Bill Moyers Journal; 524; Judge: The Law & Frank Johnson-Part 1

ANNOUNCEMENT: Funding for this program is provided by this station and other public television stations and by grants from the Corporation for Public Broadcasting, the Ford Foundation and the Weyerhaeuser Company. JUDGE FRANK M. JOHNSON, JR.: People in the South are unique. They're law-abiding. They may not like it, but if they become convinced that something is the law of the land, then they're inclined to obey it and it hurts them to disobey it. I'm talking about the majority of the people. I'm not talking about the exception. And I realized that a good many people here in this section of the country were dissatisfied with some of the Constitutional decisions that I found it necessary to make, but at the same time, through the years, I don't think there's any question about it that I gained a

reputation among a large majority of the people in this section of the country, that Judge Johnson's tough. Judge Johnson will rule the way he sees the Constitution, but there's always one thing he's always fair. And that's the only reputation that a judge can hope to get. That's the only kind of a reputation he ought to want. BILL MOYERS: In this courtroom in Montgomery, Alabama, more epic civil rights cases were decided in the last 25 years than in any other courtroom in America. They were decided by a judge some call the most hated man in the South, but a man who has earned an enduring place in our history for his courage and wisdom. His decisions changed the face of the South and helped to bring about a new American revolution. Tonight, in the first televised interview he's ever granted, I'll talk with Judge Frank Johnson, note around here as simply Judge. I'm Bill Moyers. BILL MOYERS: You have only to scratch the surface of memory to recall the times when life in the South still

referred to as antebellum was slow and segregated. Rural Blacks lived in unspeakable conditions seldom broadcast to the world beyond. In towns and cities, Blacks were confronted with daily reminders of laws and customs that kept them separate and unequal. Most were constantly denied their constitutional rights, thus were powerless to bring about change. The poet Langston Hughes captured the frustrations of his people when he wrote in the 50s, "Get out the lunch box of your dreams, bite into the sandwich of your heart, and ride the Jim Crow car until it screams, then like an atom bomb, it bursts apart." It burst apart in 1955, when a 42-year-old seamstress named Rosa Parks refused to give a proceed on a city bus in Montgomery, Alabama to a white man. She had perhaps unwittingly detonated the civil

rights crusade. From that chilly December day on, action and reaction combined to create an inexorable pattern of petition, violence, and change that lasted nearly two decades. Boycotts, marches, rallies: they all brought hatred, anger, violence, and demagoguery. As Black frustration and resentment changed the protest, the worst of prejudice exploded across the South. In the midst of all the passion and turmoil, a quiet Southern judge, a Republican from the free state of Winston County, turned the tide of white resistance with a stream of decisions that upheld the claim of Blacks to their civil rights. President Eisenhower brought him down from the hills of Northern Alabama to sit as a federal

district judge in Montgomery. It was 1955. He was just 37, the youngest federal judge in the country. Fate placed Frank Minis Johnson Jr. in the nerve center of confrontation and change. To give you an idea of his impact on the South and the nation during his twenty four years on the district bench, this is how he responded to the challenge. He declared segregated public transportation unconstitutional. He ordered the integration of public parks interstate bus terminals, restaurants, and restrooms, and libraries and museums. He required that blacks be registered to vote, creating a standard that was later written into the 1965 Voting Rights Act. He was the first judge to apply the one-man-one vote principle to state legislative apportionment. He abolished the poll tax. He ordered Governor George Wallace to allow the civil rights march from Selma to Montgomery. He ordered the first comprehensive statewide school desegregation. He was the first to apply the equal protection clause of the Constitution to state laws discriminating against women. He established the precedent

that people in mental institutions have a constitutional right to treatment, a sweeping breakthrough in mental health law. His order to eliminate jungle conditions in Alabama for prisons is the landmark in prison reform. In 1969, Richard Nixon considered Frank Johnson for an appointment to the Supreme Court, Southern Republicans vehemently objected and the appointment was blocked. President Carter nominated Johnson in 1977 to head the FBI, but the judge withdrew a few months later after major surgery. Last year, after almost a quarter century as a district judge, Johnson was elevated to the Fifth Circuit Court of Appeals. We spoke in that courtroom in Montgomery where his momentous decisions had been made. Tonight, the first part of our conversation. BILL MOYERS: When you were appointed to the bench, one of the newspapers in Alabama referred to you as a "foreigner." They said the feds had gone all the way up to the damn Yankee territory of Alabama. North Alabama would bring a Yankee down to

