intended to
cower him, it did not work. Instead, he continued
his study and reflection on race injustice in
America and became convinced that the foundation of
Jim Crow segregation, the Supreme Court’s 1896
decision in Plessy v. Ferguson, was legally, historically,
and morally wrong. Waring, then
approaching 70 years of age and likely
retirement, resolved to play a role in overturning
the separate but equal doctrine. Waring developed a plan to place
a school desegregation case onto the docket of the
United States Supreme Court, firmly convinced that
a majority of justices would overturn Plessy if they
directly confronted the issue. He noted on his
trial docket a case from Clarendon County, South
Carolina, Briggs v. Elliott, which sought to equalize the
facilities in the district’s profoundly unequal black
and white schools– a classic Plessy
v. Ferguson claim. When the plaintiff’s
attorney, Thurgood Marshall, appeared at the
Charleston courthouse– I mean, this is an image of
Justice Marshall coming off the train in Charleston
to try Briggs v. Elliott. It was taken by a then
14-year-old young man who would become the greatest
documenter of South Carolina civil rights movement,
Cecil Williams. He was 14, he was a
little camera bug, and a family friend
drove him from Orangeburg to Charleston train station
to see the great Thurgood Marshall. He had one flash
left in his camera and he got that picture of
Thurgood Marshall coming off the train. Marshall would later tell him
it was his favorite picture of himself. When the plaintiff’s
attorney, Thurgood Marshall, appeared at the Charleston
courthouse on November 17, 1950 for a pre-trial
conference for his case to begin in just
a few days, he was advised the judge wanted
to see him privately. I am sure he thought,
what have I done? Right? And after being ushered into
the judge’s office and the door closed behind him,
Waring told Marshall he did not want to try another
separate but equal case. Bring me a frontal
attack on segregation. Marshall responded pretty coolly
to this rather extraordinary confrontation. Judge, this is on our agenda,
it’s just not tonight. We don’t think this is the case. We don’t think this is the time. Waring was unpersuaded,
telling Marshall Thurgood, this is the case. This is the time. Marshall urged the judge
to think practically, noting that any decision
by him overturning Plessy would be reversed by the Fourth
Circuit Court of Appeals. Waring explains that since
the challenge to public school segregation contested the
constitutionality of a state law, he would request
the appointment of a three-judge panel
in which he would sit. Marshall responded
the plaintiffs would then lose two to one. Waring agreed but noted that any
appeal from a three-judge panel went directly to the
United States Supreme Court and that’s where you want to be. Waring’s plan was bold, even
brilliant, but conflicted with the highly-successful
litigation strategy of the NAACP that carefully
built one legal precedent on top of another, never trying
to get ahead of the United States Supreme Court. A few minutes after
this dramatic encounter, Waring convened the
pre-trial conference in Briggs and publicly
pressed Marshall on whether he was prepared to
challenge the constitutionality of public school segregation. Marshall stated that
he was and agreed to dismiss his pending
suit and refile Briggs v. Elliott as
the first frontal attack on public school segregation
in American history. Although Marshall agreed to
dismiss his original complaint and file a new
suit, he had needed to obtain the consent
of his clients to this change in
legal strategy. Marshall had real concern
about the safety of his clients if they took such a
bold step in their rural and impoverished
community, and he sent his top
assistant, Bob Carter, to Summerton to discuss this
change in legal strategy. I don’t know–
Mr. Mack, you ever talk to Judge Carter
about this trip? He described it to me. It was quite a trip. Judge Carter told the
large crowd assembled at St. Mark’s
Church in Summerton that those agreeing
to join the new suit could expect to lose
their jobs and suffer other forms of
retaliation, perhaps even violent retaliation. He told them that there was
no shame or embarrassment if any plaintiffs felt they
could not participate further, but that the NAACP felt the
time had come to confront segregation head-on. An elderly gentleman at the back
of the church rose and stated, quote, “We were wondering
how long it would take you lawyers to figure
this out,” end quote. With only two exceptions, all of
the original Briggs plaintiffs chose to join the new suit. The newly-filed
Briggs case was tried in the Charleston federal
courthouse in May 1951 before the three-judge panel
that included Judge Waring. In prior years, civil
rights cases in the south were sparsely attended by
members of the black community, less they be identified
as members of the NAACP or challengers to the
racial status quo. But on the morning
of May 28, 1951, as the sun rose in
Charleston, African-Americans lined up at the
federal courthouse and down Broad Street as
