Katherine Graham’s Connections with Harry Hopkins and Edward B. Burling

As the owner and publisher of the Washington Post in the current move, “The Post,” Katherine Graham, as played by Meryl Streep, is an important participant in the real-life drama of the Post’s publication in 1971 of the Pentagon Papers. The film also has glimpses of her involvement in the Washington social scene, including  friendships with John F. Kennedy and Jacqueline Kennedy OnassisRobert F. KennedyLyndon B. JohnsonRobert McNamaraHenry KissingerRonald Reagan, and Nancy Reagan among many others. Below are photographs of Graham herself and of Meryl Street as Graham.

Graham’s memoir, Personal History from 1997, mentions her connections in 1941 with Harry Hopkins (HH) and Edward Burling, both Grinnell College alums.[1] Their photographs are below.

Harry Hopkins
Edward B. Burling

 

 

 

 

 

U.S. Preparation for War, 1941

In or about late May 1941 Katherine’s husband, Phillip (“Phil”) Graham, was finishing clerkships for U.S. Supreme Court Justices Stanley F. Reed (1939-40) and Felix Frankfurter (1940-41) and finding his next position in the midst of the increasing threat of the U.S.’ becoming involved in what became World War Ii. In that search Phil met with Robert Lovett, then Assistant Secretary of War for Air, who suggested Phil see about working for HH, who was President Roosevelt’s principal assistant.

That June Phil met with HH, who was in failing health, at his bedroom/office in the White House. HH immediately asked, “Why the hell aren’t you in the Army?” Phil responded that the Head of Naval Intelligence had advised him to wait a few months before deciding how to become directly involved in the war effort. Eventually HH suggested that Phil talk with Oscar Cox about working for him at the Lend-Lease Administration while spending three days a week with HH.

Phil already had tentative arrangements to work for Cox and did so shortly thereafter. Cox said that working directly for HH probably would not have worked out. According to Cox, “HH was a peculiar cuss, worked very irregularly, and probably would never get a real assistant.”

While at Lend-Lease, apparently in August 1941, Phil (age 26) and Joe Rauh, Jr.,(age 29), the latter of whom later became a prominent civil rights lawyer, sent a memo to President Roosevelt advising immediate and significant increases in U.S. production of bombers for the war. HH immediately responded: “You shouldn’t bother the President with things like this and besides it isn’t true.” Phil and Joe were worried that their Washington careers were over so they went to see Bob Nathan, director of research at the Office of Production Management and learned that U.S. production of bombers was even worse than they had thought.

That same summer, on a Sunday afternoon, Phil and Katherine went for lunch at the Virginia log cabin owned by Burling. Also present was Robert Patterson, the Undersecretary of War, and according to Katherine’s memoir, “the arguments on preparedness were being waged at the top of everyone’s lungs. Of course, I worried that Patterson was unused to this mode of discourse and would think that everyone arguing was insane, and when we got home I told Phil that their manners in front of this august figure had been appalling.” (Emphasis added.) Whose manners was she referencing? The Burlings? Everyone at the gathering except for Mr. Patterson?

Personal Involvement with Mr. Burling

In the Fall of 1959 while attending the Washington Semester at American University  I called Mr. Burling to thank him for his generous donation to Grinnell College for its new library that is named in honor of his mother.  At his invitation, I joined him at his law firm for an enjoyable conversation over coffee and then after being picked up by his personal chauffeur, at his Cabin on a Sunday afternoon. Little did I know at the time that such a Sunday afternoon had become a famous Washington institution. I do not recall our conversations other than my talking about my studies at Grinnell and AU, but I do remember how Burling, then 89 years old and clad in a wool plaid shirt, vigorously chopped wood on a beautiful fall afternoon. (Now I wish I had been journaling to document these meetings.)