Montgomery, which is the old capital of the Confederacy. What did they mean when they said the damn Yankee territory of Northern Alabama? JUDGE JOHNSON: Well, Northwest Alabama was inhabited back in early 1800s by a lot of Andrew Jackson's people and men that came with him down the fight to the Creek indents. And land in Tennessee at that time was selling for $2, $3, $4, $5 a acre. Land in Northwest Alabama was selling for $0.5 and $0.10 a acre. And they bought small farms and they brought their families and they settled in Northwestern part of the state. They not only brought their families with them, they brought their attitude toward government. And the people up there have been referred to in many instances as Jacksonian people, Jacksonian Democrats. I think that they envisioned themselves as adhering to the

Andrew Jackson philosophy of government. And the Republicanism didn't grow up in Northwest Alabama until the Civil War. MOYERS: What happened after that? How did Republicans get established in Northern Alabama? JUDGE JOHNSON: Well, the people that adhered to the Jackson philosophy, I had a fierce loyalty to the national government. I expect probably the most dramatic example of that is a resolution that they passed in Weston County. MOYERS: That's where you were voiced. That's right. And raised in the Winston County. I grew up there. The Senate went in Winston County and that entire area was for neutrality. They did not want the State of Alabama to seceed from the Union. And they adopted a resolution on July

4, 1861, to this effect. We agree with Jackson, meaning Andrew Jackson, that no state can legally get out of the Union. But if we're mistaken in this, and a state can lawfully illegally seceed or withdraw being only a part of the Union, then a county. In any county, being a part of the state by the same process of reasoning could cease to be a part of the state. And then they continued. We think that our neighbors in the South made a great mistake when they attempted to secsede eand set up a new government. However, we do not desire to see our neighbors in the South mistreated. And therefore, we're not going to take up arms against them. But on the other hand, we're not going to shoot at the flag of our fathers, Old Glory. The flag of Washington, the flag of Jefferson, the flag of Jackson. Therefore we ask that the Confederacy on the one hand and the Union on the other leave

us alone. Unmolested. That we may work out our political and financial destiny here in the hills of Northwest Alabama. And that's the part of my heritage. Is that why they call it? That's the reason the people here, I think, jokingly more than anything else, made reference to my being a foreigner and being imported. MOYERS: Is that why they call Winston County the free state of Winston? JUDGE JOHNSON:That is true. That is true. After this resolution, they passed a formal resolution, the same day, seceding from the state of Alabama. MOYERS: What happened practically? What happened to it during the Civil War? JUDGE JOHNSON: Very few eligible men-biological I mean those that were fit for war duty. Join the Confederate forces. Over 90% of the men in Weston County and surrounding counties, Weston County probably took the lead in all of

this refused to go. The Confederacy sent what they call press gangs in to arrest them and force them and take them and impress them in to Confederate Army service. A lot of them fled. They hid in the hills and in the cave. Many of them were pushed to the point that they went through what was then the underground and joined the Union forces. And some of my forbearers joined the Union forces. MOYERS: But some also fought on the Confederacy. JUDGE JOHNSON: They did. MOYERS: Did you ever feel divided loyal? JUDGE JOHNSON: No, no. Never. The division in so far as the Civil War's concern never played any strong part in discussions in our home. We always had them intense pride in being Americans. We had an intense loyalty to our central government. But I never felt

like I was torn between two ideologies and I don't think any of my parents, either of my parents did. MOYERS: So long we look back to the Civil War. Back to those days when the "glorious defeat" one author called it. Do you think that's over. That for all practical purposes that's no longer the definitive memory in the mind of the South. JUDGE JOHNSON: Well, you still see tags on automobiles of the old Confederate veteran with his whiskers and his walking stick. He said, hell ain't forgot sake. You still see rebel flags at public gatherings, particularly football games. You still have people that wave the Confederate battle flag. But I don't think seriously the conflict to which you made reference -- to the Civil War plays any

part in our society at this time. I don't envision that it will in the future. Of course, not many people down here refer to it as the Civil War. They refer to it as the Northern War of Northern Aggression. Some of them refer to it and most people refer to it as the war between the states. They refused to acknowledge that it was a Civil War. MOYERS: What do you think that growing up in Winston County did for you? I mean, somebody wrote a view that they think that your code of what's right and wrong was very much molded by your upbringing in Winston County. All the people up there, he said, have a strong sense of frontier justice. JUDGE JOHNSON: I think that's true. I don't think there's any question about it. MOYERS: What was frontier justice? JUDGE JOHNSON: I think my regional background had a very, very decisive effect on my approach to dispensing what I considered to be justice and attempting to, through judicial

