Champion of the ERA and Title IX dies
Former Sen. Birch Bayh, a Democrat from Indiana who wrote two major constitutional amendments, was 91.
Former Indiana Sen. Birch Bayh, the author of two major constitutional amendments as well as legislation that dramatically improved women’s rights in classrooms and on athletic fields, died Thursday at his home in Easton, Md. He was 91.
The cause was pneumonia, his family said.
In three terms on Capitol Hill, the liberal Democrat from conservative Indiana became one of his era’s most productive legislators and wiliest political adversaries, particularly in clashes over Supreme Court nominees put forward by the Nixon administration.
In 1980 Bayh’s Senate seat was targeted by Republicans energized by Ronald Reagan’s presidential bid, and he was defeated by a brash young challenger, Rep. Dan Quayle, later vice president under George H.W. Bush. But the Bayh name remained resonant in Indiana, and his elder son, Evan, served as governor and U.S. senator.
Birch Bayh, an Indiana native — “just a shirttail lawyer from Shirkieville,” in his words — was an unlikely avatar of constitutional reform when he arrived in Washington in 1963 after ousting a prominent three-term incumbent.
By chance, he landed on the Senate Judiciary Committee, although he was just three years out of law school and had more experience as a farmer than as a lawyer.
Then serendipity struck — twice. The constitutional amendment subcommittee’s chairman died, and no one wanted what seemed a ticket to obscurity. Bayh volunteered. President Kennedy’s assassination three months later, in November 1963, elevated the job’s status dramatically.
Lyndon Johnson’s accession to the presidency was a stark reminder of a flaw in the succession process. There was no method to replace Johnson as vice president, and Johnson had a history of heart disease. The two officials designated by statute as the first and second heirs — the speaker of the House and Senate president pro tem — were both elderly and frail.
The subcommittee became a vehicle to prominence. Bayh jumped aboard, becoming the main author and advocate of the 25th Amendment. Ratified in 1967 after protracted controversy, the amendment established clear procedures for appointing a vice president if a vacancy occurred. It also set rules for replacing the president should the incumbent become seriously disabled.
In 1973, during the Watergate crisis, Nixon used the 25th Amendment to name Rep. Gerald R. Ford (RMich.), the House minority leader, as his vice president. Ford succeeded Spiro Agnew, who resigned in disgrace after a federal investigation into allegations of bribery and extortion unrelated to Watergate. When Nixon resigned the next year, Ford became president and chose Nelson Rockefeller as his vice president.
Bayh also wrote the 26th Amendment, adopted in 1971, setting the national voting age at 18. It settled an issue dating to World War II, when the slogan “old enough to fight, too young to vote” gained currency.
Next Bayh co-wrote what would have been the 27th Amendment, the Equal Rights Amendment, prescribing equal treatment of women in all fields. Congress approved it in 1972. Sensing that the measure might sink because of opposition in state legislatures — as, ultimately, it did — Bayh produced Title IX of the Education Amendments of 1972. It banned gender discrimination in schools receiving federal support.
Title IX provoked controversy that continues to this day, particularly the requirement that schools devote equal resources to male and female athletes. Notre Dame football coach Edward “Moose” Krause, an Indiana icon, warned Bayh, “This thing is going to kill football.”
Forty years after Title IX was enacted, when Bayh was being honored by female professional basketball players, he recalled the argument he made in the 1970s: “In a country that prides itself on equality, we could not continue to deny 53% of the American people equal rights.”
Title IX had even an broader effect in classrooms and laboratories. In an interview, Donna Shalala, Bill Clinton’s secretary of Health and Human Services and now a U.S. representative from Florida, said: “Title IX was a game changer. It created opportunities for women students, faculty, administrators. Without it, you wouldn’t see as many women studying law and medicine — or serving as university presidents.”
Feminism, Bayh acknowledged, was a taste he had acquired with the help of his first wife and political partner, Marvella Hern Bayh. “From time to time,” he reminisced in 2004, “she would remind me what it was like to be a woman in a man’s world.”
Birch Evans Bayh Jr. was born Jan. 22, 1928, in Terre Haute, Ind., near Shirkieville, where forebears had farmed for generations.
After serving in the Army, he graduated from Purdue University in 1951, where as a senior he was elected class president, excelled in boxing and baseball, and represented Indiana at the American Farm Bureau’s national debate competition in Chicago.