far as the eye could see, hoping to observe what
many thought might be the most important
case in American history. Judge Waring observed
the massive crowd from his office window,
later describing the scene as a breath of freedom. And my dear friend
Jonathan Green, a great South Carolina artist,
has painted this picture called “Breath of
Freedom,” depicting the opening day of the
trial of Briggs v. Elliott. And if you notice in
the window, Judge Waring is staring out of the window,
looking out to the crowd. And I will tell you, a
conversation with Judge Carter, he told me that as they
were walking in that day and they were walking through
this massive crowd, he says, Thurgood, I have never had a
crowd like this at a trial. And we’re walking
through and he says that Marshall turned to him
and said, Bob, it’s all over. He says, Thurgood, what
are you talking about? And he said, they’re
not scared anymore. Those in attendance
in the courtroom were not disappointed by
the performance of Thurgood Marshall and his trial team. The trial included the
testimony of Dr. Kenneth Clark, a social psychologist who had
done groundbreaking research on the effects of segregation
on black children, using black and white dolls. The crowd was also
entertained by Marshall’s devastating cross-examination of
the state’s key witness, whose last name ironically was Crow. Many joked that Thurgood
Marshall, quote, “sure loves to eat Crow,” and
one observer, referencing the state’s renowned
lead attorney, Bob Figg, quote, “Mr. Figg got his law
degree when he finished school, but he just got his
baccalaureate address from Thurgood Marshall.” As Waring predicted, the
majority of the panel ruled that South Carolina’s law
mandating segregated schools were lawful under
the Plessy doctrine, but Waring, fully aware he was
writing a dissent for the ages, wrote an eloquent and brilliant
attack on the foundations of segregation in America. He concluded by finding, quote,
“Segregation and education can never produce
equality and it is an evil that must be eradicated. Segregation and education
adopted and practiced in the state of South
Carolina must go and go now. Segregation is per
se inequality,” written in June 1951. Waring also praised the
Briggs plaintiffs, who he was fully aware had
suffered severe retaliation for participating in the
case, noting that, quote, “They have shown unexampled
courage in bringing and presenting this
cause in the face of the long-established
an age old way of life which the state
of South Carolina has adopted and
practiced and lived in since and as a result of the
institution of human slavery.” Waring’s dissent was the first
challenge to public school segregation by a federal judge
since the Plessy decision 55 years earlier. Some have asked how Judge
Waring, a United States district judge, could
presume to overrule an existing United
States Supreme Court precedent, Plessy v. Ferguson. Judge Waring did not
believe he was doing that. The year prior to
his great dissent, the Supreme Court decided
three important civil rights cases, one involving the
separate but not equal law school in Texas,
Sweatt v. Painter. Another involving
a graduate student at the University of
Oklahoma, George McLaurin, and that was an exhibit
in the court record. There is Mr. McLaurin. He was allowed to be
a graduate student but he had to sit
outside the classroom. Tell me that isn’t
a stunning image. And the third involving
a challenge to segregated dining cars
in interstate trains, Henderson v. the United States. In all three, the plaintiffs
won in unanimous decisions. Some commentators thought
these three civil rights victories represented
a further whittling away of the Plessy doctrine. But Judge Waring,
reading them together, collectively, concluded they
stood for the proposition that separate could
never be equal. Waring viewed his dissent
as stating explicitly what he believed the
Supreme Court had already ruled implicitly. In early 1952, some six months
after his great dissent, Waring announced his retirement
as a United States district judge, and he moved
to New York City. Waring followed closely later
school desegregation cases from Virginia,
Delaware, and Kansas, all which were consolidated
before the United States Supreme Court, with Briggs,
under the title Brown v. Board of Education. And all the other school
desegregation cases, involving 14 separate
state and federal judges, only Waties Waring had concluded
that public school segregation, even if the
facilities were equal, violated the 14th Amendment of
the United States Constitution. On May 17, 1954,
the Supreme Court handed down unanimously
its landmark decision in Brown v. Board of Education. The court explicitly cast aside
the separate but equal doctrine and adopted the per se rule that
all government-mandated public school segregation
was unconstitutional, first advanced by Waring
and his Briggs dissent. Judge Waring was
always philosophical but what he described as
the unpleasant repercussions of his civil rights decisions. In an oral history
late in life, Waring observed, “Taking the
whole thing in balance, I think I’m enormously