decisions, for actions that I considered unjust. People in that section of the country have fiercely independent attitude and personality. They have an intense respect for individual and individual rights. They believe in a person's dignity and they believe each person is possessed of and is entitled to integrity. They believe that without regard to race, creed, color, ideology, every man's his own man is a real basic philosophy. Amazing, isn't it? I came here with that, maybe most of it unconscious and ingrained in my mind. JUDGE JOHNSON: Amazing how a small pocket of an exceptional mentality can thrive surrounded

by a conformist mentality and have such an impact ultimately on the society of which it was not a part. JUDGE JOHNSON: Well, if you knew the individual strength of the ordinary citizen up there in the hills, you would understand that they're are strong people, they're are loyal people, they're are highly intelligent people, a lot of them aren't well educated, some are now. MOYERS: Your great grandfather, I think, was named Straitedge Treadaway. How do you get that? JUDGE JOHNSON: Well, carpenters use that expression when they want to draw a straight line. Draftsmen use that expression if they want to draw a line that's absolutely straight, it doesn't deviate one way or the other, so they put the straight edge to it and draw it and that's how you got his nickname. MOYERS: What was he? JUDGE JOHNSON: He became sheriff, he was first

Republican sheriff in Fayette County after the Civil War, elected by the people. There were that many Republicans there. MOYERS: and they considered him a fair sheriff. That name stuck with you all these years, didn't it? Charles Lamb wrote, "lawyers I suppose, were children once." What do you think your childhood, what values do you think your childhood gave you that are important to you today? Well, I think the value of approaching life with ideas that you get what you earn. You earn no more, no less, than that to what you're entitled. You find very few people up in that section of the country that inherited anything. They

came to the hills without anything. They got only what they were willing to work for. I expect that, plus a strong sense of fair play, and a respect for the individual and the individual's dignity. Served me in great stead as a lawyer and as a judge. MOYERS: I'm told that there used to be a sign at the county line in Winston County. I don't know whether it was on the Winston County side or the other side that said, "Nigger, don't let the sun set on you here." How did you escape that poison infecting your own sense of things? JUDGE JOHNSON: Well, I've heard about that. If that sign existed, I never saw it. It did not

represent, and it does not represent the large majority of the attitude and the thinking of those people in that section of the country. I wouldn't say that it was necessary that I escaped that attitude or that I had to take some kind of action on my part to keep from being imbued with it. It just was not a predominant attitude. MOYERS: For years, your father was the only Republican in the state legislature of Alabama. You spent your whole life in this, much of your whole life in this courtroom rendering decisions that were very unpopular in this part of Alabama. What does it take for your father as the only Republican and for you as an uncompromising judge? What does it

take to go at alone? JUDGE JOHNSON: Well, I think there's a basic fallacy in that question, Bill. I've never thought that I was going it alone. As a federal judge, I operated as a member of the federal judiciary, operated as an officer of the United States, operated with an intensely loyal group of people constituting the supporting personnel of the court, United States Marshals, United States Attorneys, and Federal Bureau of Investigation, Secret Service, court clerks, probation officers. Aside from that, my wife and I have made a tremendous number of friends in this section of the country since we came down here and friends who friendship we prize very highly.

But your decision were very unpopular. You know that. JUDGE JOHNSON: They were unpopular to some of them were unpopular to a large segment of the population. No question about that. People in the South are unique. They are the law-abiding. They may not like it, but if they become convinced that something is the law of the land, then they're inclined to obey it and it hurts them to disobey it. I'm talking about the majority of the people. I'm not talking about the exception. I realize that a good many people here in this section of the country were dissatisfied with some of the Constitutional decisions that I found it necessary to make, but at the same time, through the years, I don't think there's any question about it that

