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13. Forming the Historic Fifth Circuit: Nine Men
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128 chapter thirteen Forming the Historic Fifth Circuit: Nine Men When Elbert Tuttle returned to Atlanta to assume his seat on the United States Court of Appeals for the Fifth Circuit, he expected to serve out his years in peace and quiet. The Fifth Circuit had long been one of the busiest federal circuits in the nation. The work of the judges was steady, but it was not heavy, and it was carried out at the judge’s pace in the isolation of his chambers. Tuttle joked to friends in D.C. that he was going home “to retire” to the court. Instead, he found himself at the epicenter of one of the greatest social upheavals in history. The men he served with, especially during his term as chief judge, from 1960 to 1967, would be called upon to make the great majority of the critical judicial decisions during the determinative years of the civil rights revolution. They would decide whether Jim Crow lived or died. Tuttle moved into chambers on the third floor of the federal courthouse in Atlanta, a six-story building with massive stone walls that occupied an entire city block. A door from Tuttle’s secretary’s office led to a small robing room that itself led directly into the impressively appointed third-floor courtroom. His first day on the bench, Monday, October 4, 1954, did not begin auspiciously. Just before 10:00, Tuttle joined the chief judge of the circuit, Joseph C. Hutcheson Jr. of Texas, and Judge Richard Rives in the robing room. Judge Hutcheson had been in Atlanta for arguments the week before, but he had confined his interaction with Tuttle to the briefest of introductions . In the robing room, Hutcheson had nothing to say to Tuttle until, as they prepared to enter the courtroom, he tossed a curt direction over his shoulder. “Tuttle,” he called back, “you go last.”1 Chief Judge Hutcheson had been first appointed to the federal district court in 1918 by President Wilson and then elevated to the Fifth Circuit in Forming the Historic Fifth Circuit » 129 1931 by President Hoover. He had become chief judge in 1948. A dyed-inthe -wool Texas Democrat, Hutcheson was proud of having been appointed by a Republican president, but that was the extent of his appreciation of the Republican Party. He loved the court, and he wasn’t particularly impressed by the new judge. Hutcheson had authored books and law review articles, had barely missed out on an appointment to the Supreme Court (which went to Hugo Black), and was highly regarded as a legal scholar.2 He saw in Tuttle the highly political Republican appointment of a tax lawyer, a specialization that to Hutcheson did not indicate intellectual breadth or depth. As chief, Judge Hutcheson ran things his way. “He didn’t pay all that much attention to formalities,” Tuttle recalled. “No one did.” Once when the court had been sitting en banc in New Orleans, the judges adjourned to lunch together at a local eatery, Mike’s on the Avenue. As they left the restaurant, Chief Judge Hutcheson, referring to the requirement that the circuit hold a judicial council meeting twice a year, announced, “Well, the law requires us to hold two meetings a year. That was one of them.”3 For his part, Tuttle found Hutcheson to be “an interesting judge, very bright, well read.” Tuttle brushed aside Hutcheson’s lack of warmth, even after an incident later that week, when Tuttle suggested to Hutcheson that he call him Elbert or Tut. “I wouldn’t think of it,” Judge Hutcheson replied. “First thing I know, you’ll be calling me Joe.”4 Presumably, Hutcheson held everyone at arm’s length. Two years later, in 1956, he sent a thoughtful and affectionate three-page handwritten note thanking the Tuttles for their part in a fiftiethanniversary gift the judges and their wives had given the Hutchesons. The salutation is “Dear Judge and Mrs. Tuttle,” and he closes with: “I take the greatest pleasure in signing myself Most sincerely your friend, Joseph C. Hutcheson.” Remembering those early days, Sara Tuttle was less circumspect than her husband. “Judge Hutcheson was ugly to us when we came on the court,” she remembered. “He thought the Eisenhower appointees were ruining his court and he didn’t like anything about us.” Nor was Mrs. Hutcheson welcoming , Sara felt. High spirited and outgoing, Sara thought good social relations were important to good working relations, and she...