THAT SUMMER IN THE SOUTH
(A Memoir in the Form of a Book Review)
By Douglas A. Hedin (June 2003)
In the spring of 1965, at the end of my first year at Penn Law School, I learned that a research project would be conducted that summer by one of my law professors, Anthony G. Amsterdam, for the NAACP Legal Defense Fund. It was to be a field study of rape cases in Southern States from 1945 to 1965, designed to gather statistical evidence to prove what everyone knew intuitively that there was racial discrimination in the application of the death penalty in rape cases.
I had taken a first year criminal law course from Professor Amsterdam and had been inspired by him as only an idealistic law student could be in the mid- 1960's. I volunteered to work on the study. As field researchers, we meticulously examined the court record of each capital rape case, read newspaper articles about it, and even tried to interview defense counsel. We then completed questions in a booklet of 28 pages listing factors (race of victim and defendant, criminal background, degree of violence, etc.) that statisticians could use to reach conclusions about the influence of race in the process. I learned that Marvin Wolfgang, a renowned criminologist at Penn, had helped prepare the booklet and was one of the architects of the study. After a two-day orientation in Philadelphia in mid-June, we were given our assignments. I was sent to Jackson, Mississippi to examine appellate records in the state supreme court. From there I went to Alabama and finally to Georgia. In Alabama and Georgia my teammate was a law student from Boston University Law School, Evan Zwillman.
In Montgomery, Alabama, I met Clifford Durr and his wife, Virginia. One of our group, all law students, arranged for the rest of us to spend several afternoons with the Durrs at their home. I was vaguely aware that Clifford Durr had served as a lawyer in the New Deal but knew little else of him. Thus, I experienced a most astonishing sight as I entered the Durrs' drawing room rows of leather-bound volumes of the opinions of Associate Justice of the United States Supreme Court, Hugo L. Black. I soon learned that Josephine Black, the Justice's first wife who had died years earlier, was the sister of Virginia Durr. It was the practice of Justice Black to bind his opinions after each term and give them to family and friends. The Durrs' conversations were peppered with references to "Hugo."
One Sunday afternoon, we visited the Durrs at their summer cottage called "Pea Level" outside Montgomery. As Clifford Durr reminisced, I randomly picked one of the famous public figures of the New Deal and asked him whether he knew Jesse Jones, the wealthy head of the Reconstruction Finance Corporation. Yes, he growled, he knew Jones well and dismissed him with words which did not encourage further direct examination. From Professor John Salmond's well- written and thoroughly researched biography of Durr, The Conscience of a Lawyer: Clifford J. Durr and American Civil Liberties, 1899-1975 (University of Alabama Press 1990), I came to learn of the pivotal role Jesse Jones played in Durr's life as a proverbial "New Deal lawyer," and why Durr had such contempt for the man.
Born in 1899 to a prominent Montgomery family, Clifford Durr held all the racial and class prejudices of his time, and none were shaken by college, law school or two years as a Rhodes Scholar at Oxford, England. He was well prepared for an upper middle class life of comfort and stability---until the depression struck.
In 1933, he was practicing corporate law with a firm in Birmingham, Alabama, but after objecting to the firing of a secretary, he found himself out of work. As he was about to go into sole practice, his brother-in-law, then a United States Senator, finagled him a job at the RFC in Washington, D.C. There he toiled in obscurity but with the knowledge of accomplishment that is the lot of most civil servants, until 1940, when he became general counsel of the Defense Plant Corporation, an important but now forgotten sub-agency of the RFC which financed the construction of defense plants. It was in this post that he had a bitter confrontation with Jesse Jones. Believing that Jones was compromising the public interest in negotiating building contracts, Durr left the DPC in 1941 and accepted appointment by FDR to the Federal Communications Commission.
He lost his provincialism during his years in Washington through his work in government as well as the extraordinary friendships (Lyndon and Ladybird were two of many) and political activities of his indomitable wife. Her 1985 autobiography, Outside the Magic Circle, also published by the University of Alabama Press, may well become a minor classic in southern letters. Virginia Durr, for example, was an outspoken opponent of the poll tax, at the time one of the most divisive public issues. Her recollections of the thirties, their formative years, forms the epilogue of family friend Studs Terkel's acclaimed oral history, Hard Times: An Oral History of the Great Depression 527-29 (Pantheon 1970).