I gained a reputation among a large majority of the people in this section of the country that Judge Johnson's tough. Judge Johnson will rule the way he sees the Constitution, but there's always one thing. He's always fair. That's the only reputation that a judge can hope to get. That's the only kind of a reputation he ought to want. MOYERS: But were you ostracized? JUDGE JOHNSON: Judge's that decides cases in order to curry public favor, or decides cases in order to keep from incurring public disfavor, doesn't have any business being on the bench, whether you're going through a kind of a social revolution that we've been through the last 25 years in this country or not. MOYERS: It's hard for a federal judge to do that often. In fact, law scholars point out that over the years, the federal district judges coming as they do from a particular part of the country, serving in that part of the country, often nominated by through their participation or association in the politics of that part

of the country, have generally tended in the history of our judiciary more to reflect popular sentiment in that region than other judges. And yet, here you were in Montgomery. Of course, you were from Northern Alabama, rendering these decisions that were helping to create the social upheaval. Did Montgomery ostracize you and your family? I've heard the story JUDGE JOHNSON: of a portion of the people in Montgomery. No question about that, but a large portion of them didn't. We never suffered from any ostracism to which we may have been subjected. It's hard to, and I've said this before, but it's hard to ostracize someone that does their own ostracizing. MOYERS: What do you mean? JUDGE JOHNSON: Before I became a judge, I like to choose my own friends. I like to go my own course. Social functions were a burden. I'd rather be

out fishing in a fishing boat than at the Phantom Ball. MOYERS: It's hard to ostracize someone that likes to fish. It is. JUDGE JOHNSON: That's part of it. It is, absolutely. MOYERS: But there were fire bombings, crosses burned on your lawn, bags of hate mail. Your mother's own house was fire bombed while she was on the second floor. JUDGE JOHNSON: Dynamite. Dynamite. That's right. MOYERS:That's pretty expressive hostility. Did it make you angry? JUDGE JOHNSON: Of course. It makes me angry. The same way that if I was driving an automobile down the road and some drunk came and ran

me off the highway, that wouldn't make me angry. MOYERS: Yes, but the fire bombing, this was close. That was very targeted. It was very deliberate, absolutely. JUDGE JOHNSON: It did make me angry, but I could not, and I hope that I did not let that influence me in any decision that I made. MOYERS: No one has ever said that it did, JUDGE JOHNSON: The guys who burned the cross in my front yard, of course, I recuse myself in that case. Judge Reeves handled it. MOYERS: What happened? JUDGE JOHNSON: I recommended Judge Reeves that he put him on probation and he did. JUDGE JOHNSON: Why? Well, they were misguided and I didn't suffer by the cross being burned in my front yard. They were demonstrating. They were expressing themselves, in an illegal way to be sure, but it didn't harm me. It burned a patch of my lawn. MOYERS: But your mother could have been killed. JUDGE JOHNSON: Absolutely, absolutely. MOYERS: Did you think this is the last straw? JUDGE JOHNSON: No, no, no. Neither did she. MOYERS: She sounded like a marvel. She was her name.

Alabama. Alabama Long. That was her name. Oh, yeah, sure. Her name's Alabama. MOYERS: She's still living. Is she living? JUDGE JOHNSON: Yeah. Alabama Long. That's right. Alabama Long Johnson. MOYERS: Did she stay with you through all those years? I mean, philosophically? JUDGE JOHNSON: Oh, my goodness, yes. I could do no wrong. So did my father. Well, what does she think when their home was dynamited, she was sitting there? What'd she say to you? Well, nothing much. My mother is pretty cool. She didn't have too much reaction. The newspaper reporters were there and the FBI and Ms. Johnson, don't you want to go somewhere and spend a night? Says absolutely not. They're not going to run me away from my home. I'll stay right here. And she did. They boarded up from windows and swept up the glass and picked up the chandelier in the dining room and swept the force of it, swept all the way through the downstairs. To where the car pulled, but mother's pretty strong character. She's whittled in. My

father had already died. We put FBI agents out there, put marshals out there. They were more of a nuisance to her than anything else. She said, when are you going to take them away? They bother me at night, opening and closing doors and shining flashlights around my house. I expect her attitude caused me from being upset. I was a little upset that they weren't able to discover who did it and apprehend those that did it. MOYERS: Have they ever? JUDGE JOHNSON: No, they have not. Would you have recommended probation as you did for them? JUDGE JOHNSON: No, I sure would not have. That had the potential for extreme violence. It wasn't just merely a method of expressing their dissatisfaction with some of my decisions. There's no question but

that it was directed toward me. My father's name was Frank M. Johnson. He was listed in the telephone book. I took my listing out of the book the first two or three nights. They kept me awake. Way back in 1956, when we first entered the Browder Gale case, desegregating public transportation. MOYERS: Judge Johnson's baptism on the bench couldn't have been more significant. In the early 1950s, segregation in all Montgomery's public facilities, including its municipal bus system, was legally mandated. On December 1, 1955, a Black woman named Rosa Parks holding a bag of groceries and tired from a long day of work as a seamstress, took a seat in the first row behind the crowded, whites only section of a Montgomery bus. Two white men boarded the bus on Cleveland Avenue. The driver called out, niggers moved back. Most, obediently gave up their seats. Rosa Parks did not. All conversation stopped. No one

