Thurgood Marshall (3 page)

Johnson’s main worry was about the politics of putting Marshall on the Court in 1967. It was a time of a growing backlash against liberal politics. The college campuses were filled with antiwar and civil rights
protests. Violent riots had shaken Baltimore, Chicago, and Los Angeles during the Black Power summer of 1966. Talking to Clark about the politics of nominating Marshall to the Court, the president had said Marshall was a man who would “just be in the liberals’ pocket 100 percent of the time.” A Court with Marshall, William Douglas, Hugo Black, Abe Fortas, and Earl Warren was a sure bet to be a liberal playground: “Think they’d send a man to the penitentiary for raping a woman if you had a photograph of it?” the president asked Clark. Johnson also worried that putting another liberal on the Court at that time would infuriate conservatives and might mean that his chance to be reelected in 1968 “was long gone.”

Clark listened to Johnson’s rant. But he did not agree. A fellow Texan and close confidant to the president, Clark was different from most of the men surrounding Johnson. He was a University of Chicago graduate who was considered by Johnson’s political cronies to be an extreme liberal, even if he was from Texas. In his deep southern drawl the young Clark reminded Johnson that Marshall shared the president’s core belief that the key to ending the 1960s racial strife was promoting integration. Marshall’s record showed a willingness to crack down on younger, more militant blacks who could be seen on TV rioting and battling with cops. Given his record as a famed civil rights lawyer, Marshall would be a powerful man to oppose the black radicals.

The president listened to Clark but never said yes or no to putting Marshall on the Court. Clark found himself attempting to stop Johnson from ruling Marshall out. He tried to soothe the president by allaying his biggest fear—that Marshall could not be confirmed. But with southern segregationists in many key positions in the Senate, Johnson expected a fight over the first black justice. He said he could not afford to have a major nomination go down to defeat with the election so near.

Some of the president’s doubts eventually got back to Marshall. In conversations with Louis Martin and other friends, he worried that the president was looking at other black lawyers—less well known and less controversial—who would be more likely to win easy Senate confirmation.
Jet
, the weekly black newsmagazine, reported that the president’s list of potential black nominees to the Supreme Court included Marshall but also federal judges Wade McCree of Detroit and William Hastie of Philadelphia. They had first-rate credentials in the white legal establishment—and none of Marshall’s baggage of a career in the civil rights movement. In fact, the president had asked Nicholas Katzenbach, Ramsey
Clark’s predecessor as attorney general, a Rhodes scholar and Yale Law School professor with impeccable establishment credentials, to identify other black candidates for the Court.

Johnson, standing toe-to-toe with the equally tall, balding Katzenbach, told him, “Marshall’s not the best—he’s not the most outstanding black lawyer in the country.” Katzenbach grimaced as the imposing Johnson listed prominent, supposedly better-qualified black lawyers, such as William Coleman and Bill Hastie. Finally, Katzenbach, who had come to be friends with Marshall, faced up to Johnson’s charge. He replied, “Mr. President, if you appoint anybody, any black to that court but Thurgood Marshall, you are insulting every black in the country. Thurgood is
the
black lawyer as far as blacks are concerned—I mean there can’t be any doubt about that.”

Katzenbach did agree with the president that Marshall was lazy some of the time. But he reassured Johnson that he would never regret putting Marshall on the Supreme Court. “He may not be a Felix Frankfurter, he may not be a Hugo Black, but he will never disgrace you.”
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Katzenbach wanted Marshall on the Court as a symbol of racial harmony.

Inside the White House, Marshall had asked another good friend to urge the president to put him on the high court. Clifford Alexander, one of Johnson’s White House lawyers, was the chief adviser on hiring blacks for the administration. Alexander had known Marshall for years. When Alexander won the presidency of the student council at Harvard University in 1954, he asked Marshall to address the students. At that moment Marshall was world famous for his victory desegregating U.S. public schools. When he agreed to come to Harvard, it was a coup for the student council president, and Alexander never forgot it.
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In the Oval Office, dominated by the president’s massive mahogany desk, the unassuming Alexander had walked the same path as Ramsey Clark and Nicholas Katzenbach. Sitting by the side of the desk, Alexander in a soft voice had pressed him to make history by nominating Marshall to replace the retiring Clark. Johnson, again, did not say yes or no. Later, Alexander could only tell Marshall that he had put in a good word for him and not to worry about all the rumors.

