December 1, 2019 | Season 1, Episode 3 | 32:59
Judge Richard M. Gergel, U.S. District Court, District of South Carolina
Levi: Hello and welcome to Judgment Calls. I’m David Levi, Director of the Bolch Judicial Institute at Duke Law School. My guest today is Judge Richard Gergel. He is a United States district judge in the district of South Carolina. His courthouse is in Charleston. Judge Gergel recently published a book about one of his predecessors, Judge Waties Waring. In 1951, Judge Waring wrote a stirring dissent in a school desegregation case known as Briggs v. Elliott. Judge Waring’s dissent took the position, advanced for its time, that school segregation was unconstitutional whether or not the school facilities were equal under the separate but equal doctrine. Judge Waring’s groundbreaking opinion came three years before the Supreme Court’s important ruling in Brown v. Board of Education. The Brown decision, of course, came to the same conclusion as Judge Waring had in his dissent.
The book is called Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring. It’s a fascinating account of legal change during a time of social change in American society. It’s also a very interesting look at how one judge worked to reconcile his job and his position in his community with his evolving personal and political views. Judge Gergel, thank you so much for joining us today.
Gergel: I’m honored to be here.
Levi: You first had the idea for this book, I am told, while you were awaiting confirmation to the federal bench. Can you tell us about how you got the idea?
Gergel: Well actually I became interested while awaiting confirmation and the legacy of Waties Waring who had largely escaped notice in South Carolina. He was basically erased from the modern history of our state. Lawyers, judges, no one seemed to know very much about him. Once I was advised I would be nominated for the position and assigned to Charleston, I knew a little bit about Judge Waring and I set about to learn much more. I found out there wasn’t really much out there, and what was out there really did not address what seemed, to me, the most interesting question. What led this patrician Charlestonian, eighth-generation Charlestonian to become this civil rights visionary? What had changed him? That question was actively in my mind at the time of my confirmation in 2010 and I was aware from my installation as a district judge, I’d talked about Judge Waring and I saw blank looks and looks of astonishment from my audience that there had been such a man in South Carolina.
So in 2011, I organized a one-day program on Judge Waring and the dissent that changed America. It was “J. Waties Waring and the dissent that changed America.” It was sponsored by the South Carolina Supreme Court Historical Society. We brought in numerous historians from around the country and we talked about Judge Waring. At the end of that program, I said someone needs to write a book about this guy and one that deals with this question about what changed it. That led me really to start the book.
Levi: So what changed Judge Waring? What changed his views? This is a central focus of the book, and a big part of that story is the story of Sergeant Isaac Woodard. Can you explain what his role is in this book that you’ve written?
Gergel: Yeah, like Judge Waring, Isaac Woodard had been sort of lost to history. He was a battlefield-decorated African-American soldier, came home and was discharged along with 900,000 other African-American soldiers in early 19–, late 1945 and early 1946. His date of discharge was February 12, 1946, and he boarded a bus in Augusta, Georgia having been discharged that day from Camp Gordon still in his dress uniform. And he was on a bus to travel from Augusta, Georgia to Columbia, South Carolina and then to his hometown of Winnsboro. It should have been an uneventful trip. He had not seen his wife. He was going to rendezvous with his wife he had not seen for several years because of his military service, and the bus was largely filled with other discharged soldiers that day, black and white. Sergeant Woodard got into a dispute with the bus driver because he thought the bus driver had spoken to him disrespectfully and he responded, “Speak to me like I’m a man. I am a man just like you.” Basically talked back to the white bus driver, and at the next stop in Batesburg, South Carolina, the bus driver went in search of a police officer to have Woodard removed from his bus and arrested which is exactly what happened.
While in police custody in Batesburg, South Carolina, the police chief of this little two-person police force beat Woodard and blinded him. That story eventually came out. It was not known initially, but eventually, it became a national story and was brought by the head of the NAACP, Walter White, to Harry Truman. President Truman was so outraged by the idea of a decorated, uniformed American soldier being beaten and blinded on his first day, literally on the day of his discharge, in a Southern town for obviously racial reasons, he essentially ordered the Justice Department to prosecute this white police officer which was very unusual at the time. It brought about a predictable result. An all-white jury quickly acquitted the chief of police Lynwood Shull. Judge Waring, just by happenstance, was assigned the case.
