Those Kennedy Judges

It was no accident that John F. Kennedy appointed more federal judges than any other President. For years, congressional Democrats had refused to expand the overworked federal bench--saving for a Democratic Administration a bumper crop of 73 judicial nominations.

But all that judicial patronage was liberally sprinkled with problems.

Because they deal largely with the law of the state in which they sit, and they understandably reflect the dominant social patterns of that state, district judges are drawn from their own localities. The judges were approved by Attorney General Robert Kennedy, but he knew that all candidates, and especially those for the Southern bench, would have to be "traded out" with the Senate Judiciary Committee chaired by Mississippi's Segregationist James O.

Eastland.

Even so, Kennedy may have thought he was doing well. His first district judge, for instance, Mississippi's William Harold Cox, took office in 1961 with the American Bar Association's highest endorsement of "exceptionally well-qualified." The tall, stern son of a County sheriff, Cox was a stickler for detail and had been a first-rate trial lawyer in Jackson. Other Kennedy appointees seemed equally qualified, and the Administration heaved a sigh of relief.

Rearguard Justice. Unhappily, some of those promising district judges have turned out to be so devoted to segregation that they may be the greatest obstacle to equal rights in the South today.

Now entrenched for life on Southern benches are such men as Louisiana's Judge E. Gordon West, who has upheld the Supreme Court's 1954 school ruling while calling it "one of the truly regrettable decisions of all time," and Georgia's Judge J. Robert Elliott, who once said, "I don't want those pinks, radicals and black voters to outvote those who are trying to preserve our segregation laws and traditions." Armed with tight control over their calendars, certain Southern district judges have delayed civil rights cases for months and years, played cat and mouse with the Fifth Circuit Court of Appeals and mocked the Supreme Court. Where possible, they remand cases for endless adjudication by state courts. When reversed, they take back the same case and start all over. Little can be done short of impeachment--a tactic successfully used only four times since 1789.

One measure of the result is that last week Mississippi's Judge Cox coolly tried to jail not only U.S. Attorney Robert E. Hauberg in Jackson but also his boss, Acting Attorney General Nicholas Katzenbach.

It was a strange contempt proceeding that threatened Negro voting throughout Mississippi, but it should have been no surprise. Once on the bench in a state where only 5% of adult Negroes are registered to vote, Judge Cox, 63, has consistently refused to find any pattern of discrimination. Moreover, he has filled trial transcripts in rights cases with gratuitous obiter dicta. At a hearing last March, he referred to a Negro voting registration drive as "grandstanding"; he repeatedly described 200 applicants as "a bunch of niggers" and called them "chimpapzees" who "ought to be in the movies rather than being registered to vote." Fit for Jail. The latest case to cast Cox as a judicial Horatio at the segregation bridge began in 1962 when two Negro witnesses told of being denied the right to register seven years before.

They said that on that day they had seen a white man allowed to sign the registration book. As it turned out, the white man in question had been present, but he had actually registered elsewhere. "Outraged" at this revelation, Judge Cox accused the Negro witnesses of perjury.

The Government declined to prosecute on the ground that the Negroes were guilty only of an insignificant slip of memory. But Cox persisted, and last fall the Negroes were indicted by a state grand jury. The Government countered by arguing that states cannot prosecute alleged federal perjurers. Cox tried a new tack when a federal grand jury began looking into civil rights violations throughout Mississippi. Somehow that jury was persuaded to see things Cox's way. It indicted the Negroes, and then Cox ordered U.S. Attorney Robert E. Hauberg to prepare and sign the indictment.

With tears in his eyes, the towering Mississippi-born Hauberg "most humbly" refused on direct orders of Acting Attorney General Katzenbach. "I do judge you to be in civil contempt," intoned Cox, ordering Hauberg to jail "until you decide to comply." Cox then ordered Katzenbach "to show cause why he should not be adjudged guilty of contempt."* Irreparable Damage. Faced with an unprecedented challenge, the Justice Department last week petitioned the Fifth Circuit Court of Appeals for a writ of prohibition against Cox's order on the ground that the U.S. Attorney General has sole authority for initiating all federal prosecutions. This does not prevent Cox's grand jury from issuing indictments with an outside lawyer's help, but it does free the Government from participating in "unwarranted indictments" against the very Negroes it seeks to help. In short, says the Justice Department, Cox cannot usurp the U.S.

prosecutor's job.

The appellate court, having granted a stay, will now hear Cox's argument.

As the judge sees it, Rule 7 (c) of the Federal Rules of Criminal Procedure commands that all federal indictments "shall be signed by the Attorney for the Government." If his judicial superiors agree, Cox would then be protected by Rule 48, which says that the Government can drop indictments only "by leave of court"--in this case, Judge Cox. To argue these subtleties, Cox has enlisted three high-powered Mississippi lawyers, including State Attorney General Joseph T. Patterson.

There is more involved than what the Justice Department calls "irreparable damage" to Government authority.

And the case is more than "merely a question of perjury," as Cox puts it. If the indictments go through, says one civil rights worker, "our voting drive will be cut back fantastically. The Justice Department now has about 16 voting registration suits going in the state, and they would be smashed. We couldn't get anyone to testify."

* If convicted, Katzenbach has one small consolation: all federal prisoners are officially in the custody of the Attorney General. "If I'm going to jail," he cracks, "I might as well go in my own custody."

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