Justice and Jurisprudence
Air Date: April 15, 2019
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. In 1957 we introduced the American people to then little known civil rights leader, Dr. Martin Luther King, Jr. who had just returned from the Montgomery bus boycott. Along his side was Judge J. Waties Waring of South Carolina, US District Judge for the Eastern District. On the bench, Waring was a forceful defender of equality. His decisions laid the groundwork for desegregation as law, Brown v. Board of education and a constitution capable of protecting the enfranchisement and emancipation of all people. Sixty two years after that broadcast, the native South Carolinian US circuit judge who presides in Waring’s seat has discovered with great historical insight, the horrible crime that stimulated the judge’s commitment to civil rights. In his new book “Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of Harry S. Truman and J. Waties Waring” Judge Richard Gergel has penned a moving account of the judge, his conversion from apathetic to the moral conscience of southern jurisprudence. Welcome Judge.
GERGEL: Great to be here. Thank you.
HEFFNER: Watching that interview, which I know you did recently, Waties Waring here on The Open Mind, 1957, what most came to mind to you about his fundamental character?
GERGEL: Well, first of all, it is an historic interview for a number of reasons. It’s Dr King’s first national broadcast and it is the only, to my knowledge, the only surviving video of Judge Waring. Judge Waring had retired as a United States district judge in Charleston in 1952 and had moved to New York. So this was five years after his retirement. He is 50 years older than Dr. King and the host who by remarkable coincidence, was your grandfather, Richard Heffner, who conducted this interview, engaged the two in what was really a remarkable and sparkling discussion about the necessity of both civic activism as well as judicial activism to undo the Gordian Knot of Jim Crow. And it is a remarkable interview by your grandfather, and it is a remarkable display of the emerging philosophies of Dr. King.
HEFFNER: They are so articulate. They both are so precise. And courageous. When did the judge discover first the incident that occurred, the blinding of this sergeant who nobly served in the military for our country?
GERGEL: Let me give a little background, because, in February of 1946, Isaac Woodard, like 900,000 other African American veterans, were discharged from the United States army after the end of World War II and were returning home, 75 percent to the states of the old confederacy.
Now they believed that they would get a better deal now that they had served their country and fought and defended American liberty. But nothing had changed at home. The home front was still locked into the rigid life of Jim Crow: black disenfranchisement, racial segregation, lack of economic opportunity. And there was a natural clash that was going to occur. And that happened not just with a Sergeant Isaac Woodard, but with many others. The event with Sergeant Woodard was literally on the day of his discharge. He was returning to his home in Winnsboro, South Carolina by bus on a Greyhound bus and in the midst of transportation through rural South Carolina, he and the bus driver got into a argument and when he arrived in Batesburg…
HEFFNER: He wanted to use the use the restroom…
GERGEL: He wanted to use the use the restroom and the bus driver spoke to him disrespectfully and he retorted back: speak to me like I’m a man, I’m a man, just like you.
The next stop, the bus driver has him arrested, removed from the bus. And there the police chief of Batesburg, South Carolina Linwood Shull beats and blinds Woodard while he is in custody. That story comes to the attention of President Truman who had a really soft spot for men in uniform. He had been, of course, a World War I commander himself. He was a captain of a battery and he was of course then the Commander in Chief. And when he heard that decorated uniform veteran, battlefield decorated had been beaten on this day of discharge and rural South Carolina basically because of the color of his skin, he was outraged and it sparked several actions by Truman. Literally the next day he wrote a letter to the Attorney General reporting the story of the binding of Isaac Woodard and indicated to the Attorney General, it was time for a federal action.