fortunate, because you don’t often in life have the
opportunity to do something you really think is good. I think a great stroke of
fortune came down my alley. The other penalties
don’t amount to anything. They’re offset by
what I think is a really important contribution
to American history.” And a little over a year ago, as
I completed Unexampled Courage, I visited the town of Batesburg
and retraced the fateful path of Isaac Woodard, from
the bus stop where he was removed from the
Greyhound bus and arrested, to the storefront
around the corner where he was beaten and blinded,
and to the location up the street where the town
jail and court once stood. Joining me on this solemn walk
was the Mayor of Batesburg and the town
attorney, both of whom had only recently learned of
the Woodard incident, from me. On June 1, 2018,
the town attorney filed a motion to
reopen the case of The Town of Batesburg
v. Isaac Woodard to overturn his
criminal conviction. The motion was
granted, expunging Woodard’s conviction,
and several weeks ago, the town of Batesburg– Leesville, as it is now known,
dedicated a historic marker candidly telling the story of
the blinding of Isaac Woodard. Members of Sergeant Woodard’s
family traveled from New York for this ceremony,
and the mayor publicly apologized on behalf of the
town for the tragic events of that fateful evening,
February 12, 1946. Unexampled Courage
is a story that deserves to be told,
with all of its pathos, its brutality,
and its redemption of the American
system of justice. Thank you very much. [APPLAUSE] KENNETH MACK: OK, we’re going
to have brief responses, first by my colleague,
Randall Kennedy. RANDALL KENNEDY: Just
three brief points. First, this is a wonderful book. The presentation was wonderful. Instructive. Inspiring. It definitely deserves a wide
audience and I hope you get it. Second, the book, in a
way, is not surprising, because for a good long
while now, Judge Gergel and his partner in scholarship,
his wonderful wife, Belinda, have been working
throughout the south but particularly
in South Carolina to do something that
Martin Luther King, Jr. called for in
his great “Letter from a Birmingham Jail.” In the “Letter from a Birmingham
Jail,” Martin Luther King, Jr. said that in the future,
he hoped that the real history of the south would be written. And he talked about– he said,
I hope that in the future, the real heroes of
American history will be brought
to the foreground. And for a good long while now,
at least a couple of decades, this has been going
on, especially in South Carolina,
my home state. The Gergels helped
bring to the fore a person who had been
completely forgotten to history, Jonathan Jasper Wright. Jonathan Jasper Wright was
the first black justice on a state Supreme Court. He had been completely
lost to history. And through the
Gergels’ efforts, there was a wonderful
weekend symposium, and a portrait was done and
hangs now in the South Carolina Supreme Court. A few years later,
attention was paid– actually, Judge Gergel
mentioned this– Matthew Perry. Now for people who grew
up in South Carolina in the late 1950s
and early 1960s, everybody knew Matthew Perry. I mean, if you were going
to go to a civil rights demonstration, the one thing
that you were told was, take Matthew Perry’s
telephone number with you, because when you were jailed– and this happened
to my cousins– when you were jailed, this
was the telephone call. Matthew Perry was the Thurgood
Marshall of the Palmetto State. And Matthew Perry
then later became the first black federal
judge in South Carolina. And now, in Columbia,
South Carolina, one can go to the
Matthew Perry Courthouse. And again, the Gergels,
wonderful weekend. Every political figure. The leading figures of
the bar for two days celebrated Matthew
Perry’s career, and it was a really
wonderful thing because Matthew Perry
was still alive and could enjoy this celebration. And so now, with
this latest book, we have another example of the
true heroes of the south being brought to the fore. And one of the things that
I like most about the book, and it’s really accentuated by
the title, Unexampled Courage– so one of the things that Judge
Gergel emphasizes throughout the book is that,
yes, Waties Waring– Waties Waring really is probably
the principle hero of the book, but one thing that
Judge Gergel points out is, Waties Waring would never
have been able to do anything. He would not have been
able to do the good that he did without people
pressing from below. And that is a theme that is
brought forth over and over. You know, Isaac Woodard. The NAACP. In Briggs v. Elliot, Harry
Briggs fired from his job. His wife is– RICHARD GERGEL: He’s a
gas station attendant. RANDALL KENNEDY: He’s a
gas station attendant. His wife’s a maid. She’s fired. All these people are fired. But they are the ones that
enable the good judges to do what they did. Now last point. And here, I guess,
I think, Judge, that your reading of Brown
is a wee bit generous. It steps forward in a great
way with its conclusion, but largely through
your book, the next time I teach Brown v.