moved. It was a moment that would change forever the social tradition so deeply ingrained in the South. Rosa Parks protests gave local Black leaders the Constitutional challenge they had been seeking, and the cause needed to mobilize their community. From their ranks emerged the pastor of a local Baptist church, a 27 year old named Martin Luther King, Jr. A few days after Rosa Parks' arrest, he organized the Blacks boycott of the Montgomery bus system that was to last a year. It was the first large scale mobilization of black protest, the spearhead of the civil rights movement, the origin of the era of passive resistance. The laws that separated Blacks and whites on the buses were given legitimacy in a Supreme Court decision, Plessy versus Ferguson. It created the separate but equal doctrine in transportation cases. In 1954, the Supreme Court rejected that doctrine in its historic Brown versus Board of Education decision, but it applied only to the area of education.

Judge Johnson, as part of a three judge panel, concluded, quote, there is no rational basis upon which the separate but equal doctrine can be validly applied to public carrier transportation within the city of Montgomery. MOYERS: Wasn't this the first case to extend the Supreme Court's decision of 1954 beyond schools? That is true. The interesting thing about Browder v. Gale and the thing that prompted Judge Land to dissent in that case. It was a three judge case. The thing that prompted Judge Land to dissent was that the Supreme Court of the United States had decided Plessy v. Ferguson. Plessy v. Ferguson, factually, was on all fours with this case. It involved public transportation. And the Supreme Court said that "separate but equal" is constitutionally acceptable. And so far, public transportation is concerned. Plessy against Ferguson had not been discussed in Brown. Plessy against

Ferguson had not been overruled by the Supreme Court. So that made Browder v. Gayle very unique, not only for the reasons that it's the first case that extended the rationale of Brown against Board of Education. But it was probably the first time in the history of this country that a district court's ever overruled a decision of the Supreme Court of the United States. Of course, we perceived, and it was evident to us, that there was a doctrinal trend in judicial decisions, not only by the Supreme Court, but by some of the other federal appellate courts throughout the country. MOYERS: A doctrinal trend? JUDGE JOHNSON: A doctrinal trend that rendered Plessy against Ferguson no longer viable. And Brown against Board of Education was a major part of that doctrinal trend. MOYERS: What was the key element in your own mind in deciding, in effect, to overrule the Supreme Court and to order the desegregation of Montgomery buses? Justice Harlan said in Plessy against Ferguson. And he said he

was right all the time. He said there's no place in our constitution. But "our Constitution will not tolerate segregation of the citizens on the basis of race in any public facilities:. MOYERS: When you agreed with that and made that decision with your other colleague of that three-member panel, were you aware of the social upheaval that was about to be visited upon this? JUDGE JOHNSON: I don't think so. I don't think so. Of course, I didn't study about that and I really wasn't concerned about it. But I don't think that it ever occurred to me that there would be an adverse reaction to a court saying to the people that you cannot tell the Black people that aren't citizens. And they're not the second class citizens. People that argue that they are not entitled to full Constitutional rights just can't read the Constitution.

We made them citizens in the 13th and the 14th and the 15th amendments to the Constitution. And when you say they're not entitled to full rights, then you do not accept the provisions of those amendments to the Constitution. It didn't occur to me that there was a large segment of the people in this country that would resent a judicial decision that was based on that concept. MOYERS: When did it become aware to you that that was an enormously unpopular decision at least locally? JUDGE JOHNSON:Well, I think it was enormously unpopular all over because every state in the South had segregated public transportation facilities. So Brawer against Gale not only affected Montgomery. It affected state statutes in Alabama. It stood for a case from a three-judge court, appealed directly to the Supreme Court

of the United States. And that's the only route that you can take one of those cases. It doesn't go to an intermediate appellate court. I think that it gave concern to the state authorities and municipal authorities throughout the South. It was almost immediately that there was a tremendous adverse reaction to the action that we had taken. MOYERS: Anybody call you say, my god, do you know what you've done? Or do you know what you've done? JUDGE JOHNSON: Well, they didn't put it in those words. MOYERS: How did they put it? JUDGE JOHNSON: For public television consumption, I wouldn't I'll let you read some of my mail. I don't think I was subjected to the vilification. I don't think I was subjected to the feeling of hate, comparable to that, to which Judge Rives was subjected. Judge Richard Rives

