Thurgood Marshall (53 page)

Meanwhile, at the Second Circuit, Marshall’s confirmation was cheered by Chief Judge Lumbard, who used the occasion to arrange a group photo of the circuit’s nine judges. The photographer took some test shots before the judges arrived and blew a fuse. A secretary called for an electrician. Marshall arrived a few minutes later. Seeing a black man walk in, the secretary instinctively said, “Oh, you’re the electrician?” Judge Marshall let it go with a laugh. And the secretary, recognizing her mistake, apologized. When Marshall got back to his chambers, he told his clerk what had happened, with less bitterness than irony: “Boy, that woman must be crazy if she thinks [a black man] could become an electrician in New York City.”
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Even though he had been there for a year, Marshall’s career as a judge was still skating dangerously close to the edge of his ability because he was dealing primarily with big business. He heard cases involving the Securities and Exchange Commission, the National Labor Relations Board, and corporations that were suing each other. For advice when he was
over his head, he walked over to the chambers of J. Henry Friendly, a politically conservative judge who became Marshall’s mentor.

He also relied heavily on his clerks, often learning the law with them. His first two clerks came from Yale Law School at the recommendation of a Yale professor, Louis Pollack, who was on the LDF’s board. Two later clerks were from Harvard. Marshall felt he had to have the very best law students to compensate for his lack of experience. One consequence of Marshall’s insecurity over his legal skills was that he selected no clerks from less prestigious law schools, such as his own alma mater, Howard. And with virtually no blacks at the Ivy League schools, none of Marshall’s clerks were black.

“When I worked for him, I did a lot of the writing, but I always knew exactly what to say,” Ralph Winter, Marshall’s first clerk, said in an interview. “I was not out there composing my own stuff. There is no question who was making the decisions, absolutely no question about that.”

Marshall developed an intimate relationship with his clerks as he spent less time with old friends at the LDF. “He never drank in the office, ever, but when we went to his home in the evening—going to his home for dinner was quite an experience,” recalled Marshall’s second clerk, James O. Freedman. “Cissy would make dinner, and then all of a sudden all of these people would start wandering in. And these were his buddies, his card-playing buddies. Marshall was in his shirtsleeves and his suspenders and people started playing cards and the bourbon came out.”
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With his new paycheck Marshall bought a big white Cadillac and had vanity tags put on it, USJ for United States Judge. Marshall delighted in driving the car around Harlem, Freedman recalled, and gave off a sense of “I come from here and these people worship me.”

However, being a federal judge also meant that Marshall was no longer in the limelight, and he hated that. He missed reading about himself in the New York papers and told Freedman he could not understand why Edward Bennett Williams, then a young hotshot lawyer defending several Mafia dons, won headlines as a legal wizard. When Williams came to the Second Circuit to argue a case, clerks as well as reporters got into a frenzy, and Marshall grew irritated. He took quiet pleasure in the court’s later ruling against Williams’s client.

Being hidden away as a judge also meant fewer people recognized Marshall. He told his friend Bill Coleman that his lower profile came in
handy one day. “When he was on the Second Circuit,” Coleman recalled, “this lady who lived on Park Avenue used to call him and ask him to come over, and he said, ‘Oh I can’t do that, I’m a judge now.’ And he finally said he worked it out to come over … around lunchtime, but he stayed until about [midnight], because he just assumed that the same guy wouldn’t be on the elevator. So he comes over, goes up, and at midnight, the same guy’s on the elevator, and the guy says, ‘Gee, you must have had a good time with Mrs. So-and-so.’ When he gets down to the bottom, the guy says to him, ‘Gee, Congressman [Adam Clayton] Powell, I still want you to give those white folks hell in Washington.’ And Thurgood said, ‘I certainly will.’ ”
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During his first few years as a judge, Marshall became taken with the high-society party scene in New York, according to his good buddy Monroe Dowling. “There was a hell of a party in one of the Waldorf Towers, and I took Thurgood with me,” Dowling said in an interview. “In fact, every time I went somewhere I took Thurgood. He was good company, and he always had something to say in groups. He’d tell jokes, be loud and crazy.”

