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Z 199 Z chapter 20 Ike’s fIfTh CIrCuIT Getting On with the Job at Hand When most people think of legal appeals in the federal system, they think of the U.S. Supreme Court. However, between 1954 and 1965 the Supreme Court rendered voting rights opinions in only two cases. Policing the hosZ tility to civil rights of many of the Deep South’s federal trial judges was left to the United States Court of Appeals for the Fifth Judicial Circuit. For even small steps toward black voting rights or integrated education, that court had to act forcefully on behalf of the Constitution. In 1962—indeed since 1929—the intermediate appellate level of the fedZ eral judiciary was divided into eleven geographic circuits. The Fifth, just increased from seven to nine judges, covered Texas, Louisiana, Mississippi, Alabama, Florida, Georgia, and the Canal Zone. The three great Eisenhower appointees to that court came from Atlanta, Houston, and New Orleans. They were successful younger lawyers who took on what they called the “PostZOffice Republicans”—the supporters of Senator Robert Taft, in GeorZ gia, Texas, and Louisiana, the hangersZon angling for the patronage posiZ tions available in every federal administration when their candidate won the presidency. And take them on they did. With the assistance of William Rogers, they persuaded the Credentials Committee of the 1952 Republican National Convention to seat them as delegates, and they in turn helped put Eisenhower over the top in Chicago. In 1953, John Minor Wisdom, fun loving and socially prominent in New Orleans, was first of the three offered the chance to sit on the Fifth Circuit. He didn’t take it. Then Louisiana’s Republican National Committeeman, he preferred to remain in private practice and enjoy helping to dispense the state’s patronage. Elbert Tuttle got the job, as Wisdom knew he would. A decorated World War II veteran, Tuttle had twice been wounded in handZtoZhand combat in the South Pacific.1 He had grown up in Hawaii, where his IowaZborn father had moved from Los Angeles to work for the Ike’s fifth Circuit: getting On with the Job at hand Z 200 Z Sugar Planters Association. Elbert entered Honolulu’s Punahou School, well known to mainland college admissions directors and now better known to the national public as Barack Obama’s alma mater. Tuttle went on to Cornell both as an undergraduate and for law school. His mother’s father was an Iowa soldier in the Civil War who had been confined for eighteen months in the notorious Confederate prison in Andersonville, where alZ most one inmate out of three died in captivity from starvation, disease, or abuse. As a lawyer in Atlanta practicing with his brotherZinZlaw, Tuttle became identified with unpopular cases. In Johnson v. Zerbst,2 the Supreme Court held that Tuttle’s client, a criminal defendant, had not waived his Sixth Amendment right to counsel simply by acquiescing to a trial without counZ sel. Tuttle had taken the appeal to the Supreme Court on his own, withZ out any help from the American Civil Liberties Union after the Court of Appeals stage, and he got a marine sergeant’s conviction reversed. Those recommending Tuttle to the president, including Wisdom, certainly knew that. By the late 1940s, Tuttle had become a leader of the Atlanta and Georgia Bar. He chaired Georgia’s Republican state party following the 1952 conZ vention and introduced General Eisenhower at a big rally in Atlanta, held out of doors because Georgia law forbade whites and blacks from meeting together indoors. It was Bob Woodruff, president of Atlanta’s dominant enterprise, CocaZCola, who introduced Tuttle to George Humphrey, Ike’s secretary of the treasury. That led to Tuttle’s becoming Humphrey’s general counsel in Washington. He told the secretary he would stay for two years, and it took both Wisdom’s persuasion and two calls from Rogers, who had become deputy attorney general, to get him to break that commitment and go on the court. Tuttle told a friend he was “retiring” to the Fifth Circuit. Little did he know. Texas was due for the next appointment. John Brown was a successZ ful admiralty lawyer who had come from his native Nebraska to Houston via the University of Michigan Law School. He brooded about whether to become “a federal employee,” as his wife put it, and consulted his fellow Houstonite Judge Hutcheson, a longtime member of the court. Brown won Hutch’s praise when he told...

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