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Turmoil. Ervin's judicial career was briefly interrupted in 1946, when he was urged to run for the congressional seat held by his younger brother Joseph, who, suffering from painful osteomyelitis, had committed suicide. Ervin agreed only on condition that he would not seek reelection; he preferred to stay in North Carolina. That preference was abandoned again in 1954, upon the death of one of the state's most colorful Senators, Clyde Hoey. Governor William Umstead insisted that a reluctant Ervin replace Hoey.
The new Senator arrived in Washington at a highly emotional time—and was sworn into office by Richard Nixon, then Vice President. The Senate was in turmoil over what to do about the rampaging anti-Communist antics of Wisconsin Senator Joseph McCarthy and the Supreme Court's Brown decision ordering the desegregation of public schools. Ervin soon became embroiled in both battles.
Senator after Senator timidly turned down the thankless task of serving on the committee that would consider whether McCarthy should be censured. Lyndon Johnson, then minority leader, turned to Ervin because of his background as a judge. Ervin served on the committee and wholeheartedly advocated censure after hearing the evidence. His first major speech on the Senate floor denounced McCarthy for his "fantastic and foul accusations." Ervin declared that McCarthy should be expelled because he was afflicted with either "moral incapacity" or "mental incapacity." After the Senate censured McCarthy, L.B.J. told Ervin: "You showed that you don't scare easily."
Nor did Ervin shy from carrying the banner of Southern states against school integration, expanded voting rights and opening public accommodations to blacks. His arguments were based on a higher intellectual plane than those of most Southern Senators, but this seemed a blind spot in his general devotion to individual rights. He held that the Supreme Court should never have taken up the Brown case, that it was legislating rather than interpreting. He could never see how federal law could force the owner of a hamburger stand to serve everyone, on the assumption that the seller was engaged in interstate commerce. In Ervin's view, busing white children from neighborhood schools deprives them of their rights in the vague hope of helping blacks. Ervin contended that the Government has no power to require such acts.
In a sense, Ervin has been consistent in his limited view of federal authority. Some of his scholarly critics complain that Ervin's Constitution seems to lack a 14th Amendment, which provides for due process and equal treatment under the law. Ervin now concedes that, under the 14th Amendment, a constitutional case can be made for dismantling dual school systems, but he still insists that it provides no power to compel schools to integrate.