At the Waldorf party Dowling and Marshall were the only two black faces in the room. The liquor was flowing, the music was pumping, and then the host brought in three white prostitutes. Marshall, feeling good after a few drinks, tried to talk Dowling into staying and playing with the girls. “Yeah, we ought to stay, but I haven’t got the nerve enough,” Dowling told him before dragging Marshall out.
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Aside from partying Marshall had little to stir his mind or soul. His big challenge was coping with the tedium of being hidden among law books and untangling the minutiae of tax laws. “My sense was that during those years he was very unhappy, that he was bored,” said Freedman. “He found it very hard to be alone.… He would spend a lot of time standing at the window looking out. They were doing some construction and he would watch this great big construction ball.”

One of his few thrills came in the fall of 1962, when Marshall found himself back in the newspapers after he was invited to be the lone black speaker at a Lincoln Memorial ceremony commemorating the approaching hundredth anniversary of the Emancipation Proclamation. The last-minute invitation came after the Kennedy White House sparked an uproar by not asking any black people to speak at the event. To mollify black leaders who were planning a boycott, the administration announced that Marshall would join the former presidential candidate
Adlai Stevenson, New York’s governor, Nelson Rockefeller, and others for the ceremony.

About the same time the administration found itself thinking it might want to nominate a black person for the Supreme Court seat left vacant by Felix Frankfurter’s retirement. Marshall’s name did not come up, though. The Kennedy brothers fixed their sights on the more experienced William Hastie, age fifty-eight. However, Bobby Kennedy thought Hastie’s nomination would hurt the president politically. Also, the attorney general worried that Hastie was too conservative. The job went to Kennedy’s labor secretary, Arthur Goldberg.

Although Marshall had not been considered for the Supreme Court seat and had prickly feelings about Bobby Kennedy, he stayed in touch with the attorney general on civil rights issues. “Marshall knew every Alabama judge,” recalled James Freedman. He not only knew which judges played straight on race but had an in-depth understanding of civil rights laws. Marshall’s expertise helped the Kennedys during integration crises at such universities as Alabama and Mississippi. Justice Department officials also consulted Marshall in June 1963, when Medgar Evers, the NAACP’s field secretary in Mississippi, was assassinated. Marshall had befriended Evers and greatly admired his low-key, effective style, and he advised the Kennedys on how to deal with the NAACP as well as local officials after the murder.

The State Department then asked Marshall to travel to Africa as the president’s representative on a goodwill tour. Berl Bernhard, director of the U.S. Civil Rights Commission and a prominent white lawyer, accompanied Marshall on a trip designed to help newly independent nations in East Africa deal with civil rights and economic development.

In July of 1963 Marshall met Bernhard in Rome, and together they flew to Nairobi, where three years earlier Marshall had been involved in writing the Kenyan constitution. “All the way down on the plane I was hearing from Thurgood, ‘Everybody’s going to be at the airport when I get there,’ ” Bernhard recalled in an interview. “Thurgood, we’re getting there at three-thirty, quarter to four in the morning, nobody is going to be there.” Marshall insisted there would be a red carpet lined with the president’s cabinet. As they approached Nairobi’s airport, Bernhard looked out the window and saw an empty tarmac. He teased his companion that there was no welcoming party.

“So we land,” Bernhard continued, “and son of a bitch, if it isn’t—these people come running out and pull a red carpet out.” As the door
opened Marshall quickly elbowed his way in front of Bernhard: “Get behind me, they don’t want to see no Europeans down here. This is for Thurgood.” Bernhard protested that they both represented the U.S. government. “You are a white representative of the government,” said Marshall. “They want to see Thurgood.”

In Kenya, Marshall met with many of the friends he had made while working on the constitution. Whenever he introduced Bernhard, he joked that his companion was the “mouthpiece from the Kennedy administration.” Bernhard laughed with Marshall, but he understood that beneath the laughter Marshall did not like Bobby Kennedy and considered both Kennedys lacking genuine commitment to civil rights at home or in Africa.

At one point Marshall asked Kenya’s secretary of the interior to get him a leopard skin because he’d promised to bring one home to Cissy. But the secretary told him that leopards were out of season. “I don’t want to listen to that, I promised Cissy a leopard skin,” Marshall replied. “I’m not going home without one, she’ll just whip the shit out of me.”