Board of Education, I’m going to do something
I’ve never done before, and I think your book’s
given me an idea. Compare Brown v.
Board of Education to Judge Waring’s dissent
in Briggs v. Elliott. In Brown v. Board of
Education, frankly, if you didn’t know
much about America, you might think, well what
are they arguing about? I mean, you know,
segregation is not shown to be the social
evil that it was. But Judge Waring really unveils
it and it’s much more candid. It really puts it out there. RICHARD GERGEL:
And more passion. RANDALL KENNEDY: There’s
much more passion. It’s much more candid. Now, again, there was a reason
for Chief Justice Warren writing his opinion in
the diffident, opaque way that it’s written, but I do
think it’s to bring that home. I think you can compare,
like I say, Chief Justice– RICHARD GERGEL: And remedy. And remedy. RANDALL KENNEDY:
The remedy as well. I mean, Waring really
puts it out there in a way that it’s still, frankly– RICHARD GERGEL: Segregation
was ended in now. No all-deliberate speed. RANDALL KENNEDY: Absolutely. So any event, it’s
a wonderful book. Congratulations. RICHARD GERGEL: Thank you. [APPLAUSE] MARK TUSHNET: So thank you
for a terrific talk and book. First of all, I
have to apologize. I have to leave before the
event is over because I have to teach at one o’clock. Second, if I had
more time, I would spend a little on what I
think of as the peculiarities of Charleston’s
white elite and how that played into the
transformation of Judge Waring. The book describes his
marriage, his remarriage, and the effect of
the remarriage, not just of his wife on him but
on their place in Charleston. And I think that had,
as I understand it, had some significant
effect on sort of the way he thought about the world. He was no longer deeply embedded
in the Charleston [INAUDIBLE].. RICHARD GERGEL: He
was an outsider. He had become an outsider. MARK TUSHNET: He had
become an outsider. But he had become
an outsider because of his marriage, or
divorce and remarriage, not because of anything
that had to do with– OK. But what I wanted to focus on
is Isaac Woodard as exemplary. So, in World War I, Randolph
Bourne an anti-war liberal, wrote, War is the
Health of the State. And we often think of lines
like, during war time, law is silent, and
things like that. But one of the
things that came out of World War II and the
experience of black soldiers and sailors was an
enhanced confidence in their understanding
of their place as citizens of
the United States. So what happened to Woodard,
as Gergel mentioned, happened to lots of
returning black veterans. In Tennessee, a returning black
veteran took his mother’s radio to a repair shop to be repaired,
and he wasn’t treated well and there was a
civic disturbance that ultimately led to a large
number of trials of blacks. And Marshall went
to represent them. And I won’t go into
the details of it. Marshall almost got lynched
himself as part of this story. So the effect of the war– sorry, the NAACP had a slogan,
“Double V for Victory, victory abroad and victory at home.” The effect of the war was the
Japanese internment, but also– phrasing this is
quite difficult. Not the empowerment
of black veterans but the increasing confidence
that black veterans had– RICHARD GERGEL:
And consciousness. MARK TUSHNET:
–and consciousness of themselves as
people who had done what citizens were
supposed to do, which is defend the country. And they came back and said,
I have behaved like a citizen, now treat me like one. And that happened all over the
country, all over the south, and had a significant
effect, I think, on the renewal or the increased
force of the civil rights movement from below. And so I started
with Bourne and War is the Health of the State
as an anti-war person, and yet, there is something
about civic participation in war that has important
implications for expansions of understandings of
what citizenship is. And sort of my footnote on
this, and I’ll end on this, is, remember last
election cycle? All the women veterans who
were running on the ground– not on the ground, but in
part because they had served the country in
war and now wanted to continue their service
as elected representatives. RANDALL KENNEDY: I’d
also like to thank Judge Gergel for
a wonderful book, as I said in my
Washington Post review. I’d like to just
elaborate on a theme that I developed in that review. I agree with Professor Kennedy. This is a history that has to
be recovered and remembered and re-remembered. You know, if you were
involved in civil rights and you are a certain age,
the name Waties Waring would have been familiar to you. By the time I was
growing up, Waties Waring was not a name that
was familiar to people who had that orientation. I learned the name when I
read the book Simple Justice when I was in law school. We have Richard
Kluger’s epic history of the Brown litigation. So history should be
recovered and remembered and re-remembered. But I do want to develop a
theme that the book recounts a redemptive history. You know, Waties
Waring and his wife, Elizabeth, are in
some measure redeemed. You know, this terrible thing
happens to Isaac Woodard, and we shouldn’t lose his
story in the narrative. And if we have
time for questions, I’m sure a lot of you
will ask, you know, what happened to Isaac Woodard? A terrible thing happened
to Isaac Woodard. Terrible things happened to
many, many African-Americans under this system of Jim
Crow, although the story told in the book is properly
the story of redemption– of the people like
Waties Waring. Of people like Thurgood
Marshall, who initially files a school equalization
suit, but because of this chain of
events, winds up refiling it as part of the
suit sort of consolidated into Brown v.
