The Busing Judge

While the Supreme Court establishes broad legal principles, it is the nation's 375 federal district judges who face the hard task of applying them to specific cases. In the South since 1954, such judges have borne the crucial and often lonely responsibility for determining at trials the speed of desegregation. When the Supreme Court ruled last week that judges may order busing to end dual school systems (see THE NATION), the high court gave even more power--and problems--to the front-line men on the federal bench.

Appropriately the ruling upheld one of the most impressive members of the Southern federal judiciary. James Bryan McMillan, 54, looks and is the very model of a gracious Southern intellect. A North Carolina farmer's son, he was class of '40 at Harvard Law School, returned to his home state to set up a busy general-litigation practice, and in 1968 became one of Lyndon Johnson's last judicial appointees. Within a year, his duties forced him to confront the desegregating of the Charlotte-Mecklenburg County school district. After studying the facts, Judge McMillan decided he had taken the state's black-white situation for granted all his life "without thinking through this problem."

Picketed Pariah. Slowly McMillan became convinced that the Constitution required far more integration. Two years ago, he ruled that all known ways of desegregating should be considered, "including busing." The mere mention of the word caused outrage in Charlotte, and by the time the judge actually ordered the start of busing last year, he was all but a pariah to many in the community. Though he is an avid golfer (9 or 10 handicap), rumor had it that he was unable to pick up a foursome. McMillan denies that. But pickets on his lawn did demand his impeachment; there were telephoned death threats and ultimately police guards.

McMillan has willingly weathered the ostracism. "He'd give Job stiff competition for patience," says his secretary. With characteristic good humor, he prizes a battery-run toy school bus given him by a fellow judge and periodically zooms it around his office carpet. (The toy manufacturer provided the bus with white student passengers only.) "A judge would ordinarily like to decide cases to suit his neighbors," McMillan admits. But in this case, he could not.

Robe Dragging. Other judges are not so able to resist community pressure or go beyond long-held beliefs. After the first Supreme Court desegregation decisions in the 1950s, many Southern district judges dragged their feet, their robes, their dignity and anything else that came to hand in an effort to slow or reverse the course of integration. In Dallas in 1960, for example, Judge T. Whitfield Davidson, then 83, ruled that a plan promising complete desegregation by 1973 was unacceptable--because the school board was moving too fast. Higher courts reversed rulings in the case at least five times, not an unusual rate for laggard Southern judges, some of whom are still serving as glacially as ever.

Such reluctance to act may also serve to muddle the Supreme Court's busing decision, but the record shows that a solid majority of Southern federal judges have in fact carried out their responsibilities, whatever their initial personal feelings. Judge McMillan is in the best of that tradition. As he said when protesting lawyers argued that Charlotte was well ahead of most of the South in integrating even without busing: "Constitutional rights will not be denied here simply because they may be denied elsewhere. There is no 'Dow Jones average' for such rights."

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