Marshall took his request to the top, Jomo Kenyatta. With his arms waving and his deep voice booming, Marshall told the president that he had to have a leopard skin for Cissy. Bernhard watched in amazement: “I think he called him Jomo, for God’s sake. Kenyatta was very deliberate, very dignified, you know. So he just listened to Thurgood and he said, ‘Which leopard?’ ”

Kenyatta and Marshall also had long, sometimes heated, talks about how the Indian minority was being treated. The Indians, whose land and property were being confiscated by the government, complained that the nation’s bill of rights, written by Marshall, was not protecting them. Kenyatta told Marshall that during the ongoing transition from colonial rule to independence, which did not officially start until December, the guarantees of rights and protections were not yet in place. But Marshall challenged him: “I don’t care about listening to that, that’s why we have the Bill of Rights.”
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Years later in an interview, Marshall recalled his talks with the Kenyan president and said he viewed Kenyatta as one of the world’s true leaders: “I think he was one of the greatest individuals in history. One of the strongest willed, effective people I know of. And slightly rough. When violence was necessary he was with it.”

Kenya’s president had good feelings about Marshall, too. “Kenyatta obviously adored Thurgood,” Bernhard recalled. “Thurgood was a god,
there was no question about it. At one point I told Thurgood that he should not be telling Kenyatta how he should be running the government. I said, ‘You’re behaving like the Emperor Jones.’ ” Marshall responded: “ ‘White boy, when we’re in East Africa, I am the Emperor Jones!’ ”

The trip was a success in strengthening ties between the United States and East Africa. But when Marshall returned to the United States, the nation was caught up in several heated battles over civil rights issues. The most explosive was an effort by A. Philip Randolph, the seventy-four-year-old black labor leader, to have a massive march on Washington. Randolph and several other civil rights leaders wanted to take a stand against the violent attacks that Birmingham sheriff “Bull” Connor had used to put down black demonstrators, including Martin Luther King, Jr.

The Kennedy brothers, as well as most of the Congress, were afraid the march would incite race riots. President Kennedy met with the leaders and asked them not to march. He told them that a large number of blacks marching through the capital not only was dangerous but would endanger passage of a civil rights bill.

Marshall shared many of the president’s concerns. He did not see the point in marching and making speeches and did not go to Washington. Marshall acknowledged that he watched it on TV, but he refused to say what he thought of it. “No comment.”

By late 1963 Marshall was trying to focus on his work at the Second Circuit when he—and the nation—was devastated by President Kennedy’s assassination. “I think Jack was terrific,” Marshall recalled. “I said I was going to stop reading newspapers when I picked up the paper about Kennedy. Nothing but bad news. That was awful.”

Digging into his work in the difficult time after the assassination, Marshall began to find his voice as a judge. He did not often dissent, but in early 1964 he dissented in a major case,
Angelet v. Fay
, which involved a drug bust. The defendant claimed that after his conviction federal law had changed and that the evidence used against him would now be inadmissible. A majority of the judges on the Second Circuit ruled that the new, stricter laws on search and seizure could not be applied to past cases. But Marshall objected, arguing that protections against illegal searches should be retroactive.

His voice in dissent was also heard during the May 1964 celebration of the tenth anniversary of the
Brown
decision. At a news conference
commemorating the event, he said, “Desegregation obviously has not proceeded as fast as we would have liked.” Unlike his 1954 prediction of rapid school integration—“come hell or high water we’ll be free by ’63”—ten years later he said it would take “at least a generation to bring about any social change” in the nation’s still heavily segregated schools. When asked about his decision to send his own children to a private academy, the elite Dalton School, instead of the mostly black and Puerto Rican public schools near his apartment in Harlem, Marshall replied: “I think they should have the best education I can afford.”
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Judge Marshall’s contrary voice grew sharper in the fall, when he traveled to St. Louis as the first “Negro delegate” from New York City to represent the Episcopal Church at its triannual convention. When southern laymen led the convention in a vote to condemn civil rights activists for disobeying the laws of segregation, Marshall stormed out, leaving behind nationwide headlines. Marshall was angry over the defeat of a resolution that would have “recognized the right of any person, for reasons of conscience, to disobey laws or social customs in conflict with the law of God so long as such person is willing to carry out his protest in a nonviolent manner.”
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