Levi: He was the trial judge.
Gergel: He was the trial judge and he was, before the trial, somewhat skeptical, maybe even a lot skeptical, about the role of the federal government in prosecuting a local police officer, but nonetheless at the trial, hearing Woodard testify, an obviously blinded soldier describing in detail what had happened, he was outraged and he had no doubt the whole story was true. And when the jury quickly acquitted after 28 minutes of deliberations, quickly acquitted the police chief, Judge Waring was horrified. He was conscience-stricken by this unjust result and it just destroyed the illusion he had that he was administering a just system.
His wife was in the courtroom for the trial. It was tried in Columbia. He was based in Charleston. So she’d come up for the day and neither of them had ever had any particular interest in the issues of race and justice, but this moment captivated both of them and they were never the same. They together traveled this journey and I talk about the wife a good bit and he begins issuing landmark civil rights decisions. You mentioned Briggs v. Elliott. That’s the last of a whole series of decisions in which he … Another notable one was declaring the South Carolina white primary unconstitutional which opened the door for thousands of African-Americans to vote. He was roundly vilified for that, had a cross burned in his yard. He was probably the most vilified man in the white South during those years. He required 24-hour U.S. Marshal security. There were reliable reports that there were going to be assassination attempts. There were efforts to impeach him.
He was the first of the great Southern civil rights judges. There would later be other judges, most of them Eisenhower appointees: Frank Johnson, Tuttle, Wisdom, and Brown on the Fifth Circuit. 1946, ’47, ’48 up until 1951 and the great dissent in Briggs v. Elliott, Waties Waring was out there all by himself. He was a complete outlier in the federal judiciary. I came to conclude that this case was sort of that moment for him of enlightenment and to send him on a journey in which he basically developed the theory that became Brown v. Board of Education. That is that any government-mandated segregation is per se a violation of the United States Constitution. You need not look about whether the facilities are equal or not because segregation is per se inequality. That comes from the great dissent.
Levi: So going back to the story about Isaac Woodard, this tragedy that occurred, how were you able to discover this connection between Judge Waring, that trial, that very unjust conclusion, and then the change that occurred to Judge Waring? Were there personal papers? How did you make that link?
Gergel: Well initially, I had access to his calendar. The national archives has all the court records. So I was able to go through his docket. I knew in 1947, he issued the first of the two white primary decision. So it was clear by that moment he had changed, and I found a personal letter he had written in about 1945 in which he advocated racial gradualism. That is that the government and the court should not be really involved in changing the South, but it needed to be changed, but it needed to be done slowly, gradually led by sort of the betters of the South such as himself. So 1945, he’s saying, “I’m a gradualist,” and in 1947, he’s anything but a gradualist. He’s ordering the South Carolina Democratic Party to allow African-Americans to vote, which was a truly radical position in South Carolina at the time. So I knew that time period is when something happened.
I looked at his docket and there was this very unusual case, United States v. Lynwood Shull, prosecuted by the Department of Justice. I read a little bit about it. I realized very quickly it had been quite a national story at the time, and I communicated with Dr. Patricia Sullivan who had written sort of the definitive history of the NAACP. I asked her, “What do you know about the blinding of Isaac Woodard?” And she said, “Oh, my goodness. That’s quite a story and no work has really been done on it.” And there are thousands of papers at the National Archives, the Library of Congress. The NAACP papers are the largest collection of papers at the Library of Congress. It’s four million documents. She said, “I went through it very quickly, but there is a lot there.” So I went up and learned a lot about this case and the role of the NAACP in promoting this story and learned of the story of President Truman’s involvement. So I had this working hypothesis that this was the case, and in an oral history Judge Waring gave late in life, he was asked about this case. Columbia University had done this interview with him, and he described the case as his wife’s baptism in prejudice.