On June 12, 1967, his last day on the high court, Justice Tom Clark told reporters the president would appoint a replacement “who will fill my shoes to overflowing, possibly break them open.”
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His comment sparked a new wave of rumors. Justice Clark’s comments raised
Marshall’s hopes. But as his petite Hawaiian wife later told reporters, she had heard hints before, and “you can’t live on hints.”
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At the retirement party Johnson was his usual dominating self, alternately bullying and ingratiating himself with both justices and the politicians in the crowd. When Marshall made his way through the faces surrounding Johnson, the president quickly greeted him with a wide smile. The two men loved to drink bourbon and tell stories full of lies. They were the same age and had strong feelings for each other. So it was no surprise when the president threw a long arm around Marshall and briefly pulled him aside. Johnson bluntly told him not to get his hopes up because he was not going to replace Justice Clark.

Marshall played it off with a laugh. Standing to his full height, he reminded Johnson that he didn’t need a job and there had never been any promise he would get to the high court. Behind his bluster, however, Marshall felt a fierce determination to argue with Johnson right there. It was Marshall’s style to apply pressure and fight. But this time he bit his tongue. It didn’t make sense to think he could bully Lyndon Johnson in the middle of a party and win. He drove home, cutting across the Mall, with the U.S. Capitol’s magnificent white dome glowing to one side and the towering Washington Monument on the other. The nation’s grand symbols made him feel small, an outsider. He had missed his chance.

The next morning, Tuesday, June 13, Marshall was in his office at the Justice Department on Pennsylvania Avenue when his secretary got a call from the attorney general. It was just before 10:00
A.M
., and Clark told her he was coming down to see Marshall and to keep everyone else out. When Clark got into Marshall’s office, he asked him what he was doing later that morning. Marshall replied that he was going to the White House to speak with a group of students. Clark told him to go over fifteen minutes early and stop in the Oval Office. Marshall pressed Clark to tell him what was going on. Clark said he didn’t know. But given the spate of rumors over the last twenty-four hours and the disaster at the party, Marshall figured this trip was for Johnson to stroke him and tell him why he didn’t get the job.
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Meanwhile, the president phoned Louis Martin at the Democratic National Committee that morning and asked him to come to the Oval Office. Before Martin’s arrival Johnson placed another call. He told Clifford Alexander to come over as well. Alexander was the first to arrive. He found Johnson sitting in a rocking chair in front of a circular marble coffee
table in the middle of the Oval Office. The president was holding handwritten notes on large white index cards. Listed were the names of key members of the Senate Judiciary Committee; the Senate leaders, including Mike Mansfield and Everett Dirksen, the majority and minority leaders; Chief Justice Earl Warren; and a tally of Marshall’s record in cases argued before the Supreme Court. Highlighted on one card was the fact that Marshall had been first in his class at Howard Law School. Alexander could barely contain his glee when he realized what was going on.

With Alexander standing by, the president, using the white phone built into the coffee table, called Vice President Hubert Humphrey, informing him of the decision. Then Johnson, alternately leaning forward and pushing back as he spoke, called the man who was sure to be the leader in any confirmation fight in the Senate, James Eastland of Mississippi, a hard-line segregationist. “That conversation was mostly in monotone,” Alexander recalled. “President Johnson said to him, ‘I know you must agree that this is the best-qualified person.’ ”

Johnson then called several more senators. Alexander remembered the conversations all ended the same way: “I am sure with this distinguished record that you will support his nomination.” No one, neither Republican nor Democrat, argued. There was hardly any reason for discussion. Johnson had made up his mind, and he spoke with presidential authority. He was not asking for anyone’s support. “God knows by the time he finished his monologue, the people at the other end of the phone had to think about what they had agreed to,” said Alexander.

Louis Martin soon came in and stood with Alexander as the president called Earl Warren, who was in San Francisco. Warren gave his approval to the nomination and later sent a note thanking Johnson for early notice of the nomination.

With the calls finished, Johnson asked Alexander and Martin to wait outside while he spoke with Marshall alone. Marshall had been next door since 10:45, talking with Marvin Watson, Johnson’s appointments secretary. Watson played dumb when Marshall asked him why the president wanted to see him. When he was finally called into the Oval Office at 11:05, Marshall saw Johnson, all by himself, bent over the news service ticker-tape machine.