Board of Education. The redemption of course
of Harry S. Truman and the redemption of America. You know, you could tell a
much more difficult story out of this narrative, and it would
be a story of state violence. And that story, we’re
still in the middle of it. South Carolina, of course, was
the scene of rampant violence, obviously stretching back to
slavery, but for our purposes, stretching back to the
Reconstruction period. There’s a wonderful book called
The Great South Carolina Ku Klux Klan Trials. It’s about the trials
of the Ku Klux Klan and Reconstruction
era of South Carolina. There were so many
murders and so much violence against
African-Americans that the effort to
prosecute it simply overwhelmed the federal
courts in South Carolina. There’s a continuing
theme, right? The continuing effort to
make the federal government effective in redeeming
African-Americans and the country
from state violence. When I call it state violence,
there are not private actors. You know, kind of
the local governments and the state-level government
is deeply implicated in it. And if I want to tell
the longer story, I would tell it
through the stories of people like “Pitchfork”
Ben Tillman– a famous South Carolina politician in
the early 20th century who made his career as a populist. But to be a populist
in South Carolina was to be violently anti-black,
as “Pitchfork” Ben Tillman was. I would tell it through
the stories of people like Strom Thurmond, a longtime
South Carolina senator who just passed away a few years ago. Strom Thurmond of course
becomes a national figure because he’s the
Dixiecrat candidate for president in 1948. But the chain of events that
set in motion his candidacy is this, right? So the story that
Judge Gergel tells is the story of the redemption
of people like Harry Truman, but of course there was
a reaction to Truman’s civil rights policies in 1948. And the leader of that reaction
was South Carolina politician, Strom Thurmond, who
remained in politics and who remained, I would
say, largely unredeemed. Unlike George
Wallace, who reversed his own earlier
endorsement of segregation, who was praised by
African-Americans by the time of his death. Strom Thurmond remained
largely unredeemed. And I could go on, through the
Orangeburg Massacre of 1968, where state highway
patrolman shot 27 people at the
historically-black South Carolina State University. Following civil
rights demonstrations, there was yet another
federal prosecution, which was also unsuccessful. I might note the 2015
shooting of Walter Scott by a police officer in– I think it’s North Charleston. One of the shootings
that ignited the Black Lives Matter movement. There was a state indictment
and prosecution of Scott which produced a hung jury of a
subsequent federal prosecution. RICHARD GERGEL:
In my courthouse. KENNETH MACK: Yes, in
the federal courthouse. And resulted in a guilty plea. So there is this continuing
story of violence and violent resistance
to black equality, and South Carolina
as the center– or not the center, a
center of the story. And I would say that story– I would be the
last person to say, so you don’t mean me to say
that nothing has changed. I would be the last person to
say that nothing has changed. You know, my
relatives are actually from South Carolina myself. I mean, I remember going
there when I was a kid, and talking to my uncles
and them telling me about what Jim Crow was. Right? My uncle telling me,
you know, you could not disrespect a white man. And the uncle I sat
with when I was a kid was somebody who now lived
in a world in which he could hold his head up high. So we do live in a
radically different world than that world, but there
are also themes that– RICHARD GERGEL: But the
world is not dead yet. KENNETH MACK: Yes, there
are themes that persist. And I like to think
that we are in– the theme should be
redemption in some measure, but of course there are other
more challenging themes, and I think the
story of which theme is the longer-term one or
the one we should emphasize remains unresolved. RICHARD GERGEL: But
I will mention this, and I told Mr. Mack this. Last night, I was on a program
with Chief Justice Ralph Gants with the
Massachusetts Supreme Court. And he came across– very similar to what
you just said, Mr. Mack. He said that what
we were looking at was state-sponsored terrorism. And he and I then
engaged in a discussion about what this meant. And it wasn’t just that in many
of these horrible incidents in the ’40s and ’50s and
earlier, law enforcement officers were often either
acquiescent or complicit, but then there were
not prosecutions, which is a form of acquiescence
itself to that violence. And Mr. Mack and I have
had an email exchange. We’ve been talking
ever since the review, which he raised this issue. And there is a narrative, and I