Gergel: I thought that was pretty stunning statement. Late ’50s, he makes that statement. That reinforced my hunch that this was it, and then a couple years into my work, I had a pretty strong conviction this was true. Someone gave me an oral history interview of an African-American woman by the name of Ruby Cornwell who had been … She was the matriarch of the Charleston civil rights community and very close with the Warings. In the interview which went on for quite a while, she was then almost a hundred years old, she’s telling the interviewer about Judge Waring and then she just says, “Now, you know what changed him, don’t you?” I’m listening to this tape. She says, “It was that Negro Sergeant. He told me.”
Levi: That’s interesting.
Gergel: “He says, he told me it was his personal baptism of fire.”
Levi: Oh, that’s just incredible. You point out that Waring, he did not come young to the bench. He was in his early sixties when he became a U.S. district judge, and his personal life was upended because he got divorced from his then-wife and the two of them had been very established longterm couple in that community and he very quickly remarried the woman that you’ve been referring to who was from the North and had her own baptism in fire. You describe how the two of them then began a program of reading and learning about the race crisis in America and they matured and they changed themselves. Could you talk about that a little bit?
Gergel: At the time when the Warings came back to Charleston in November of 1946 after the Shull trial, they were deeply moved by this issue, but they could not, you could not have an honest conversation on race in Charleston among white people in 1946. They were really an island unto themselves. So they decided that they would teach themselves more about this subject, and there was a lot of interesting literature that was coming out in the postwar period and they began reading it. You’ll recognize this, Judge, that you come home from work at the end of the day and you’re so tired, you don’t want to read. Judges, that’s a very common complaint — you’ve just been reading all day. Well, Judge Waring had that.
So they establish a practice that he and his wife would read books together and when he came home at night, she would read a chapter to him out loud and then they would drive around Charleston talking about what they had just read. They did this night after night, week after week, month after month, and basically self-taught themselves. People ask me, “Well what did they read?” Well, they read WJ Cash, Mind of the South, a very interesting book of that era, which had a very harsh view of slavery. The sort of pop review was it had been sort of a benign institution, very nurturing to the slaves. Well, WJ Cash considered it a brutal, harsh, terrible institute based on violence. It was a harsh critique of the South and the Southern way of life. The Warings read it together. Judge Waring would later say it was tough medicine.
He then, he and his wife read Gunnar Myrdal’s The American Dilemma. This was a study conducted by the Carnegie Foundation, funded by the Carnegie Foundation to be an honest assessment of race in America in the postwar era. To get a broader perspective, they asked this Swedish scholar, Gunnar Myrdal, who was an economist and a sociologist to be the lead author. The book was 1400 pages long. It is an extraordinary piece of work today. Gunnar Myrdal would later be awarded the Nobel prize. He was a remarkable person and Judge Waring and his wife were completely captivated by Gunnar Myrdal’s assessment of the South. They read every page of that 1400-page book, and when they finished, there was no turning back.
Levi: And part of their transformation that you described is that their social friends changed. They had been in the elite white society of Charleston. In part because of his divorce and part because of his decisions in some of these cases, they were ostracized and they began to make new friends, many of whom were African-American.
Gergel: Yeah … We haven’t talked much about Harry Truman. I’m glad to talk about him as well, and because both of them are very important characters in this book, naturally you would contrast the two. Harry Truman is enormously important. His decision to desegregate the military is the beginning of the end of Jim Crow in America. He is very inspired by the Woodard event and I traced that, but he never really felt comfortable socializing with African-Americans. There was a talk of that era that, “I believe in political equality but not social equality,” which was code word, “Black folks ought to be able to vote, but I don’t really want to eat dinner with them.” Judge Waring did not have that view and he embraced and developed close friendships.
