Subject: Re: [EL] Breyer doesn't like Ike?
From: Abigail Thernstrom
Date: 12/2/2010, 9:39 PM
To: Brian Landsberg
CC: "Smith, Brad" <BSmith@law.capital.edu>, Election Law <election-law@mailman.lls.edu>


Context is important here.  

In 1954, only half of the nation's whites, and a mere 14 percent of those living in the South, wanted an end to separate Jim Crow schools. Even in the North, only six out of ten residents believed in schools open to both races.  There was, in other words, considerable resistance to the idea even in parts of the country in which black and white children did in fact routinely attend the same schools.

Black support for Brown was not wholehearted either. A great many southern blacks -- the people in whose name the NAACP had been conducting its legal crusade against Jim Crow -- had serious reservations.  A November 1955 poll showed that only a bare majority -- 53 percent -- of the African Americans living in the South approved of the Supreme Court's historic ruling.

It is hardly surprising that the lukewarm backing for Brown among both whites and blacks was reflected in the cautious reactions of the other two branches of the federal government.  President Eisenhower did refuse to make a public statement backing the decision.  He claimed that it would "lower the dignity of government" for a president to affirm or attack Supreme Court decisions.  And in private he evidently expressed his belief that the decision was wrong, that forcing change too quickly would "set back progress in the South at least fifteen years."

On the other hand, he picked as his AG Herbert Brownell  --  a strong civil rights advocate who drafted the 1957 legislative language.  And, as others have noted, he sent federal troops into Little Rock.

Moreover, again, Adlai Stevenson, the leader of the Democratic Party and Eisenhower's opponent in 1952 and 1956, spoke out against the use of those troops to enforce school desegregation, worried about the "extremism" of "Negro leaders," and fumed about "NAACP stubbornness."

(My source for most of the above: Thernstrom & Thernstrom, America in Black and White: One Nation, Indivisible [Simon & Schuster, 1997], ch. 5.)

Abby


Abigail Thernstrom
Vice-chair, U.S. Commission on Civil Rights
Adjunct Scholar, American Enterprise Institute
www.thernstrom.com



On Dec 2, 2010, at 11:29 PM, Brian Landsberg wrote:

Race is a tough issue now, and segregation was considered a difficult issue then.  It hardly demeans Ike to note that his views on segregation and what to do about it evolved during his presidency.  It is good to have a president who can grow in office.

Sent from my iPhone

On Dec 2, 2010, at 1:15 PM, "Smith, Brad" <BSmith@law.capital.edu> wrote:

Let me just say that I still think Breyer's comment is inaccurate.  If I strongly want to open a western front in Europe, and think we should land at Calais, it's not right to imply that my support for Normandy landings was tepid - especially in so sensitive an area, where Breyer ought to know that his comments would easily be interpreted as suggesting that Eisenhower opposed Brown - not on the tactical grounds mentioned by Prof Stebenne, but on more serious moral or substantive grounds.  I'm sure most of us on this list have seen our allies or friends do things that leave us thinking, "Why did they do that?  Well, now I've got to make sure it works." 
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317

From: EDWARD FOLEY [mailto:foley.33@osu.edu]
Sent: Thu 12/2/2010 3:02 PM
To: Brian Landsberg
Cc: Abigail Thernstrom; Smith, Brad; Election Law
Subject: Re: [EL] Breyer doesn't like Ike?

Here at Ohio State, we are very fortunate to have on our faculty the legal historian David Stebenne, who is an expert on "Eisenhower Republicanism" and the author of Modern Republican: Arthur Larson and the Eisenhower Years (2006).  After seeing this exchange on the listserv, I asked him about Ike's stance on Brown (something he and I had discussed previously over the years).  Here's his reply, which he asked that I share with you:

The historical record is clear now that Eisenhower privately opposed the first Brown decision.  He believed, to use his words in private to his aides that "trying to do this (desegregate) by force is just nuts" because that would only increase Southern and Border State white resistance to the Brown I and II rulings.  And so Justice Breyer's comment suggesting a lack of enthusiasm on Eisenhower's part for using force at Little Rock to achieve compliance with the Brown decisions is accurate.  One should not conclude from that, however, that Eisenhower was opposed to ending Jim Crow, or failed to act to bring that about as president.  His administration ended segregation in everything that was under its direct control, such as the veterans hospitals, the Norfolk shipyards, etc.  Eisenhower believed in the goal of desegregation but not in trying to use force to achieve it, believing that such an approach would prove over the long run to be counterproductive.