And within three business days, Linwood Shull was charged in the Federal District Court in South Carolina with the deprivation of the civil rights of Isaac Woodard. That case then gets tried before Judge Waring, an all-white jury acquits the police officer, obviously culpable police officer, in 28 minutes. Judge Waring is conscience stricken by it. He realizes the failure of the system. He and his wife who happened to be there for the trial, both had to basically stare into the abyss of southern racism and that will forever transform both of them. And from then on, he was never the same. And he came home to Charleston and there was nobody in the white community he could talk about, you could not talk about racial equality or questioning Jim Crow. It just wasn’t, there wasn’t space in the white south at the time. So he and his wife undertook a private study on race and justice, reading major books of that era together. And out of that, he went through clearly a major transformation.
Other federal judges in the south in later years would do the same, but Waties Waring was the first who could travel that journey alone and he paid a high price personally for that. So the “Unexampled Courage” is a story of all the folks who were part of that remarkable movement. Many of them were litigants in front of him as well as Thurgood Marshall, Isaac Woodard. It’s quite a story.
HEFFNER: Now, was that injustice, despite the acquittal, was there ever a reckoning for those individuals responsible?
GERGEL: Never. They never, Linwood Shull, having been acquitted, no one, it was like erased from history. He went on to serve in various elected positions, in his home county. And no one in Batesburg seemed to remember ever that this had happened.
HEFFNER: So neither civil or criminal nor political, no repercussions
GERGEL: Nothing. There was a, there was a civil suit against the bus company.
GERGEL: In that era it was very hard to sue a public officer. Today that would be done. But then there really wasn’t. So there was never an accounting.
HEFFNER: Greyhound bus is still in the news for, in the immigration situation that we’re encountering.
GERGEL: Well, this was a difficult situation. You know, one of the defenses in the civil suit against the bus company was, you know, we didn’t beat him. We had no idea this guy was going to do that.
HEFFNER: Right. And they have no idea that the ICE officials are going to, it’s, it’s a ripe conversation to have now, which is why we’re really pleased to host you, Judge.
GERGEL: Well, I’m delighted to be here. I will say that, you know, it’s very interesting how my book seems to resonate to many people in many different ways. I kind of leave it to them to tell the lessons of history.
We need to study history to note that if we don’t know our past. We can never avoid the mistakes.
HEFFNER: Was there any back channel exchange between the president and the judge that you’re aware of.
GERGEL: President Truman? Yes, there was, after Judge Waring had issued a major voting rights decision in that case of Elmore versus Rice, it was the case that allowed, that required the South Carolina Democratic party to open its primary to African American voters, it’s a huge voting rights victory. As a result of that and Judge Waring’s threat to incarcerate anyone who obstructed his order. There was a famous hearing where he told the, the executive committeemen who were clearly trying to defy him, that a federal judge faced with contempt can impose a fine or incarceration. He wanted those present to know, there would be no fines.
Well after that, Judge Waring was the most reviled man in the white south cause he was daring to stand up to the segregationists
HEFFNER: And he needed security protection.
GERGEL: He required 24 hour US Marshal service. He had many threats on his life. He had a cross burned in his yard. He had bricks thrown through his living room window while he and his wife were present.
In December of 1948 after Harry Truman had been reelected, was then the greatest political upset in American history. He invites Waties Waring to the White House. Now that sent a message to the white south. He, you know, he, of course there’d had been a Dixiecrat opponent against him. He invites Waties Waring to the White House and the discussion opened with the president saying to the courageous judge, do you know the story of the Negro sergeant from South Carolina who was blinded and Waring responded, Mr. President, I tried that case.
HEFFNER: Wow. And was he asking gullibly or did he not really, know.
GERGEL: He did not know he had tried that case. He, it was a case of that case had always resonated with Truman. He, he would go back to that story many times to tell that story when he was discussing civil rights.
HEFFNER: I was going to ask you, Judge, did it have an equally potent resonance still both men and it seemed to be reciprocal.
