Little Rock and Wichita

Peter Irons

August 26, 1991|By Peter Irons

THE SENSE of deja vu is overwhelming.

The parallels in the two situations are chilling.

But will the endings of each be happily similar or tragically different?

We have two middle-sized cities in America's midsection. In each, mobs of howling protesters block access to buildings, intent on turning away people who want to exercise their constitutional rights.

Federal judges issue orders that law-enforcement officials clear the entrances of the demonstrators and bar public officials from interfering.

The judges are showered with abuse, even death threats. The attorney general and local deputies undermine the judges, siding with law-breakers who challenge the jurisdiction of federal courts to enforce federal rights.

Finally, in each case, a 67-year-old Republican president, on a New England vacation, refuses to exercise firm leadership.

Little Rock, Ark., in 1957. Wichita, Kan., in 1991: Each city is torn by conflict.

The Supreme Court ruled in 1954 that segregation in public schools violates the Constitution. Local officials initially promised compliance with the federal court order to admit nine black students to Central High School in Little Rock.

But integration opponents, egged on by visiting rabble-rousers, vowed to barricade Central High. The day before classes were to begin, Gov. Orval Faubus ordered National Guard troops to block the school's entrance to black students.

One man stood between order and anarchy. The day after Faubus acted, federal district Judge Ronald N. Davies ordered integration to proceed "forthwith" and barred Faubus from obstructing his order.

The judge was denounced and received death threats.

Instead of backing Davies, Atty. Gen. Herbert Brownell asked his staff to "study the constitutional questions of the right of the federal court" to issue the orders. Brownell passed the buck to President Eisenhower.

Annoyed at the disruption of his golfing vacation in Rhode Island, Eisenhower waited three weeks before he ordered federal troops to enforce Davies' orders and end the insurrection.

The issue in Wichita is not school integration, but abortion rights.

The blockaded building is not a school, but a clinic, Women's Health Care Services, where some 2,000 abortions are performed each year.

Fewer than 1 percent of this number are third-trimester, or late, abortions. But this fact enraged an army of protesters.

Again, one man stands between order and anarchy in Wichita. Federal district Judge Patrick F. Kelly responded to the blockades with injunctive relief.

Those barred included Gov. Joan Finney of Kansas, an abortion opponent. Kelly ordered U.S. marshals to arrest those who blocked patients. Demonstrators denounced Kelly, a Catholic.

"Don't worry about being excommunicated," one caller told him. "You are dead."

Instead of backing Kelly, Atty. Gen. Dick Thornburgh has sided with the protesters who claim that federal courts lack jurisdiction to enforce abortion rights.

Annoyed at the disruption of his golfing vacation in Maine, President Bush at first refused to criticize violators of Kelly's order. Later, he criticized the protesters' violent tactics.

Asked whether protesters should obey the courts, he paused on the first tee and replied that he was "not judging this at all."

One official did judge the defiance of judicial orders in Little Rock and displayed the leadership that Eisenhower lacked. Chief Justice Earl Warren marshaled his Supreme Court colleagues into a unanimous affirmation of Davies' orders. Warren was outraged when the school board's lawyer argued that the state and local officials could decide that "a United States Supreme Court decision is not the law of the land" and disobey orders.

"I have never heard such an argument made in a court of justice before," Warren thundered.

In the Little Rock case the court emphasized the "duty of state officials to obey federal court orders resting on this court's considered interpretation of the United States Constitution."

Eisenhower heeded the admonition. "All of us know," he stated, "that if an individual, a community or a state is going . . . to defy the rulings of the courts, then anarchy results."

Can we expect Chief Justice William Rehnquist to emulate Warren if the Wichita case reaches the Supreme Court? Will Bush respond to threatened anarchy by urging compliance with judicial orders?

Asking these questions invites a despairing answer. The centennial of Warren's birth has found his legacy spent and his call for constitutional supremacy spurned.

The capacity to lead, from the court and the White House, does not reach from Little Rock to Wichita.

Peter Irons is director of the Earl Warren Bill of Rights Project at the University of California at San Diego.

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