and I are the ones that decided that case. Judge Rives had grown up here in Montgomery. He had practiced law here in Montgomery. He was one of the most able, recognized as one of the most able lawyers in the South. President Truman appointed him to the federal bench. He had been on the bench about four years when I came on in '55. He up-sweared me in in this courtroom. But Judge Rives roots were here. He was one of them. He wasn't a foreigner that had been imported from the hills in North Alabama. It was said by several people and probably in the newspapers, I think I recall here in Montgomery, says, well, we didn't expect any more out of that fellow from up at North Alabama. But Richard Reeves is one of our own. And we did expect more out of him. And he's forfeited right to be buried in Confederate soil. And that's how strong it was.

MOYERS: When you were discussing that case and your private chambers after it had been argued? The junior member of the court votes first. The senior member of the court votes last. That's followed throughout the system. That's to keep the senior member from influencing the junior member in his vote. MOYERS: And you voted first. So Judge Reeves, "Frank, says, what do you think about this case?" I said I don't think segregation in any public facilities is Constitutional. You know, violates the Equal Protection Clause, the 14 Amendment, Judge. That's all I had to say. It didn't take me long to express myself. The law was clear. And I might have had this bill. The law to me was clear and practical error. One of these cases that I've decided where a race was involved. I had no problem with the case where we outlawed the poll tax, charging people to vote. I had no problem with the museums, the libraries, the public parks, or any public facilities. The law will not tolerate discrimination

on the basis of race. MOYERS: When you said this to Judge Reeves, who voted with you or you two voted together, what did he say? You said segregation is wrong, Judge. JUDGE JOHNSON: Well, I didn't say segregation is wrong. I said, state in bold segregation and public facilities is unconstitutional. I didn't take a moral position. I never have taken a moral position in any of these cases. Wait a minute. What's the difference? Well, segregation being wrong is my moral concept of what's right and what's wrong. And that's not the approach that the Judge takes when he's deciding Constitutional cases. He cannot impose his own sense of morality or superimpose it on the Constitutional provision. Of course, it's true that I think it was Cardozo that said that a judge should be impartial and should view these cases with complete impartiality. But he sees the case through his own eyes. And in that sense, I expect every judge decides

cases to some degree on his concept of what he sees to be right and wrong. But that's not the judicial approach that I've always taken in these cases. MOYERS: You really try to separate my feeling of morality and my feeling of what's right and wrong? JUDGE JOHNSON: Absolutely. You've decided cases in a way that ran contrary to my feeling of morality. MOYERS: Because you felt the law had... JUDGE JOHNSON: absolutely, absolutely. MOYERS: But in interpreting the law, it doesn't subconscious forces your own experience in Winston County, your own forebears, being the free citizens of the free state. JUDGE JOHNSON:There is no question. And that's reason I made reference to Justice Cardozo statement. There is no question but that when, I'm looking and trying to interpret a constitutional provision or a legislative provision or any law that comes under my scrutiny. I see that law through my own eyes. And that means I see it and

I interpret it and I evaluate it according to my biased experiences and according to my heritage, which includes in part my regional background, my upbringing. But not as a moral crusader. JUDGE JOHNSON: Absolutely not. Absolutely not. A judge cannot be if he stays within his role as a judge, be a crusader. MOYERS: Well, what did Judge Reeves say to you? JUDGE JOHNSON:Well, when it came Judge Reeves' time to vote, he says I feel the same way. MOYERS: That was it? JUDGE JOHNSON: I'm sure. I don't know. I don't guess we deliberated over 10 minutes at the outside. MOYERS: History seems to require more dramatic moments than that. JUDGE JOHNSON: There are rarely any dramatic moments on a judge's conference room. What about it? It's a co-calculated legal approach. MOYERS: Have you read Harper Lee's

wonderful novel To Kill a Mockingbird? JUDGE JOHNSON: Sure. MOYERS: There's a figure in To Kill a Mockingbird, a lawyer named Atticus Finch. And Atticus Finch is the symbol of the judge, the lawyer in the South, that has so long been honored, an incorruptible individual who stands against the passions of his times, even against his own sympathies and biases to do what he knows is right. And the interesting point to me about Atticus Finch is that the people in that community who ostracized him for defending a Black man wanted him to do the right thing. Now I think there may have been Southerners who wanted you to do the right thing, but they were angry as hell because you did. And it's that contradiction that I wish you would try to explain to me. JUDGE JOHNSON: I doubt if there's any explanation that I could give for what you term a contradiction. I think a large part of what gives the appearance

