Diane McWhorter is the author of “Carry Me Home.”
Of all the dying things touched by this presidency, one of the more poignant for me is the South’s premium on personal decency. The gratuitous kindness routinely practiced by individual Southerners may have been compensation for gross societal evils (slavery and segregation), but it remained an outsize virtue in a low-self-esteem region and somehow helped rationalize America’s stubborn belief in its intrinsic goodness. Pondering the cold world that young Roby will shape as well as inherit took me back to an encounter I had several years ago with his grandfather, and the hard history it revisited and foretold.
Rep. Roby’s father is Joel Dubina, former chief judge of the Atlanta-based U.S. Court of Appeals for the 11th Circuit and co-author of the 2011 decision declaring Obamacare unconstitutional. The ruling was later reversed by the Supreme Court. We were at a professional-development conference for the 11th Circuit appellate bar in Montgomery, Ala., and I was the luncheon speaker in my capacity as a historian of civil rights in Alabama. Addressing the 11th Circuit was my Walter Mitty fantasy come true.
While writing an account of the civil rights struggle in my hometown of Birmingham, I would often ask myself what I would have done if I had been an adult back in the day. For the 1930s, I landed on labor organizer, and for the ’40s, a World War II fighter pilot. The 1950s and 1960s were simple, I told my audience: I would have been a judge on your court, back when it was still the 5th Circuit. (The 11th was created from the rib of the 5th in 1981.)
At the time of my talk, during our first black president’s second term, it was not so easy to recall the status quo that had made the 5th Circuit critical. Under Southern apartheid, segregation was a totalizing condition, forming and deforming every aspect of human existence, from what hospital you were born in to where you were buried — not just where you sat on the bus or what water fountain you drank from. The South was well down the road to totalitarianism, and the 5th Circuit — or, really, four of its judges — was the last local checkpoint.
Whether it was desegregating the University of Georgia or enjoining the state of Mississippi from prosecuting a civil rights activist for the crime of having been pistol-whipped by a white voting registrar, a commandment from the 5th Circuit Four said this: Halt; turn around; go back toward the United States of America. In May 1963, after a federal judge in Birmingham upheld the expulsion of more than 1,000 city schoolchildren for marching against segregation, Chief Judge Elbert Tuttle kept his 5th Circuit chambers in Atlanta open after hours until their NAACP attorney, Constance Baker Motley, could get there from Alabama. Tuttle sent the kids back to class, thus sparing a generation of rising citizens from the extra challenge of being high school dropouts.
After my talk, a white audience member wondered why the children couldn’t simply repeat the school year. And yes, the expulsion could be justified — the demonstrators had skipped school. But such failures of imagination still speak to the moral burden of the judiciary today. Is the court’s duty to ensure that the law is merely justifiable or that it is just? And do we want to live in a world where the last-resort arbiters of right and wrong hew to a strict, technical standard of “defensible”? That is the narrow, often procedural dodge of those who choose to abet wrongs without having to own them.
Later, a few appellate lawyers came up to confess how uncomfortable my talk had made them, even though they agreed with me. One had found himself furtively checking the reaction of the conservative judges. While those stone-faced men had no professional control over a historian, the attorneys acknowledged that they submitted to frequent self-censoring, lest they collide ideologically with a presiding judge. This, they understood, was the totalitarian mind-set I had just described, from back when their court was its antidote.
Unlike those lawyers, Martha Roby has no apparent practical concerns to account for her tribal compliance — no matter what deviancy her party deems defensible. She is not running for reelection. And I still have enough faith in Southern decency to believe that Roby — who briefly unendorsed Trump in the wake of the “Access Hollywood” tape — doesn’t really want her son to grow up to be just like him.
And yet, she showcases the boy as her impeachment-vote partner, reminding us that this long civil war is a national inheritance. Trumpism’s next generation will carry on the fight — against the Parkland survivors or the teenager the president tweet-baited for earning the cover of Time.
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