GERGEL: It did. It was amazing that it would have the effect. There’s a, there’s a remarkable letter in the Truman papers at the Truman Library in Independence, Missouri. It was a letter he wrote to a friend. He instructed the library not to release it until after his death. In the letter, a friend wrote Truman and said, you need to get, it was during the election campaign of 48; you need to get off this civil rights stuff. You’re going to lose the south and you’re going to lose the election. Let Eleanor Roosevelt handle that problem. And Truman writes his friend back; it was Ernie Roberts, “Dear Ernie.” And he says, I’m going to tell you some things you don’t know. He then told him the story of the blinding of Isaac Woodard. And he says, if I lose the election over this cause, this issue, it will have been for a good cause. Now can you imagine a politician today saying that?
HEFFNER: You write, “Trying civil rights cases in southern federal courthouses in the 1940s was to say the least, a challenging experience. Federal district judges presiding in the south were frequently hostile and almost always unreceptive to civil rights claims.” That was the context in which pre and post Brown v Board, if you watch that ‘57 interview, the Judge and Dr. King are saying this was the seminal event, but they hadn’t achieved the restoration of law and order as we ought to understand it today.
GERGEL: In fact, at that time they were in the throes of bombings. And you know, Emmett Till had happened just two years earlier. I mean it was, it was, it was a hot war.
HEFFNER: In response to the attempt to desegregate schools and the ongoing pursuit of equality, but what impact tangibly did the judge have in opening the eyes of any of his peers on the court or at least opening the system so that folks were not stymied because they were petitioning, they were challenging the status quo. What did he do and was any of it reversible? Was any of it indelible?
GERGEL: Well, first of all, he wrote the great dissent in Briggs versus Elliott, which was the first federal court order challenging Plessy on it’s face, said it was all wrong. That it was legally, morally and historically wrong. And that, and he suggested in its place a rule that all government mandated segregation was per se unconstitutional.
That was Judge Waring’s dissent in Briggs.
GERGEL: That is the Holding and Brown, it shows up three years later.
HEFFNER: And Marshall really studied that.
GERGEL: Oh no question. They had, they now had a new concept to overturn separate but equal. It was per se inequality and that shows up. That in 1948 when he, when he, when Judge Waring issued the decision at Elmore versus Rice, and in 1951 when he issued the great dissent in Briggs, there was no one like him. There was not another southern federal judge, but they would emerge. These were mostly Eisenhower appointees who were sort of southern Republicans and a lot of them are southern Republicans because they were dissenters from racial segregation. And there was Frank Johnson in Alabama. And there were a number of judges on the Fifth Circuit Court of Appeals. And yes, they all looked to the legacy of Judge Waring. There’s no question. He was a huge influence on that next generation.
HEFFNER: What was the human effect of Waring on judges in generations to come, to follow?
GERGE: Well, Judge Waring is a hero for judges. I have given the talk, which is basically this book in front of my colleagues on many occasions and there is a wonderful painting done by Jonathan Green, a renowned South Carolina artist, of the opening day of the trial of Briggs versus Elliott called “Breath of Freedom,” coming from a statement by Judge Waring that seeing this huge crowd come to this trial was like watching a breath of freedom and that hangs, I would suspect that print hangs in at least a hundred federal judges offices, and he has given them signed prints and it’s so today, Judge Waring’s legacy resonates among my colleagues in many state court judges. I’ve been receiving letters from state court, judges telling me they have read this book and how inspired they are by it.
So he, you know, there’s a candle owned for Judge Waring in many courthouses this very day.
HEFFNER: You write, “While Truman continued to mention civil rights in every State of the Union address for the remainder of his presidency and annually sent special civil rights messages to Congress, he turned his primary focus on civil rights to executive actions.” And we live in an age now where some fundamental provisions of civil rights, namely the Voting Rights Act have been eroded. And I wonder how you view the current jurisprudence that would in effect roll back some of the advances that Truman championed.
GERGEL: Well, I have this question asked Mr. Heffner, a lot.
GERGEL: And I give basically the same response. I don’t really comment on cases I’ve handled or cases I might handle.
GERGEL: And I think everybody who might be a litigant before me is entitled to that.