That is where he met a formidable freshman from Oklahoma State, Marvella Hern. Their love-at-firstsight encounter did not distract her. She walked off with the national prize, plus his fraternity pin.
They married in 1952, and the newlyweds ran his family’s farm. In 1954, he won a seat in the Indiana House of Representatives even though politics was so alien to his family, he joked, that “my dad started thinking, ‘Where did I go wrong?’ ”
The articulate, handsome Bayh swiftly became minority leader and then speaker. While still responsible for the farm and legislative duties, he entered Indiana University law school. He graduated in 1960, joined a law firm in Terre Haute in 1961 and rented out the farm.
He had scarcely begun his new occupation when the Bayhs hatched a larger ambition: challenging Sen. Homer Capehart, a conservative Republican seeking a fourth term. The goal seemed grandiose. Indiana had voted overwhelmingly for Nixon in 1960, and Capehart was popular.
But the Bayhs practiced retail politics relentlessly. “I’d rather shake hands than eat,” he liked to say. At one debate, the challenger rattled the incumbent, who advocated a military response to communist Cuba, by accusing him of being a “warmonger.” Capehart seized Bayh by the lapels and exclaimed, “Don’t try to get away!”
Reporters separated them before blows were struck. Bayh won by a margin of less than 1%. Time magazine opined that Capehart lost because “his image was that of a conservative who had just crept out of a cave.” The senator-elect said voters “are impressed by a fellow who’s out there working his tail off.”
Diligence remained the Bayh hallmark. He was active in drafting civil rights bills during the Kennedy and Johnson administrations, although such legislation was unpopular in Indiana.
A delayed vote on a civil rights measure in 1964 almost killed him. The Bayhs accompanied Sen. Edward Kennedy to a Democratic event in Massachusetts, leaving hours later than scheduled because of the late vote. Their small plane crashed, landing in evening fog at a rural airport.
Two of the five people aboard died. The Bayhs suffered relatively minor injuries, but Kennedy’s back was broken. Bayh dragged him out of the wreckage.
Bayh’s national profile grew in the late 1960s and early ’70s because of major battles over two U.S. Supreme Court nominees.
When Nixon nominated Clement Haynsworth Jr., chief judge of the U.S. 4th Circuit Court of Appeals, to a seat on the high court in 1969, a seemingly solid coalition of Republicans and Southern Democrats supported him. But union and civil rights leaders considered the conservative Haynsworth an enemy.
Bayh rallied the opposition, casting doubt on Haynsworth’s ethics and pointing out that he had participated in a case involving a company in which he owned stock. The Senate rejected Haynsworth.
In 1970, with Bayh again in the vanguard, the Senate voted down another conservative appellate court judge, G. Harrold Carswell. Nixon accused Bayh and others of exceeding the Senate’s “advise and consent” authority.
The president, Bayh responded, is “wrong as a matter of constitutional law, wrong as a matter of history, and wrong as a matter of public policy.”
Having made friends among influential groups in Democratic politics — labor, feminists, the civil rights movement — Bayh entered the 1972 presidential race, only to withdraw after his wife was diagnosed with breast cancer. Marvella Bayh died after her cancer recurred in 1979. Two years later, Bayh married Katherine “Kitty” Halpin, a director of news information for ABC News. In addition to wife Kitty and son Evan, survivors include son Christopher Bayh and four grandchildren.
During Marvella’s relapse, the Bayhs were frustrated that a promising treatment was unavailable because of a dispute over intellectual property rights. Medical and other innovations developed with government support, they discovered, sometimes remained in limbo because of procedures necessary to establish ownership.
Working with Sen. Robert Dole (R-Kan.), Bayh wrote a patent-reform bill that was introduced in 1978 and enacted in 1980. It streamlined practices, expediting the availability of many scientific processes.
It was his last legislative accomplishment. After his defeat in 1980, Bayh returned to the practice of law but remained in the public arena. When Title IX cases reached the Supreme Court, he wrote amicus briefs defending his best-known legislation.
In 2008, at age 80, he campaigned throughout Indiana for Barack Obama, sometimes making five appearances a day. He told an Indianapolis Star reporter that his 1962 margin amounted to two votes per precinct. Hence his appeal to supporters: “When it’s about over, and you’re so tired you can’t make another phone call, can’t take another step, get just two more votes for Birch.”
Obama carried Indiana in 2008 by less than one percentage point.