 Edward Burling’s Death[2]

On October 3, 1996, Edward B. Burling died at age 96 in Washington Hospital Center. According to an editorial in his honor in the Post that Graham may have helped write,  Burling’s “greatest diversion was a primitive log cabin that he built some 40 years ago on the shore of the Potomac near McLean. During the ‘30s and ‘40’s the cabin served as a meeting place for scores of scholars and diplomats and leaders. ‘They would gather to chop wood, eat well, and settle the problems of the world,’” said one of his law partners.

His obituary in the Post also mentioned that his introduction to politics came when he sat on a rafter at the 1896 Chicago convention of the Democratic Party and heard William Jennings Bryan deliver his famous “Cross of Gold” speech. Later Burling supported Teddy Roosevelt’s presidential candidacy in 1912 for the Progressive Party (a/k/a the Bull Moose Party), and subsequently Burling often described himself as the sole survivor of that Party. A few months after the end of World War I, Burling co-founded what became the prominent Covington & Burling (“C&B”) law firm (n/k/a Covington). He strongly opposed FDR’s New Deal and often joked that the law firm’s success was due to those measures. He was a lifelong Republican yet was a strong supporter of Lyndon Johnson in the 1964 presidential election against Barry Goldwater, the Republican presidential nominee.

The very unusual Post editorial about Burling that was simply entitled “Edward B. Burling” said he was the city’s “grand old man of the law [who from] the days when he was graduated from Harvard Law School in 1894, with one of the best records ever made there, he had been an outstanding legal scholar. And with the law as the base of his operations, he also  exerted a substantial influence in the fields of business, government and community relations.”

The editorial also stated that at the C&B law firm the “scholarly and retiring Mr. Burling, who made a specialty of cultivating and training brilliant young lawyers, was chiefly responsible  for keeping the firm’s performance  at a high level of professional excellence.”

The Burling cabin captured further comment in the editorial.  “For many years his cabin on the Potomac . . . was a center of cerebral ferment on  Sunday afternoons. Following a morning tramp through the woods and a hearty meal he loved to join in lively debate with judges, lawyers, government officials and others in the quiet surroundings of ‘The Cabin.’ These sessions will long be remembered by a vast number of his associates and friends in high places.”  The conclusion of the  editorial stated, “His great achievement was not merely longevity, but a sustained flow of energy and ideas and a passionate interest in the problems of humanity. His monument is already built in the minds of his associates and in the annals of this world observation post.”

Conclusion

Inspired by my brief encounter with Mr. Burling, his generosity to our alma mater Grinnell College and my interest in history, I later conducted research about him and wrote his biographical sketch in The Yale Biographical  Dictionary of American Law (p. 85) and a short article about him for The Grinnell Magazine and a longer essay that is on file with the College’s Archives.[3] These matters will be explored in  subsequent posts.

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[1] Katherine Graham, Personal History at 133-35 (Knopf, 1997).

[2] Obituary, Edward F. [sic] Burling, dies at 96; Founder of District Law Firm, Wash. Post, p. B4 (Oct. 4, 1966); Editorial, Edward B. Burling, Wash. Post (Oct. 5, 1966).

[3]  Edward Burnham Burling, Grinnell’s Quiet Benefactor, Grinnell Magazine, Summer 2009, at 21; Edward Burnham Burling, The College’s Quiet Benefactor (April 2008)( 18-page essay and bibliography; on file in Grinnell College’s Special Collections and Archives). The last of these has citations to the sources.

The Voting Rights Act of 1965

On February 27, 2013, the U.S. Supreme Court heard oral arguments in a case challenging the constitutionality of an important provision of the Voting Rights Act of 2006.[1] This provision extended for 25 years a requirement in section 5 of the original Voting Rights Act of 1965 for certain states to obtain pre-clearance from a special federal court or the U.S. Attorney General for any changes in their election laws.[2]

Before we review that oral argument, we will examine in separate posts four predicates for that argument.[3] This post will discuss the first of these predicates–the relevant substance of the original Voting Rights Act of 1965.[4]