So I will leave to others to comment on this, I have had a fascinating response, a lot of different responses to the book about what the lessons they learned. And I think there are many lessons this remarkable story tells us, but I’ll leave it to others to talk about the implications of those lessons.
HEFFNER: But you deal with the implications of those.
GERGEL: Everyday, everyday.
HEFFNER: So what speaks to you most in the way that you go about judging, that is either reflected in this history or is an effort to continue to seek the goals of Waring?
GERGEL: Well, let me say this, every day, I and my colleagues some 600 and some odd fellow judges across the country and the houses of state judges deal every day with issues about the rights of people in our court. Many of them are criminal defendants. Their pop, if you put it to a vote, no one would give them any rights.
But we every day, protect their right to due process of law, to protection from unlawful searches and seizures. We enforce the rule of law every day. And if anything this book tells us, is the power and the importance of upholding the rule of law. And that is, you know, inspires me as a judge. It inspired me in the story to write is the importance that separates us really from any other society out there. And certainly the American jury system and the American system of justice is the model for the rest of the world. It’s an, so this story in 1946 in many ways helps us on a path where we are today. It’s not perfect. We got much; we got a lot of work to do. We do it every day. But the story in my view is the preeminence of the constitution and the rule of law.
HEFFNER: What do you think that metamorphosis that you describe means in everyday language for people, it means that you are not judged by the color of your skin, but by the content of your character. In …
GERGEL: Course, that’s the great Dr. King line. Yeah, but
HEFFNER: But is that a fair.
GERGEL: But it’s really, it’s really more than that, that you are entitled to the Basic Rights of citizenship, which is the right to vote,
GERGEL: Untrammeled ballot, the right to a fair trial before a fair jury, a right to equal justice in every aspect of life, and equal opportunity. These are enduring principles. And you know, we are an imperfect union, but we’re, you know, we are aspiring, as Lincoln said, for a more perfect union.
HEFFNER: Right. Well, to me, I know you don’t want to get into current case law. When you have a nominee for any circuit, federal court, any court who questions the validity of Brown, I mean that’s a pretty strong signal, alarm going off if, if someone is not establishing the precedents that Marshall and Waring and others were,
GERGEL: Or nine members of the Supreme Court in 19 on May 17, 1954. Right,
GERGEL: Well I’m not going to comment on judicial nominees that’s really out of my lane, but we need to have judges and I think we do have judges committed to the rule of law and certainly my colleagues are.
HEFFNER: Looking at the judge and Dr. King in that 1957 interview, what do you think they would hope for the judicial system, having seen a lot of progress and having seen some of their aspirations realized, would they be confident that the judicial system along with the kind of civil disobedience that King and others undertook, is that still the formula for perfecting the Union?
GERGEL: Yeah. You know, the most, to me, the most fascinating part of that interview was your grandfather’s questions to Dr. King about, do you think now that you’re in the courts fighting in the courts, is it really consistent with that to go into the streets?
GERGEL: And Dr. King says they enhance each other, and Judge Waring butts in, at one point it says, he calls him Luther King, he says, Luther King is absolutely right. You know, and, and so you can’t, you got to have them all and it’s hard to know what Dr. King would think today. It’s hard to project, but he would be in the streets.
There’s just no question. He saw activism as a critical element in advancing the cause of justice.
HEFFNER: I think one of the most stunning things is that the judge is emphatically there with him. I mean, he does not question the strategy.
GERGEL: Oh, he says, you know, you can’t, it’s one thing to announce the rights, he says, but unless people are willing to assert their rights, then nothing happens because the courts can’t go out and assert the rights for them that people must stand up. There’s a wonderful moment in the trial of Briggs versus Elliot, now that’s the first frontal attack on racial segregation in American history. And the history had been, prior to that time, civil rights trials in the south were very poorly attended because African Americans were fearful of appearing and the local white power structure would view them as questioning the racial status quo or God forbid, were members of the NAACP.