Among his closest friendships with African-Americans, I mentioned Ruby Cornwell who was the matriarch of the Charleston civil rights community. The Cornwells and the Warings were very close. Septima Clark, who was an activist teacher in the Charleston school district who would later be fired for her political activism, would eventually be a key person in Dr. King’s organization. Dr. King called her the queen mother of the civil rights movement. Well, she was very close with the Warings. I mean I have a picture in the book of Septima Clark sitting next to the Warings at dinner in their home. But perhaps the most interesting friendship was Judge Waring and his wife’s friendship with Walter White and his wife who, like the Warings, both Walter White, who was the executive secretary of the NAACP and was the most important civil rights leader of his day in the ’30s and ’40s and into the early ’50s, he leaves his wife for his mistress. Judge Waring leaves his wife for his mistress, and in both of their worlds, their friends ostracized them.
The NAACP was socially very conservative, very loyal to Walter White’s wife. So these two couples who had sort of been ostracized from their friends became very close themselves. And when Judge Waring … Judge Waring would go to New York every year for a month to help with the backlog of cases in the Southern District of New York, and they would spend most nights with the Whites. They were very close. Walter White was a fierce, fiercely loyal to Judge Waring and Walter White was very close to Harry Truman. When Judge Waring issues his white primary decision, the next day it is hand-delivered by Walter White to Harry Truman. I mean it is really interesting this relationship. When Judge Waring’s house is attacked, cross burned in the yard, Walter White is on the phone with the attorney general. They become the best of friends. When the Whites, they go to England to marry, hugely controversial both in the white and black community when Walter White marries a white woman, the first people they tell of the marriage are the Warings.
Levi: In the book, you do this wonderful job of showing the progression of these cases before Judge Waring. It starts with the [Woodard] case and then he was so interested in civil rights cases that he handled several school-type cases where the question was whether they were actually equal under the separate but equal doctrine.
Levi: And then he had the white primary case and that was a huge case in the following … Well they were all big cases, but those separate but equal cases, the community kind of accepted them, it seems.
Gergel: Correct. And let me say even before those, the practice was separate and unequal, right? The doctrine was supposed to be separate and equal, but it was separate and unequal. So the initial efforts of the NAACP when it was having such a tough slog through the court was to turn the Plessy doctrine on its head and say, “Okay. We’ll accept separate, but you must make it equal.” Charles Hamilton Houston and Thurgood Marshall, the counsel for the NAACP, were confident the South could not afford equality, and eventually, Jim Crow would collapse. That was sort of the thought. So the initial cases, as you describe, really are trying to enforce the equality provision of the Plessy doctrine. And actually, before the Woodard case, there are two teacher equal pay cases that, under normal circumstances, should have been easy cases. That is African-American teachers were paid about 30% less than white teachers. There was actually a Negro salary schedule literally that would separate black and white teachers. Waring received … Really the first of his civil rights cases — which really predated Woodard — came to him with a very powerful precedent.
There had been a similar case in Virginia that John J. Parker, the chief judge of the Fourth Circuit who was the most eminent jurist among Southern federal judges, had issued in 1940 or ’41 his very clearly stated decision that, under the Plessy doctrine, you cannot differentiate on the basis of race. So it came to Judge Waring with this powerful on point Fourth Circuit precedent, and he enforced that precedent. As you described, there really isn’t much kickback to it because he wasn’t really challenging the racial status quo. He also ordered the University of South Carolina Law School to either admit African-Americans, close the law school, or to create a separate but equal law school. Of course, South Carolina chose the last of those options, creating an entirely new law school to avoid desegregation. That case did not get too much attention though it certainly was compatible with the Plessy doctrine, but it was issued literally on the same day as Elmore v. Rice, the white primary case, which, as you described, really got everyone’s attention.
The problem with the white primary case was unlike issues of separate facilities. There was no middle ground for voting. You either voted or you didn’t vote. There was no way to split the difference. Judge Waring recognized that his obligation under the 14th and 15th Amendments were to allow African-Americans to vote. Anybody who knows a little constitutional history knows that earlier there had been a U.S. Supreme Court case, Smith v. Allwright out of Texas, which declared the Texas white primary case unconstitutional. Every Southern state at the time Judge Waring got his assignment and the white South Carolina white primary case had agreed at least on paper to allow African-Americans to vote in the Democratic primary.
