Motion after Motion

Bernard Fielding (’58), South Carolina’s first black probate judge, reflects on the struggle for racial justice and equality.

On November 6, 1990, Bernard Fielding (’58) became the first African American elected probate judge in Charleston, South Carolina. He was not sworn in until August 19, 1991. The long delay was due to a challenge by his opponent, clearly racially motivated, that went all the way to the South Carolina Supreme Court before being decided in Fielding’s favor. That election underscored how far things had—and had not—come in the years since the Civil Rights Movement. “I think Charleston and the South in general have come a long way,” he says now. “We can be very proud of the victories, but there’s a long way to go.” Fielding’s personal story is very much a reflection of the struggle for racial justice and equality.

Born in Charleston in 1932, Fielding was the youngest of six children; two died in childhood. His parents both died when he was six years old. His father had selected a foster mother to raise the children and stipulated that the funeral home he founded in 1912 be sold in order to support them. Instead, the trustees of the will formed a corporation to keep it in the family; today, Bernard Fielding serves as its president.

Fielding attended Hampton Institute (now Hampton University), where he met his wife, Conchita. He was enrolled in the ROTC program, and upon graduation in 1953 he received his commission. Half his class went to Korea; he wound up in Boston.

He says he knew from the time he was 12 that he wanted to be a lawyer, so he enrolled at BU School of Law in the fall of 1955. He graduated three years later, and shocked his professors when he told them he was going to return to segregated South Carolina.

“I have said on innumerable occasions, ‘The only difference between the North and the South was that in the South, we knew where we stood,’” Fielding says.

He recalls responding to an ad posted in the lobby of the law school for a job as an insurance adjuster with a Boston firm. “When I walked in the door, this man looked at me and his bot- tom lip separated from his top lip,” says Fielding. “We chatted for about 45 minutes and he said, ‘I might as well be frank: I don’t think my insurance company is going to hire a colored insurance adjuster.’ I was about to graduate from one of the finest institutions in the country, and I wasn’t good enough to be an insurance adjuster.”

Fielding went home, passed the bar, and in August 1958 was sworn in. He worked with an older black lawyer for three years before going out on his own, specializing in probate, real estate, personal injury, and wrongful death. But in 1962 he spent the summer representing civil rights demonstrators as the associate counsel for the NAACP. Among those he worked with were his brother, Herbert Fielding, who would go on to serve in the South Carolina House and Senate, and Matthew J. Perry, a leading civil rights lawyer.

“Perry was a brilliant advocate,” he says. “He’d make a motion, the judge would rule against him, and he’d say, ‘Thank you very kindly, Your Honor. Now that you’ve ruled against that one, let me give you another one.’ That was our strategy: motion after motion, knowing they were all going to be ruled against. But we did make a racket, and that was what we wanted to do.”

During the 1960s and ’70s, Fielding served as general counsel for a variety of organizations, including the National Funeral Directors and Morticians Association. For more than fifty years he has offered his services for free to the YWCA of Greater Charleston, which his grandmother co-founded. In 1969, he became the first black president of the Young Democrats of Charleston County. He has also taught extensively about the Civil Rights Act of 1964 and what he refers to as “the most powerful legislation,” the Voting Rights Act of 1965.

In 1976, with some astute backroom maneuvering, Field- ing was appointed associate probate judge by the Charleston County Council. “In the entire state of South Carolina, only seven or eight of the probate judges were lawyers,” he says. “Yet I would hear statements like, ‘Well, we’re only going to appoint a qualified black.’ There I was, a trial lawyer with many years of experience, and there were questions about whether I was qualified.”

Fielding served as associate probate judge for 14 years. In 1990, when the longtime probate judge for Charleston County chose not to seek re-election, Fielding decided to run for his seat. “My opponent was Chris Merrill, an insurance agent who never saw the inside of a law school,” he says. “About two weeks before the election, he put out postcards all over the county with a picture of me that was as black as the shoes I’m wearing. Two days before the election, he ran an ad that included a picture of me to let white people know that I’m black. Race permeated the election.”

On November 7, the Charleston Post and Courier declared Merrill the winner. But the absentee ballots had not yet been counted, and when they were, Fielding had won by 454 votes. Merrill asked for a hearing before the Charleston County Election Commission. It lasted eight hours, with Merrill’s side alleging irregularities by poll workers in two predominantly black districts, Wadmalaw Island and McClellanville. The board dismissed the protest.

Merrill next appealed to the State Election Commission, which overturned the previous decision 3–2 and called for a new election, despite the fact that the people making the charges could not substantiate their claims, there was no corroborating evidence, and there hadn’t been a single challenge to any of the votes. This time, Fielding appealed to the South Carolina Supreme Court, which upheld his victory on July 23, 1991.

When Fielding finally took office, he received just 60 percent of his predecessor’s salary—in fact, a $10,000 pay cut from his associate salary. “About a year later, one of the two blacks on the council got them to restore the $10,000,” he says, “but I never got paid the full probate judge salary.”

Fielding lost his bid for a second term four years later and went back to practicing law and helping out at the funeral home. He says he has never regretted his decision to remain in South Carolina. “I’m proud of the battles I’ve been in and thankful I participated in them,” he says. “I think of the many people who lost their jobs, their lives. Those of us that have been in the struggle for so long continue to do everything we can to try to change things. But it just seems that we’re going through a period now where it’s become more difficult than ever.”

As the country marks the 50th anniversary of the Civil Rights Act this year, and the Voting Rights Act next year, Fielding sees a long road ahead. “The United States Supreme Court alone gutted the Voting Rights Act by taking out a huge section,” he says. “There are 30-some states that have enacted or are in the process of enacting anti-voting laws specifically designed to keep people of color from voting. The struggle for freedom and equality continues.”

Boston University School of Law marked the 50th anniversary of the Civil Rights Act of 1964 by bringing together a distinguished interdisciplinary group of scholars at our recent conference, The Civil Rights Act of 1964 at 50: Past, Present, and Future.

Reported by Sheryl Flatow