So these courtrooms are generally empty for these trials. Well, the opening day of that trial, as the sun rose in Charleston, African-Americans line Broad Street as far as the eye could see. And Thurgood Marshall walking into the courthouse and seeing this massive crowd turned to his assistant Bob Carter and said, we just won. And he says, Thurgood, what are you talking about? He says they’re not scared anymore. So it was that sense of active, that willingness to stand up and not acquiesce. Jim Crow required acquiescence when you had to go to the back of the bus. If you didn’t, you just refused. I will not go to the back of the bus or as Rosa Parks – I will not give up my seat. Then the whole system starts collapsing. You need the victim of Jim Crow to acquiesce.
HEFFNER: In popular sentiment, the public evolved over time when you have such a trauma, like what happened to the sergeant, you know, that can accelerate the empathy and the factor of, you know, human to human understanding the tragedy and the dehumanization.
GERGEL: You’re, you’re, absolutely right. You know, today the name of Isaac Woodard has been largely forgotten. He’s been kind of lost to history. Hopefully this book will play some part in placing him in I think the pantheon of really important civil rights moments. But he, at that time in 1947, ‘46 and ‘47, he was on a national speaking tour describing what happened to him. He was one of the most important black men in America in the black community. He was a hero. He had stood up and survived. And the circumstances under which he had been blinded in which he stood up and said, speak to me like I’m a man. I’m a man, just like you. That resonated in a way that was really, really powerful at the time. And I think that’s, all these years later, I think it resonates today.
I will tell you I tell the story in my, in the book that I had read on the Internet, a letter from Julian Bond, the great civil rights leader, who said that the Isaac Woodard blinding, ignited the modern civil rights movement. Well, I called him on the telephone. I’d never met him before. I called him on the telephone and I said, Mr. Bond, working on a book on Isaac Woodard. And I saw this letter on the Internet. And he said, yeah, I wrote the letter and I said, let me tell you about my research with the impact of this case on Judge Waring and President Truman. And he listened and he said, well, Judge Waring was a friend of my father’s; his father was the president of Lincoln University. So he was a friend of my father’s. I knew Judge Waring. And I know the story Judge, of President Truman integrating the armed forces of the United States.
But that’s not why I said this about Isaac Woodard. And he began to describe to me the story of what he remembered as a child of the blinding of Isaac Woodard. And specifically a photograph he had seen as a child of the blinded sergeant, it’s in the book as he described it to me; he began to weep openly on the telephone. He have to stop and a little embarrassed, he says, Judge, I apologize for my tears, but the truth was, he said, 70 years later, I still weep for that blinded sergeant. It was a powerful story that inspired, really a generation of returning African American veterans and others to stand up for their rights. So it was an important moment in American history.
HEFFNER: Let me do a last attempt here. Maybe you can give me a little sense of your judicial philosophy, which is open book.
HEFFNER: Or maybe you won’t reveal it, but there was a time and there still is a time, perhaps today, when that full emancipation would be viewed as activism. When you hear stories like that, and what Bond conveys is that realizing our humanity is not about judicial activism, it’s about the realization of the constitution and it’s aspirational
GERGEL: A living Constitution.
HEFFNER: and the declaration
HEFFNER: Of life, the pursuit of life, liberty and happiness for each and every citizen. And so maybe you can just shed some light at the conclusion of this conversation now on the judicial philosophy, Judge Waring espouses, now the judicial philosophy that Judge Gergel espouses, in translating that human, raw human emotion into a Constitution we can all get behind.
GERGEL: Well, let, let me say this, you know, Judge Waring says there was a moment in his career and the white primary case where he knew his decision was going to be terribly unpopular and he said, I had to make the decision whether I was going to be a defender of white supremacy or I was going to be a federal judge and decide the law. He picked the latter and I will tell you that the strong culture of my colleagues today is we pick the latter. We stand up for the rule of law.
HEFFNER: Thank you, Judge.
GERGEL: Pleasure to be here.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Do check out that 1957 interview. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online or to access over 1,500 other interviews and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.