of being a contradictory reaction arises out of the fact that many state and county and municipal officials understood what they were required to do. They understood what they were prohibited from doing when they measured it against Constitutional requirements. But they did not feel that they could do that or fail to do that, whichever it was, and continue to live in their community. So they punted their problem to the federal court. They punted, that's an expression that I started using back several years ago. And they knew what the decision would be. Practically everyone involved in the case, and certainly the lawyers knew what the decision would be. But you had a political approach that gave

them the opportunity to holler a federal court infringement. Judicial usupation of state's rights. And then they go back and say, well, we have the decision. And it's a federal court order and we are required to implement in it. We're required to abide by the law. We're required to desegregate our schools. We're required to desegregate our bus station. We're required to desegregate our state penal facilities. Let me read you what one writer said about that. MOYERS: In other words, the elected official needs the federal court both as a scapegoat and as an agent for doing what he knows is necessary. JUDGE JOHNSON: Absolutely. Absolutely. And that's the point. Neil Pierce made it in his book on the Deep South States of America. He wrote of Alabama. And this is not unique to Alabama, but he

was writing about Alabama at the time. He said there "was no state in the country in which the federal courts were intruding themselves so deeply into the basic governmental process. But perhaps none in which their interference was more justified because of the inaction and re-action of state government. We holler about the federal courts having too much power. State Attorney General Bill Baxley said. But if you have states rights, you also have states responsibilities. The state refused to face up to it for responsibilities time and again. We abdicated our power." So that gives rise to probably the appearance that there was some contradiction and the attitude that people had. We're angry because you did it. But we're glad that you did it because it needed to be done. Now the ordinary citizen out in the state did not realize what was happening. MOYERS: What do you mean? JUDGE JOHNSON: Well, they didn't realize

that state officials knew that it was the law. They didn't realize that the state officials knew that the Constitution required them to take some action or forbade them to take some action. They didn't realize that the state officials were punting their problems to the federal court knowing what the outcome was going to be. They listened to the political speeches about judicial infringement, judicial usurpation of state rights functions. That's the only part of it that they got. That's the only part of it they absorbed. MOYERS: What surprises me looking back over the last 25 years is that when the Supreme Court in 1954 made its judgment about in Brown versus Board of Education, those judges on that court assumed compliance and cooperation on the part of lower courts and citizens. And the court got little of either. Now how do you think the court misjudged the reaction to those decisions? JUDGE JOHNSON:I'm not

sure they did misjudge the reaction. They discussed in Brown too, 55 decisions that this will cut across the social fabric in certain sections of this country, more than others. That there will be problems in various sections of the country that are different from those problems in other sections. It will take longer to implement this decision in some sections of the country. They discussed all of those things and that's what prompted them to put the implementation of Brown back on your trial judges and your district judges throughout the country. And that's what prompted them to say, we will not order the implementation of Brown overnight. We will not give you any certain deadline. We will not require its implementation within six months or a year. But we will require us that you proceed with

deliberate speed. In those were the words of the court, with deliberate speed to devise plans for implementation and achieve full implementation. MOYERS: How did you do that? JUDGE JOHNSON: I doubt seriously. If the Supreme Court thought that as it has been said that there would be more deliberation than speed in certain sections of the country, which certainly there was. But when you consider the tremendous task that the trial judges, the district judges on the federal level had to implement Brown against Board of Education and sections like Alabama, Mississippi and Georgia and North and South Carolina. Then I do not think the time that it took was necessarily unreasonable looking at it as a whole in some instances it was. In other instances it was fairly rapid.

MOYERS: Do you think in retrospect, Judge, that perhaps putting so much of the burden of desegregation on the schools was the wrong way to go about overcoming the effects of all that history? JUDGE JOHNSON:No, where should the burden be if it shouldn't be on the school officials? The people that operate the schools have the primary duty to operate them within what's permissible from a Constitutional standpoint. That's what they're there for. That's where the duty belongs and that's where I always attempted to put it. MOYERS: You never liked busing as a tool of desegregation very much, didn't you? JUDGE JOHNSON: No, I did not. I rarely ever used it because when you start busing children, particularly those in elementary schools, you are putting the burden of desegregating on the children. Instead of putting the burden of desegregating or eliminating the dual school system on the school officials where it