South Carolina was the last hold out. The governor had called a special session of the General Assembly to revoke every statute associated with the Democratic primary. It was highly regulated by statute and upon the repeal, declared there was no state action and thus beyond the reach of the constitution. Judge Waring saw that as complete ridiculous argument. You couldn’t delegate such an essential government function, and that is the case that really separated him from the white community in which he lived because he had recognized the right of African-Americans to vote.
Levi: And that case is what led to threats of violence, I think a cross burning in his yard, and he was ostracized, but it was a scary time for for him and his family.
Gergel: Oh, there was really a second case, Brown v. Baskin. This had not been widely discussed before in anything I’d ever read. This one, I really think, is the greater and more important decision because shortly after he issued his order directing the Democratic Party to allow African-Americans to vote, the party changed a rule that said African-Americans could vote if they pledged their support to segregation. Surprise! There was a new lawsuit and that lawsuit named all 93 members of the Democratic Party’s executive committee. Judge Waring summoned the entire executive committee to his courtroom in Charleston, packed that room in an emergency hearing, and scolded party leaders for violating … These were the political leaders of South Carolina. We were a one-party state. He scolded them for violating a federal court order and stated that a federal judge faced with contempt could impose a fine or a jail sentence. He wanted those present to know that if there were any further violations, there would be no fines. That is what alienated him completely from the white community in Charleston.
Levi: You do a very good job of showing that at some point the judge, he made a transition in his views on race and that’s so interesting and that’s really what the book is about. At some point probably after the separation of him from the community in the way you described, he became an advocate. Maybe that’s too strong, but there were elements of advocacy and I think for a modern judge anyway, that kind of advocacy feels uncomfortable. What I’m thinking of in particular is at some point he brings Thurgood Marshall and some of the other lawyers who were involved in the Briggs case into chambers and kind of tells them how to try their case.
Gergel: Actually it was Marshall all by himself in a private-
Levi: It was Marshall all by himself? I’m interested in your reflections on that. You address this in the book because it’s very noticeable to judges, let’s say, of our generation.
Gergel: Yeah. Let me just say that that history of that chambers encounter was captured in an oral history interview of a reporter by the name of Alexander Rivera who actually lived at Durham and whose father was the head of the North Carolina NAACP. He was a reporter and basically traveled with Marshall and was a very close friend, a fraternity brother of Marshall, very close. And he was literally standing outside Waring’s office when Marshall came out and he recounted that the judge told him, “I’m not trying any more separate but equal cases. Bring me a frontal attack on segregation,” and Marshall was surprised as I think any of us would be. I will say in 1950, November of ’50 when this occurred, the lines of demarcation between attorneys in a case and the judge were certainly not as pronounced as today. You and I, both having served as district judges, would never let somebody back in our chambers and tell them, say anything to them, less tell them how to try a case, but times were more relaxed then.
But even in those relaxed times, this was a pretty stunning thing. I say in the book that Waring was a pioneer. He was plowing a field for the first time and he didn’t get everything right, and this was one of the things he didn’t get right. He should not have had an ex parte communication with Marshall. You and I both know you can have a situation where the parties have not addressed what you think is an important issue in your case, and you can say in a hearing or in an order that the parties need to address a particular issue. You can do it without doing an ex parte communication. There’s nothing wrong with it. It’s done all the time, but Judge Waring didn’t pick that path. He had a vision. He had figured out a way to overturn Plessy. A good bit of this book talks about how he figured it out.
Gergel: Some of the great leaders of the law and in government at that time were trying to figure out how do you untie the Gordian Knot of Jim Crow. Folks at the leading law schools and US government in the Justice Department, in the judiciary, in the Supreme Court were all trying to figure it out. And here was this guy, a patrician, eighth-generation Charlestonian whose father was a Confederate veteran. He’s the one who figures it out, and once he figured out how to do it, he was telling Marshall how to do it. And in fact, that’s what Marshall did, abandoned his incremental approach to go for the fences in this case. Alas, it worked. You might not be surprised that in front of judiciary groups and legal groups, this is a common question. I put it all in the book. I wasn’t trying to cover … I think we need to tell the whole story, and sometimes great cases might be like a sausage factory. You don’t really want to know how they make it.