will tell you that in 1947, we had the lynching of Willie
Earl in Greenville, South Carolina, of which there
was an attempt by the state to prosecute. Many of the defendants
had admitted their guilt and had confessed their
guilt. They were acquitted. I’ve never figured out how that
could happen but there it was. And then contrast that to
the shooting of Walter Scott. And the reason he pled guilty
before my colleague, David Norton, was that he was
going to be found guilty. The FBI had done a
great investigation. There was no question he
was going to be convicted and he pled in the
face of near certainty. He didn’t want to
get a life sentence. So there is a difference. I mean, both of them
involve state violence by law enforcement officers,
but there is a difference. But for those who say that
world is gone forever, that simply isn’t true. It isn’t. We’ve suppressed it,
and what we’ve learned is that every time
we seem to make a significant advance
in civil rights, there is a response, right? There’s a backlash. And we have to be ever
vigilant because we need to keep pushing
the ball forward, because if we rest
on our laurels, the response of
those resisting will be allowed to rise back up. KENNETH MACK: So thank you. We have about four minutes
left and you’ve got, like, wonderful questions, I’m sure. So questions from the audience. AUDIENCE: [INAUDIBLE]
because I am one of the children who
was the first to walk the front line desegregating
the schools in the south. And when I saw the image
of the students sitting outside the classroom,
I went through that. And I had teachers
calling me negro in class, and I had children
spitting on me, but even when I was sitting
on that outside perimeter, I was thankful. I said, as long as I can
hear it, I can learn it. And it’s taken me
a long time to be able to talk about
it without crying, and then to have you talk about
it today brought the tears, but I saw something
in that school. I know that a lot
of people say what you went through
was racism, but what I saw was something different. And that’s getting to what
you were saying about there’s a broader issue of violence. I saw violence in that school. Many will say it was
racism and I say, no. The same teacher who was
calling me negro in class was also being violent
to little white children. And the same little
white children who were spitting on me
in class and on the bus were also nasty to
little white children. But that made me
see that there had to be something bigger,
something deeper than racism. And that is the journey
that I’ve been on. From there, I went on and I was
graduated first in my class out of Indiana University. First out of 5,500,
Phi Theta Kappa. I went on to Oxford, got my
first law degree, and then to Columbia and got
the second law degree. And now what I’m
doing is a segment– I taught at
Stanford, by the way. What I’m doing now
is investigating the historical root
cause of violence by and against lawyers,
judges, and legislators. And you are right when you
say that there is violence within the politicians,
within legislators, that is done with impunity. And I’m focusing on 1790 to 1890
and I’m showing the violence. But I’m also going the
next step and saying, what was the root cause? And that root cause at that
period is applicable now, and only by identifying and
correcting the root cause can we get beyond the violence. RICHARD GERGEL: What’s
very interesting– I think one of the
transformative influences of watching that trial of
the acquittal of Lynwood Shull for the Warings was it
forced them to realize that under these practices which
they had largely kind of ignored was violence. AUDIENCE: Yeah. RICHARD GERGEL: That in the end,
it was enforced by violence. And that was the most
horrifying thing to them, that this was an
evil institution, and that violence sparked
the incident referred to in Columbia, Tennessee,
where the Navy Seal is– there is intent to lynch
him because he challenges the treatment of his mother. Of all these instances, violence
was just around the corner. And that’s what I thought
was important to remind people of that lynching flag. That was not a happened
day, one day it was out. It was out constantly,
because underlying Jim Crow was extreme violence. That’s how it was enforced. KENNETH MACK: So we are
actually at one o’clock and I know a lot of
people have to go, but two things we should know
before we thank Judge Gergel, he’s going to be signing
books right outside. So I know a lot of you probably
have more questions for him, things you want to
talk about with him, so he’s going to
be here for a bit. And second, thank Judge
Gergel, our panelists. Professor Tushnet
unfortunately had to leave because he’s
teaching class right now. And thank you all for coming. AUDIENCE: Thank you. [APPLAUSE]

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