Durr served on the FCC until 1948, when he declined reappointment by President Truman. During his tour as a FCC commissioner, the Red Scare began in earnest. And it was in resisting congressional investigations of FCC workers suspected of disloyalty that Durr earned a national prominence, if not notoriety, and a towering reputation for integrity and courage.
At the end of his term, he sought employment on the faculties of several law schools, but was rebuffed because of his contentious tour of duty at the FCC. Opening his own shop in Washington, he began representing government employees accused of being security risks.
By 1954, his practice was in financial ruin, and he and his wife decided to return to Montgomery. Inevitably, controversy dogged them. On one dramatic occasion, Virginia Durr was subpoenaed to appear in New Orleans before a subcommittee of the Senate Internal Affairs Committee, chaired by Senator James Eastland, a fellow Southerner who epitomized most of what the Durrs opposed. Through a fluke, Clifford Durr was permitted to cross-examine a former communist turned professional informant. He demolished the witness who had besmirched his family's honor, subjecting the man to such humiliation and ridicule that he never again testified at a congressional hearing. And then, to top it off, Durr threw a punch at the man, an act caught by a photographer and printed in newspapers around the country. Needless to say, this incident did not help his law practice.
In the early evening of December 1, 1955, Virginia and Clifford Durr were called to help secure bail for a black woman who had been arrested that afternoon by Montgomery police officers when she refused to give up her seat on the city bus for a white man. Rosa Parks was a friend of the Durrs and had worked as a seamstress for them. Thus began the great Montgomery bus boycott, which spawned the civil rights movement and which, in turn, led me to the Durrs' home a decade later.
While he advised other lawyers who fought segregation, and though he represented blacks in several false arrest actions, Durr never thought of himself as a "civil rights lawyer." Instead, he believed that his life as a lawyer was devoted to a much larger cause, civil liberties, of which civil rights was but a part (hence the subtitle of Professor Salmond's biography). He was one of a few local lawyers supporting federal judges in the old Fifth Circuit who struck down laws requiring segregation. A recent biographer of legendary District Court Judge Frank Johnson quotes one of the judge's law clerks: "He [Judge Johnson] expected the lawyers to rally around him on these court orders, and the bar to rally around him, and they just weren't going to do it. Clifford Durr was one of the few lawyers who did try to do this, and his law practice ended up being nothing." Jack Bass, Taming the Storm 128 (Doubleday 1993).
Durr retired in 1964 and then began the surprising last chapter of his life. Graduate students researching dissertations, historians, and journalists flocked to his door. He returned to Oxford to give a series of lectures on civil liberties and his experiences as a lawyer. Although he was still something of a social outcast in Montgomery, his retirement was filled with travel and more honors than he could have imagined only a few years earlier. He died at his summer home in 1975.
His was as tumultuous a life as a lawyer can lead. Unlike most of the rest of us, he grew more liberal with passing years. Just as he came to reassess his regional values when he moved North in 1933, so we law students were profoundly changed by our travels in the South thirty years later. Always the realist, Durr cautioned that our fieldwork would have a greater impact on us than on the law of capital punishment. In my case, at least, he was right, for our death penalty study was discussed at length but rejected by then Circuit Court Judge Harry A. Blackmun in Maxwell v. Bishop, 398 F.2d 138 (8th Cir. 1968), vacated, 398 U.S. 262 (1968). And, of course, I did not see that my professional future lay not in criminal law, but in a discipline that did not even exist at that time --- employment discrimination law.
After Clifford Durr died, I wrote to his wife and told her how much I remembered and had been influenced by my work for the "Inc Fund" as well as by the time, albeit short, I had spent with her family that summer. Promptly came back a long letter yes, she remembered me and my group but I suspect that her reply was generated more by southern hospitality then actual memory. Years later, some event, I think the publication of a book mentioning our study, brought me again to write Mrs. Durr. This time, however, there was no reply, probably because my correspondence had been directed to an address from which she had long since moved. Though I did not hear again from her, I will not ever forget that Summer in the South and my first sight of "Hugo's" books.