A Rift in the Clouds: Race and the Southern Federal Judiciary, 1900-1910 (review)

Historians agree that the turn of the last century represented a nadir in southern race relations. African Americans were disfranchised in state after state, likewise suffering segregation and legally sanctioned discrimination, violence in the form of "whitecapping" and lynching, the prevalence of the convict lease system, widespread peonage, and the ubiquitous crop lien system. The triumphs of a generation of Democratic demagogues made it difficult for other whites—Democratic moderates, Republicans, or Populists—to present alternatives to the relentless persecution of blacks.

Yet members of these groups did present what historian C. Vann Woodward identified in The Strange Career of Jim Crow (1955 and subsequent editions) as "Forgotten Alternatives." One of the latter was paternalistically racist, based upon several considerations: (1) acceptance that the Civil War and Reconstruction had given African Americans a new legal status; (2) a sense of responsibility for former slaves; (3) the hope that black voters could help to establish stable post-war governments; and (4) the expectation that none of the above would threaten existing racial hierarchies. These paternalists tended to be former Confederates; many of them were lawyers or judges. Commentators have often ignored the law's impact upon patrician thought. But with the publication of Brent Aucoin's A Rift in the Clouds it is possible to begin to view the New South's conservative reformers through the prism of law.

Aucoin has written an insightful book analyzing the careers of three federal judges: Jacob Trieber (Eastern District, Arkansas, 1900-1927), Emory Speer (Southern District, Georgia, 1885-1918), and Thomas Goode Jones (Middle District, Alabama, 1901-1914). Two of these (Jones and Speer) were ex-Confederates; Trieber and Speer were Republicans, while Jones was a lifelong Democrat. All three were celebrated (or reviled) for fighting peonage, mob violence, and denials of due process. In doing so they relied upon bold applications of civil rights laws and the Civil War amendments to the Constitution—at a time when the U.S. Supreme Court was ignoring the rights of African Americans and turning the 14th Amendment in particular into a bastion of defense for corporations.

Aucoin's judges, however, went against the trend, attempting to expand constitutional prohibitions against lynching, unreasonable prosecution, and unjust imprisonment. The three had their greatest (if hard-fought and limited) successes in combating peonage. Each of the judges has attracted the attention of scholars; but Aucoin places them in context, showing that they were willing to exchange news, advice, and encouragement. Modestly but persuasively, he ascribes their behavior to the convergence of personal, religious, and professional factors. This reviewer wishes he had spent more time on the values and thought processes inculcated by the practice of law—on the values evident, for example, in Alabama's 1887 code of legal ethics, authored by Jones. But this is a minor quibble, perhaps a matter for Aucoin's future works. For the present he has given us an exciting glimpse into what Carl Degler has called the "Other South," in the form of three judges whose opinions anticipated, to some extent, the constitutional interpretations made by Judge Frank M. Johnson and other heroes of the Civil Rights era.