Levi: I think that may be right. He wasn’t perfect. He was under intense pressure and it was an extraordinary time, and I think you evaluated very fairly in the book. Well talking about … You just mentioned that you’re often in front of judges talking about the book and I’m sure they’re intensely interested in it. What kind of reaction do you get from your colleagues about this incredible story?
Gergel: The response has been overwhelming interest and enthusiasm about the story because it talks about judicial courage and the obligation to do the right thing. Judge Waring knew when he issued his decision in the white primary case that his life would never be the same. He told his wife, “If I rule for the plaintiffs in this case, what we know as our lives will never return.” He did it with his eyes open. They give district judges and federal judges life tenure for a reason, that they can do the right thing, uphold the rule of law without fear of losing their jobs.
Judge Waring, at great personal expense, his interactions with lifelong friends in Charleston and in South Carolina, the danger he faced, he faced a real danger of assassination there. He had 24-hour U.S. Marshal security because of that. He did it because he thought it was the right thing and judges really respond to that. They understand that every day they’re out there upholding the rights of some of the least desired people in society, right? Criminal defendants who have committed terrible crimes and judges are asked and do consistently uphold the rights of those criminal defendants. So they recognize the importance of judicial independence and the rule of law and they respond to this story. They recognize Waring was not perfect, but they recognize he was a legal giant.
Levi: It must be very gratifying to you to think that you have been able through your work here in this wonderful book to extend Judge Waring’s influence over time and in effect rediscovery of him because as you pointed out, so little was known about him and he deserved to be known. That must be a source of great personal satisfaction.
Gergel: Well I don’t want to sound too altruistic, but I really felt an obligation to tell the story once I figured it out. I mean basically I am retelling the story of Brown v. Board in a way which I think is far more accurate than the history of it sort of comes out of the NAACP’s national efforts. It’s sort of antiseptic. It was a bunch of capable lawyers sitting there and the system just responded. Thurgood Marshall and Charles Hamilton Houston were among the greatest legal talents this country has ever produced. I don’t want to take anything away from them, but the story is more nuanced than that. It is more complicated than that.
I think what I get is great satisfaction in sort of the way this came out from the foundations of the federal court and the lowest courts, the district courts and from people of humility, the plaintiffs in Briggs who showed, as Judge Waring described, they showed an example of courage. That’s the real story here and the triumph of the rule of law, but I think it’s a story for our times about how important what we do is in the federal judiciary and how important it is to uphold the rule of law.
Levi: In this podcast series, Judgment Calls, as we conclude, I like to ask the judge that I’m interviewing if they have a judicial hero and what are the qualities, the critical qualities that make a good judge.
Gergel: Well, when one thinks about when he uses the term hero, you think about some unqualified perfect person and there is no such person of course. I do regard Judge Waring as a heroic figure. I consider the work of the NAACP lawyers heroic. I consider the advocacy groups that stood up against Jim Crow to have been incredibly courageous. I admire the Warren court for what it did in Brown which took remarkable skill and courage and the way Chief Justice Warren guided the justices to a unanimous decision which was maybe one of the singular acts of a chief justice ever in American history. So I have a lot of heroes in this story. I’m an admirer of this post-World War II generation which really, after the triumph over Hitler and the Japanese empire, came back and addressed what were obvious imperfections in America’s social system. It showed the resilience of American democracy, and you just can’t tell the story without recognizing the central role of the courts in helping America achieve its greatest aspirations.
Levi: Judge Gergel, what a pleasure it has been to talk with you. The book is Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring. Thank you for joining me today. I’m David Levi.
Voice: Judgment Calls is produced by the Bolch Judicial Institute at Duke University. Find us online at judicialstudies.duke.edu.