As Dave is an active contributor to our Election Law @ Moritz program, I'm encouraging him to join this listserv--so he may be contribute directly to our collective discussions in the future.

Best, Ned

----- Original Message -----
From: Brian Landsberg <blandsberg@pacific.edu>
Date: Wednesday, December 1, 2010 6:50 pm
Subject: Re: [EL] Breyer doesn't like Ike?
To: Abigail Thernstrom <thernstr@fas.harvard.edu>
Cc: "Smith, Brad" <BSmith@law.capital.edu>, Election Law <election-law@mailman.lls.edu>


> The history is indeed complicated.  Ike did support the 1957 and 1960 CRAs, and after a slow start his CRD became very active in enforcement during the final year of his term.  However, his ambivalence regarding Brown may well have emboldened Gov. Faubus to obstruct desegregation in Little Rock, which in turn led to Ike sending the troops to enforce the desegregation order.  Tony Freyer’s book about the Little Rock case notes that a few months before Faubus used the National Guard to block desegregation, Ike told reporters: “I can’t imagine any set of circumstances that would ever induce me to send Federal troops…into any area to enforce the orders of a Federal court.”

 
 

> Brian K. Landsberg

> Distinguished Professor and Scholar

> Pacific McGeorge School of Law

> 3200 Fifth Ave., Sacramento CA 95817

> 916 739-7103

> blandsberg@pacific.edu

 

> From: Abigail Thernstrom [mailto:thernstr@fas.harvard.edu]
> Sent: Wednesday, December 01, 2010 2:56 PM
> To: Brian Landsberg
> Cc: Smith, Brad; Election Law
> Subject: Re: [EL] Breyer doesn't like Ike?

 
 

>             This history is complicated. Here’s my understanding: Yes, in 1954, when Brown was decided, Eisenhower expressed the reservations that James Patterson notes. But I don’t believe he repeated those sentiments, and by 1957 he was aggressively pushing important civil rights legislation. Moreover, he appointed federal judges with strong civil rights commitments, and his Justice Department worked to implement civil rights policies.

 

>             In addition, his appointments were more pro-civil rights than any Adlai Stevenson – with his conciliatory views towards the white South -- would likely have made.

 

>             Abby

 

> Abigail Thernstrom

> Vice-chair, U.S. Commission on Civil Rights

> Adjunct Scholar, American Enterprise Institute

 
 

> On Dec 1, 2010, at 4:56 PM, Brian Landsberg wrote:



> I recommend you look at pp. 80-82 of James Patterson, Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy (Oxford 2001), which offers a balanced evaluation of Pres. Eisenhower’s views on Brown.  When asked about his opinion on the newly decided case, Ike said:  “The Supreme Court has spoken, and I am sworn to uphold their---the constitutional processes in this country, and I am trying.  I will obey.”  He privately opined that the “Supreme Court decision set back progress in the South at least fifteen years.”  Patterson tries to put these statements into the cultural and historical perspective of the times, but Justice Breyer’s words are accurate.

 

> Brian K. Landsberg

> Distinguished Professor and Scholar

> Pacific McGeorge School of Law

> 3200 Fifth Ave., Sacramento CA 95817

> 916 739-7103

 

> From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Smith, Brad
> Sent: Wednesday, December 01, 2010 11:07 AM
> To: Election Law
> Subject: [EL] Breyer doesn't like Ike?

