Thurgood Marshall (54 page)

The walkout illuminated the tension between Marshall’s strong belief in the law and his opposition to segregation, even if it were legal. A few weeks later at a panel discussion, Marshall was asked how he could have supported the idea of protesters disobeying the law. “The [resolution] didn’t advocate disobedience,” he argued. “[It] gave everyone the right … to disobey a law which they considered against their conscience.… I seem to remember some place in the Bible where Jesus grabbed some money-changers and kicked the living daylights out of them, which I assume was against the law.”
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By late 1964 Marshall’s dissident voice was creating enemies. He became worried that his telephone might be bugged and got Buck Owens, the private detective who had found a bug for him at the NAACP, to take a look around his apartment. Owens found one, but while Marshall suspected the FBI was shadowing him, Owens could not prove the bureau had placed it.

Shortly after Owens found the bug, he told the judge that Martin Luther King, Jr., was also being bugged. According to Marshall, Owens said an FBI agent confided in him that King was being targeted by the agency. “It was personal between King and Hoover,” Marshall said years later. “He bugged everything King had. Everything.” An FBI agent
phoned Owens and admitted to being part of the team assigned to bug King. The agent asked Owens to have Marshall tell King that he was surrounded by listening devices, in his bedroom and even his bathroom. Marshall agreed to let King know what was going on. But when an alarmed Marshall got him on the phone, King was unconcerned. “Oh forget it, nothing to it,” he responded. Marshall later said, “It just didn’t interest him. I’ve never been able to understand that. Maybe he felt that he wasn’t doing anything wrong.”

The FBI’s surveillance led the bureau to circulate stories about King’s indiscriminate philandering. Marshall heard the stories, but he did not give them a lot of credence. His critical view of the civil rights leader had softened after King won the Nobel Peace Prize. But the sex stories continued to flow, presenting Marshall with a puzzle. “I don’t know if a man can humanly do all the things that he was supposed to be doing,” Marshall said. “Five and six times a night with five and six different women. We added it all up, I mean, he just couldn’t be all them places at the same time. I don’t believe in it personally. That’s between him and Hoover. I don’t know whether he was right or Hoover was right, but I never found Mr. Hoover to have lied once, not once.”

King’s troubles, as well as the explosive events of the civil rights movement during the early 1960s, were like news from a distant shore to Marshall. These days he generally learned about the movement’s crises in the morning papers. At lunch with Ralph Winter one day, he remarked that he was amazed that civil rights had finally become “a front-page issue” in major papers.

Marshall continued grappling with the law, doing diligent, if not brilliant work. “When he was on the Court of Appeals in the Second Circuit here in New York, I think he was regarded as tolerable but not in any sense as a strong addition to the bench,” said Walter Gellhorn, then a Columbia law professor who had worked with Marshall at the LDF.
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By mid-1965 Marshall had written ninety-nine majority opinions, eight concurring opinions, and only twelve dissents. His dissents showed an inclination to embrace a wider interpretation of constitutional protections than the other judges.

In his most celebrated dissent on the Second Circuit, People of New York v. Galamison (1965), Marshall sided with civil rights protesters who were blocking access to a main road leading to the New York World’s Fair. The demonstrators were angry over poor-quality housing and a lack of jobs for blacks in New York. He argued that the demonstrators had
guarantees of free speech—even if they were violating traffic laws. When asked about the rights of people who wanted to go to the World’s Fair without interference from demonstrators, Marshall replied that fair-goers’ rights were not compromised by the protest. “They’ll go around to another entrance,” he said.

In another example of his central belief in individual rights, Marshall wrote the majority opinion for a three-judge panel that found a murder suspect could not be tried twice for the same crime by a Monroe County, New York, court. The opinion,
Hetenyi v. Wilkins
(1965), was the first time that federal law prohibiting double jeopardy was extended to local courts.

Although his work on the court did not make national news, Marshall had adjusted to life on the federal bench after four years. He was respected by his fellow judges, he had lifetime tenure in a good-paying job, and he had a happy life in New York. His sons were in good schools, and he had a steady routine with his wife and friends. Then, in July 1965, he got a phone call.

As he was eating in the judges’ dining room, a bailiff came running over to his table. Panting and red-faced, the bailiff could barely speak once he got Marshall’s attention. Concerned, Marshall said, “Fred, what in the world is wrong?”

“The president wants to speak to you,” the bailiff sputtered. “He’s on the phone!” Marshall gave him a bewildered look and asked: “The president of what?”

“The president of the United States!”
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Johnson’s Man

I
N
J
ULY 1965
, when President Johnson called Thurgood Marshall, the civil rights movement had taken to the streets with marches, protests, and even riots. With TV news cameras rolling, state troopers in Selma, Alabama, had beaten people demanding their voting rights. Malcolm X had been assassinated and become a martyr. Black militancy was on the rise, and whites were fleeing the cities. In the middle of all this turmoil, Marshall had unique status. He was a respected black leader, a living symbol of America’s ability to achieve peaceful racial progress, and an advocate of law and order.

As he went to get Johnson’s call, Marshall was puzzled. Why would the president be calling him? He had met Johnson in Texas during the 1940s. At that time Marshall was fighting the all-white primary system. Later the NAACP had supported Johnson in his race for the U.S. Senate. He had bumped into him a few times in Washington when Johnson had been Senate majority leader. Johnson had even invited him to a White House Fellows ceremony a few days earlier. But that had been their only recent contact.