This 1965 statute (as well as the 2006 statute) was enacted pursuant to Section 2 of the Fifteenth Amendment to the U.S. Constitution that provides, “The Congress shall have power to enforce this article by appropriate legislation.” That amendment, which was ratified after the Civil War in 1870, states in Section 1: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude”

LBJ signing VRA65

The Voting Rights Act of 1965 is seen as a major accomplishment of the Congress and President Lyndon B. Johnson. (The photo to the left shows President Johnson signing the statute; immediately behind him is Rev. Dr. Martin Luther King, Jr.) It was adopted as a result of congressional recognition that case-by-case litigation over racial voting discrimination was slow, expensive and ineffective and that a stature was needed “to cure the problem of voting discrimination” and “rid the country of racial discrimination in voting,”  (South Carolina v. Katzenbach, 383 U.S. 301, 313, 315 (1966).)

The 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target those areas of the country where racial discrimination in voting was concentrated.

Section 2, the Act’s main permanent provision, forbids any “standard, practice, or procedure” that “results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” (42 U.S.C. § 1973(a).) Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. (See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).)

Section 5 of the statute and the focus of the current case before the Supreme Court only applies to certain “covered jurisdictions” and “prescribes remedies . . . which go into effect without any need for prior adjudication.” (Katzenbach, 383 U.S. at 327-28.) Section 5 suspends “all changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the [U.S.] Attorney General.” (Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504, 2509 (2009),

A “covered jurisdiction” seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If such a jurisdiction opts for the former and if the Attorney General lodges no objection within 60 days, the proposed law can take effect.(42 U.S.C. § 1973c(a).) But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, (28 C.F.R. § 51.45(a)), or seek a de novo  determination from the three-judge district court. (42 U.S.C. § 1973c(a).)

Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither “has the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.” (Id.) This provision “preempted the most powerful tools of black disenfranchisement ,” resulting in “undeniable” improvements in the protection of minority voting rights. (Northwest Austin, 129 S. Ct. at 2509. 2511.)

The “covered jurisdictions” subject to section 5 were identified in section 4(b), as originally enacted, as any state or political subdivision of a state that “maintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.” (Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438.) Congress chose these criteria carefully because it knew precisely which states it sought to cover, those six southern states with the worst historical records of racial discrimination in voting: Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

In so doing, Congress recognized that these criteria for determining “covered jurisdictions” might have to be adjusted over time.

  • First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” (1965 Act § 4(a).) This so-called “bailout” provision, as subsequently amended, addresses potential over-inclusiveness of section 5, allowing jurisdictions with clean records to terminate their section 5 pre-clearance obligations.
  • Second, section 3(c) authorizes federal courts to require pre-clearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. (42 U.S.C. § 1973a(c).) Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. (Id.) This judicial “bail-in” provision addresses the formula’s potential under-inclusiveness.

In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions “are a valid means for carrying out the commands of the Fifteenth Amendment.”  As originally enacted in 1965, section 5 was to remain in effect for five years. Congress subsequently renewed these temporary provisions, including sections 4(b) and 5, in 1970 (for five years), in 1975 (for seven years), and in 1982 (for twenty-five years).[5] The Supreme Court also sustained the constitutionality of each extension through 2007. (Georgia v. United States, 411 U.S. 526 (1973); City of Rome v. United States, 446 U.S. 156 (1980); Lopez v. Monterey County, 525 U.S. 266 (1999).)

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[1] The 2006 statute’s correct title is the Fannie Lou Hamer, Rosa Parks, Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006.

[2] The states now subject to section 5 are Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia.

[3] The other predicates to be examined in separate posts are the Voting Rights Act of 2006; the 2009 Supreme Court decision regarding the 2006 statute (Northwest Austin Municipal Utility District No. One v. Holder); and the 2012 decision of the U.S. Court of Appeals for the D.C. Circuit, 2 to 1, upholding the constitutionality of the 2006 statute in the case now pending in the Supreme Court. (Shelby County, Alabama v. Holder.)

[5] The 1982 extension also made the provision for “bailout” from section 5 restrictions substantially more permissive.