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The civil rights bill would also provide for a new Assistant Attorney General to handle civil rights cases and would set up a six-member bipartisan commission with subpoena powers to conduct a two-year study of civil rights. But it is around the provision granting the Attorney General the power to file civil suits that the storm of criticism and reply has blown up. Arguments:
THE SOUTH: The clause giving complainants the right to bypass local administrative agencies and state courts and go directly to federal court on rights violations "nullifies state law."
THE JUSTICE DEPARTMENT: If state laws are in opposition to valid federal laws, they are nullified under the U.S. Constitution, and the sooner the matter is adjudicated, the better for all concerned.
THE SOUTH: The Attorney General would have the right to burst into all sorts of situations where he has no business, harass and thus drive from public office state or local officials whom he might suspect and, in a sense, have the unthinkable power of actually making laws. Example: he could get a court order breaking up a White Citizens' Council meeting.
THE JUSTICE DEPARTMENT: The Attorney General could act only where existing civil rights statutes were violated (or where he could show "reasonable grounds" for believing that they were about to be violated). White Citizens' Councils could certainly continue to meet and could even plan and carry out economic boycotts.
Gone with the Jury. It is on an issue developed by North Carolina's respected Democratic Senator Sam Ervin Jr., onetime judge on his state's Supreme Court, that the Southerners have built their first line of defense. As a member of a Judiciary subcommittee conducting hearings on the civil rights bill, Ervin began asking questions about "the abolition of trial by jury." This, he argued, would result from the civil contempt citations against persons disobeying the courts' injunctions under the new bill. It would, cried Ervin, be a "tragic error to attempt the protection of civil rights for any one group through a process which denies a liberty equally precious—that of trial by jury. The Administration's civil rights proposals will do exactly this."
Sam Ervin's trial-by-jury slogan was taken up by Southern newspapers. Indeed, the issue worried many who were otherwise friendly to civil rights. Yet the contempt citation is the judiciary's historic enforcement tool. Jury trials in contempt cases have absolutely no basis in equity or constitutional law and precious little legislative sanction.* As early as 1894, the Supreme Court wrote: "Surely it cannot be supposed that the question of contempt of the authority of a court of the U.S., committed by-a disobedience of its orders, is triable, of right, by a jury." North Carolina Supreme Court Judge Ervin himself on four occasions upheld the right of the courts to try for contempt—without juries.