Change Down South

After the Supreme Court, no single U.S. court has been more important to Negro civil rights than the U.S. Court of Appeals for the Fifth Circuit. Alabama, Florida, Georgia, Louisiana, Mississippi and Texas all fall under its jurisdiction. So it is that when an opening occurs on the court, segregationists and civil rights lawyers hold their respective breaths until the President nominates a new man. Because of the court's work load, it was expanded last year from nine to thirteen judges. This week the final vacancy will be filled when Claude Feemster Clayton, 58, takes the path of office. When news of his nomination came down, waiting lawyers on both sides of the integration fence breathed sighs of relief. Mississippi-born and -bred, Clayton is segregationist by heritage and inclination, but as a federal district judge, he slowly--and no doubt painfully--put aside the prejudices of a lifetime.

Black & White. Appointed to the federal judgeship for northern Mississippi by President Eisenhower in 1958, Lawyer Clayton, a Democrat who supported Ike, had never shown any signs of dissatisfaction with the Southern way of life. Quite the opposite. "I lived in the era when Plessy v. Ferguson, separate but equal, was the law of the land," he says now. I had no quarrel with it." Indeed, he had so little quarrel with Mississippi ways that he rose to command one of the state's National Guard divisions (which was totally segregated), ranked as a major general when he was retired two years ago.

Making two unsuccessful bids for the U.S. Congress, in 1946 and 1948, he ran as a white supremacist. In his federal courtroom, he seemed at first to be living down to his background. In one case, Negro plaintiffs sought the right to look at county voting records; a higher court had already ordered that such requests be honored as a matter of course. The course, in Clayton's court, ran four years, and was potholed by rulings like the one requiring documents to be redrawn because the U.S.

Attorney General had changed and the new man's name had to be used.

Despite such instances, Clayton built a reputation, even among his critics, for fair-mindedness. That, plus some reversals by higher courts, began to nudge him away from 19th century Southern justice. Clayton watchers agree that the balance was tipped by U.S. v. Duke in 1963, a voting-rights case in Panola County, Miss. Judge Clayton had ruled that Negroes barred from the voting rolls had not shown that they were actually qualified under Mississippi standards.

The Fifth Circuit Court of Appeals reversed the decision--and inferentially told off Clayton in the process. The real issue, the court indicated, was not whether Negroes qualified under the standards, but whether the standards were applied equally to both whites and Negroes.

Contemptuous. After that, Clayton's decisions developed a more progressive tone. He put a stop to the harassment of Negroes seeking to register to vote in one town; he ordered a circuit clerk in an other to stop applying stricter voting requirements for Negroes than for whites; he knocked down a third town's ordinance restricting Negro marches and demonstrations; he voided, as a member of a three-judge panel, application of the state's poll tax in state and local elections. "When you are able to show him a set of outrageous facts, then he loses his innate conservatism," says Lawyer Al Bronstein of the Lawyers Constitutional Defense Committee.

Few facts were more outrageous than those surrounding last year's demonstrations in Grenada, Miss. There Clayton himself had previously ordered a speedup in the local schools' desegregation, but when Negro children attempted to enter the schools, they were savagely beaten. Judge Clayton bluntly ordered the police to protect the children henceforth and sentenced Strong-arm Constable Grady Carroll to four months for contempt of court. Said one of the lawyers in the courtroom: "You should have seen Carroll's face. The man was just astounded--a Mississippi judge doing this to a Mississippi law officer."

"As a realist," Clayton explains, "I've recognized my responsibility to adapt to changing times." He is still fundamentally conservative. "We knew he would protect clearly defined Constitutional rights," says an N.A.A.C.P. Legal Defense Fund lawyer, "but we also knew he wouldn't make law." Clayton agrees, adding that "case law must come, if it comes at all, at the appeals level." He is now moving to that level.

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