While Marshall waited for the president to turn around he quickly glanced about the Oval Office. In the far corner was a bronze caricature of a frenetic President Johnson running while holding a phone in one hand. On the marble coffee table Marshall could see a bunch of index
cards and papers, some of which had spilled onto the green rug under the president’s rocking chair. Nervously, Marshall coughed to get the president’s attention. Johnson spun around, as though surprised, and said, “Oh, hi, Thurgood. Sit down, sit down.” Marshall moved toward the couch and sat next to Johnson’s rocking chair. Johnson made small talk with the fidgety Marshall until he abruptly turned to him and said, “You know something, Thurgood? … I’m going to put you on the Supreme Court.” Marshall was stunned. All he could say was “Oh, yipe!”
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Johnson laughed and had Martin and Alexander come back into the office. They sat on the couch across from Marshall, with the president occasionally leaning forward in the rocking chair. Johnson joked with Marshall that he appointed him to the Supreme Court because “you are very much like me—brought up in poverty … not a Harvard boy like Cliff.” Alexander later recalled thinking to himself that Marshall was not brought up in poverty, but that was the image he gave off. For nearly an hour a giddy Marshall joked around, never moving far from the president’s rocking chair even as Johnson made phone calls to ecstatic civil rights leaders. Marshall shook his head and laughed at Johnson’s trickery as he recalled for Martin and Alexander that just the night before, the president had told him he would not get the job. Johnson just smiled.

At noon Johnson led his new nominee out the French doors behind his desk and into the bright June sunshine. The minute the reporters in the Rose Garden saw Marshall, they knew what was coming. His nomination, while historic, somehow was expected because it had been rumored for so long.

“I have just talked to the Chief Justice and informed him that I shall send to the Senate this afternoon the nomination of Mr. Thurgood Marshall, Solicitor General, to the position of Associate Justice of the Supreme Court,” Johnson said. “He has argued nineteen cases in the Supreme Court since becoming Solicitor General. Prior to that time he had argued some thirty-two cases. Statisticians tell me that probably only one or two other living men have argued as many cases before the Court—and perhaps less than half a dozen in all the history of the Nation.…

“I believe he has already earned his place in history, but I think it will be greatly enhanced by his service on the Court,” continued Johnson. “I believe he earned that appointment; he deserves the appointment. He is
best qualified by training and by very valuable service to the country. I believe it is the right thing to do, the right time to do it, the right man and the right place.”

Surprisingly, there was no express mention of the fact that Marshall was black, just Johnson’s singular focus on his legal record and an expression of doing the “right thing,” a quick jab at critics, particularly southern senators, who might oppose the idea of putting a black man on the nation’s highest court. The president, with Marshall by his side, then began a twenty-minute news conference, most of which, incredibly, had nothing to do with the nomination. Reporters asked about Vietnam, the Middle East, and riots in the big cities. Finally, a reporter asked Johnson if he had been advised to name a more conservative nominee than Marshall.

President Johnson shook his head and said, “No, I received very little pressure of any kind in this connection.” The American Bar Association found Marshall “highly acceptable,” Johnson added. Another reporter jumped in: “I was just going to ask Justice Marshall, if we might, how he feels about this appointment?”

Johnson, turning to Marshall, responded: “I hope the justice doesn’t go into an extended news conference before his confirmation.” Marshall, who was almost as tall as the president, then stepped forward, bent over the microphone, smiled, and looking out through thick, black-framed eyeglasses said: “You speak for me, Mr. President, we will wait until after the Senate acts.”
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The president and Marshall, arm in arm and smiling, then marched with long, loping strides back into the Oval Office, where Marshall asked the president for permission to tell his wife the good news before she heard it on the radio. Johnson, with a startled look, said he was surprised Marshall had not already told her. “How could I, sir?” Marshall asked. “I’ve been with you all the time.” Marshall rang up his wife from a phone on the circular coffee table, and an eager Johnson grabbed for the receiver. “Cissy, this is Lyndon Johnson.… I just put your husband on the Supreme Court.” The stunned wife replied, “I sure am happy I’m sitting down.”
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