belongs. When you make a child, our children in a school system get up at five o'clock in the morning and stand on the side of the road and wait for a bus to haul them ten or fifteen miles, past schools to which they were formally eligible to go, then I think you're doing tremendous damage. There were a hundred different means that you could use other than busing small children and little ingenuity and study and a lot of cooperation on the part of the school officials. Once you got their attention, once you got their attention, sure. Like you've heard the story about the mule trainer haven't you? Everyone in Winston County knows that mules are the most stubborn characters in the world. This fellow had a mule he couldn't train when he told it to get it up while the nule would stop. When you tell it to whoa, the mule would get up, you tell

it to gee at what haw, you tell it to haw that would gee. He finally decided he had to take it to a mule trainer. And he did, he took it across the county, left it and told the man what he wanted. The man says, sure, I think I can train you mule, leave you mule here and come back in thirty days. The man started to walk off that on the mule. And the mule trainer picked up a single tree by a piece of wood about three feet long, you know what a thing. Sure I've seen him knock the mule in the head with it. The Mule fell to his feet and the owner of the mule says, man says, I want you to train my mule. I didn't want you to beat him to death and the man said, well I haven't even started training your mule. I'm just trying to get his attention. So I did have to use some pretty drastic means to get the attention of some of the school boards. I gave 'em deadlines, I gave him some plans that were specific and simple to understand. Third and fourth grade

children could have read him and understood them. I didn't leave him any squirming room. When I was in the process and the stage of desegregation of trying to get their attention. Once I did, I found that generally most school board members genuinely attempted to implement the court orders and they did it. Well Montgomery, a school system for the largest in the state. We did it without any disruption to public education. We did it with a preservation of the public school system. We have some private schools where whites have fled, but very, very few. Not what was predicted. These decisions that were so controversial by back when I entered them. Some of them were and I readily exceeded that a while ago. But they've become accepted now. People in Montgomery, Alabama, people in Alabama, people throughout the South.

I don't think very many of them would go back to where we were before the public accommodations law was implemented. They wouldn't make Black people go to the back door of a restaurant. They wouldn't make them drive with their children along the public highways without having a restroom to go to or without having a restaurant to go to or without having a motel to stop in. We've passed that point. I don't think there are many people in this country that would want to go back. The decisions that I entered guaranteeing those rights and making certain that they were accorded, didn't meet with some public disfavor. But the people that met or demonstrated or felt that that resentment have changed. I had a man the other day that served in John Patterson's cabinet to stop me on the street.

MOYERS: Former Governor John Patterson, who was a real segregationist. JOHN JOHNSON: Outset George Wallace and beat him in 1958. I believe that was a year. Wallace said that he outset me and meaning that he cried Black or nigger to use the expression louder than I did. That's the way he defeated me. This member of his cabinet, who was a defendant and a good many of these cases, stopped me on the street. Says Judge, I want to tell you that you were right. We were wrong. Says I don't want to die without having told you that. I thought the road. So the resentment has passed no longer exists. MOYERS: Back when I first became aware of you in the 60s when I was on the White House staff concerned with civil rights legislation, I thought that Abraham Lincoln would have found delicious satisfaction in a Republican judge in the South. A hundred years later fulfilling so many

of the things he let loose as the first Republican president. Did that paradox ever occur to you or that? JUDGE JOHNSON: No, no, it didn't. I have not spent any time trying to evaluate my performance as a federal judge or my impact as a federal judge. I hope to someday, but I haven't had time to do it up to this point. Since you mentioned Lincoln, I expect he would have gotten a tremendous kick out of the fact that I have kept one of his quotes on my desk under a paperweight for 25 years, which was, it goes something like this. "I intend to do right or I have done right. I've done what I consider to be right and I intend to keep doing so until the

end. If the end brings me out all right, what said against me will amount to nothing. If the end brings me out wrong, what said 10 angels swearing I was right would make no difference." MOYERS: Great quote. You think the end is going to bring you out all right? JUDGE JOHNSON: Oh, I think it already has. I think it already has. MOYERS: Judge, we've covered a lot of territory in this first hour. Let's come back next week and finish this and talk about the 60s and the 70s and the Lord of Day. Fair enough. Great. Great. I would enjoy that. From Montgomery, Alabama, this has been a conversation with Judge Frank Johnson. I'm Bill Boyers. .

. . . . For a transcript of this program send two dollars to Bill Moyer's Journal, box 900, New York New York 101-01. Please include the program title with your request. Funding for this program has been provided by this station and other public television stations and by grants from the Corporation for Public Broadcasting, the Ford Foundation, and the Warehouse Air Company.