 

> From the Breyer interview linked below:

 

> “He surveyed historical tensions between the court and presidents or the public. He picked up the topic of public resistance in the interview, saying, "In my mind the key moment is when (President) Eisenhower sent the troops into Little Rock" in 1957 to enforce court-ordered desegregation and protect nine black high school students.

 

> "Since that time, people have come to expect of presidents that they will follow court decisions that they don't like, which may be unpopular and are even wrong," said Breyer, 72.”

 

> I don’t’ really want to take this list off topic, but this bugged me a bit.  I’m not an Ike scholar, but my understanding is that while Ike never said a lot about civil rights, his administration aggressively pushed the 1957 Civil Rights Act, which was in its original form primarily drafted by his attorney general Herbert Brownell, but had to be watered down to survive Democratic filibusters in the Senate.  And it was Eisenhower who successfully executed Truman’s Executive Order integrating the military (which Truman, having issued the order, was largely unable to accomplish). Eisenhower appointed federal judges who were often very aggressive in following up on desegegration post-Brown (and of course he appointed Earl Warren), and Ike directed the Justice Department to argue for desegregation in Brown.  It’s true –as I understand it, anyway – that Eisenhower would have preferred a slower approach rather than “all deliberate speed,” but Breyer’s implication that Eisenhower was with some distaste following orders seems really unfair.

 
 

> Bradley A. Smith

> Josiah H. Blackmore II/Shirley M. Nault

>   Designated Professor of Law

> Capital University Law School

> 303 East Broad Street

> Columbus, OH 43215

> (614) 236-6317

 

> From: election-law-bounces@mailman.lls.edu [mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Rick Hasen
> Sent: Wednesday, December 01, 2010 11:56 AM
> To: Election Law
> Subject: [EL] Electionlawblog news and commentary 12/1/10

 

> December 01, 2010

"State seeks expedited ruling in Miller lawsuit over write-ins"

> The latest from Alaska.

> Posted by Rick Hasen at 08:53 AM

> "State senator decides not to take Ohio House seat"

> AP reports. "In the memo, Grendell said he wants to remain in the Senate to complete work on issues such as private property rights and home septic system regulations. He declined Tuesday to further explain his reasons for staying in the Senate and referred reporters to his note."

> Posted by Rick Hasen at 08:51 AM

> "DeLay trial offers a window into Washington fundraising and influence-peddling"

> The Washington Post offers this report.

> Posted by Rick Hasen at 08:47 AM

> Origination Clause Problem with Food Safety Bill

> You don't see these every day.

> Posted by Rick Hasen at 08:43 AM

> Justice Breyer Discusses Bush v. Gore, CU in USA Today Interview

> See here.

> Posted by Rick Hasen at 08:40 AM

> "Looking Backward: Instant Runoff Voting in the 2010 Midterm Elections"

> Kevin Oles has written this comment for Moritz.

> Posted by Rick Hasen at 08:36 AM

> Eric Brown Engages in Express Advocacy in Favor of ELB

> In today's morning report, Eric expressly urges you to go to the ABA website to vote for the Election Law Blog as the best "niche" blog in its "Blawg 100" contest. That was very kind of Eric. There's a poll tax associated with this vote, as you'll need to register with the ABA Journal to vote. From the early voting statistics on the site, it looks like "Tax Girl" is running away with it.

> Posted by Rick Hasen at 08:34 AM

> "Is the Arizona Campaign Finance Case the Death of Public Financing?"

> Guy Charles has written this blog post at Colored Demos, responding to my recent post at Summary Judgments.

> Posted by Rick Hasen at 08:28 AM

> November 30, 2010

Prop. 11 Commission Agenda and Live Stream

> Check out the agenda and live stream.

> Posted by Rick Hasen at 03:15 PM

> -- 
> Rick Hasen
> William H. Hannon Distinguished Professor of Law
> Loyola Law School
> 919 Albany Street
> Los Angeles, CA  90015-1211
> (213)736-1466
> (213)380-3769 - fax
> rick.hasen@lls.edu
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