When he got to his chambers, Marshall was surprised to find it really was the president of the United States on the phone. They talked for two or three minutes before Johnson, in his abrupt way, said: “I want you to be my solicitor general.” The job offer hit Marshall like a lightning bolt. It was a godsend for a man who was trudging along—if not bored—as an appeals court judge. But he immediately realized that he couldn’t leap at
the job. He had deep concerns about leaving a lifetime appointment with a guaranteed pension. And the annual salary of the solicitor general was $4,500 less than his current salary.

“Well, Mr. President, I’ll have to think it over,” he responded. The president told him to take as much time as he wanted. A flattered, excited Marshall went home to tell Cissy about the offer and the prospect of a high-pressure job in the vicious political hothouse that was Washington, D.C.

As soon as Marshall arrived at the office the next morning, the phone rang and his secretary announced that the president was on the line again. The judge was surprised to hear from him so quickly: “Well, Mr. President, you said I had all the time I needed.” Johnson replied, “You’ve had it.” In an instant Marshall had to make a decision that would affect the rest of his life. Marshall decided to grab the moment and the excitement. His voice breaking with emotion, he told the president he would be glad to be the nation’s first black solicitor general.

The next day, July 9, 1965, Marshall flew to Washington to see Johnson in the Oval Office. He was excited but played coy by complaining about the loss of salary he faced if he took the job. Johnson was not sympathetic: “You don’t have to tell me. I can tell you everything about your situation, including what you’ve got in your bank account. I’m still asking you to make the sacrifice.”

As the two large, strong-minded men sat in the quiet of the Oval Office, the blustery and charming Johnson made two points to Marshall.

First, he complimented Marshall’s ability as a lawyer and said he needed an outstanding legal mind to represent him before the Supreme Court. The compliment was not made casually. Marshall would be replacing Archibald Cox, who had stayed on as solicitor general after Kennedy’s assassination. The Harvard professor was widely respected for his hard work and knowledge of the smallest detail of the law. Cox had not wanted to leave, but when he sent a note to the president asking for a vote of confidence, Johnson used it as an opportunity to move him out. Given the ruffled feathers in legal circles, there were sure to be questions about whether Marshall was up to the task of replacing the esteemed Cox.

Johnson’s second point had to do with the color of Marshall’s skin. The president told him that he wanted people, young people of both races, to come into the Supreme Court and ask who was that “Negro” up there arguing? And somebody would say, “He’s the solicitor general of the United States.”

Johnson did his usual masterful job of persuasion. But nothing the president said was as large in Marshall’s mind as his unspoken desire to be on the Supreme Court. However, the president refused to make any promises about future appointments. “You know, this has nothing to do with any Supreme Court appointment,” the president said. “I want that distinctly understood—there’s no quid pro quo here at all. You do your job. If you don’t do it, you go out. If you do it, you stay here. And that’s all there is to it. ”
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Contrary to what Johnson may have told Marshall, the president had given thought to putting him on the Supreme Court. Johnson viewed the solicitor general’s job as a tryout for the possible first black associate justice of the Court. Ramsey Clark, then a deputy attorney general and a fellow Texan, had mentioned Marshall’s name to the president a few weeks earlier while sailing, and the president had seemed excited.

“I saw Marshall give a speech at a luncheon in ’65,” Clark said in a later interview. Shortly after that speech the president asked Clark and his wife, Georgia, to come on a boat trip with him and Lady Bird Johnson. Johnson and Clark had gone belowdecks to talk about appointments. The president lay down on a bunk as the conversation droned on. Finally the two came to the opening for solicitor general.

“When I mentioned Marshall’s name, Johnson sat bolt upright,” Clark recalled. “He nearly bumped his head on the low ceiling. I don’t think he ever thought of anybody else; he wanted Thurgood Marshall to be his solicitor general.” Clark recalled that the first words out of Johnson’s mouth were, ‘Ah ha, he’s going on the Supreme Court.’ ”
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Johnson later confirmed that he intended to put Marshall on the high court the minute he appointed him as solicitor general. “I did not tell Marshall of my intentions at this time,” Johnson said in an interview. “But I fully intended to eventually appoint him to the Court. I believed that a black man had to be appointed to that body.… I wanted him to serve as Solicitor General as an advocate to prove to everyone, including the President, what he could do.”
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Johnson also told his wife, who wrote the pledge in her diary: “Lyndon admires Judge Thurgood Marshall and spoke of the possibility of asking him to be Solicitor General, and then if he proved himself outstanding, perhaps when a vacancy on the Supreme Court opened up, he might nominate him as a justice—the first of his race,” Lady Bird wrote two weeks before Marshall’s selection as solicitor general was announced.
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When Johnson called his attorney general, Nicholas Katzenbach, to tell him about Marshall’s appointment, Katzenbach warned the president that if Marshall did not eventually get a seat on the Supreme Court, it could cause problems: “If you do that, you are making an implied promise.” Katzenbach was concerned that if a vacancy opened and Johnson failed to put Marshall on the Court, the president would have to deal with the political fallout, from both liberals and blacks. “All of Johnson’s record on civil rights, and it was a hell of a record, would go down the drain,” said Katzenbach.
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On Tuesday, July 13, Marshall and Johnson walked into the White House press room to announce that Marshall would become solicitor general. The moment the two appeared, Marshall could hear whispers as reporters began asking each other, “Who’s resigning from the Supreme Court?” Once they quieted down, Johnson formally introduced Marshall, calling his nominee one of the country’s most distinguished advocates.

There was immediate concern that segregationists would fight Marshall’s confirmation, much as they had tried to kill his nomination to the Second Circuit. However, Johnson privately assured him that he could “take care of the confirmation.” Putting an arm around his new nominee, the president told him, “If you can stand the gaff, I can.”
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