Thurgood Marshall (58 page)

In another strategic move, the president had Marshall speak with the NAACP’s Roy Wilkins to ask that civil rights leaders not launch any protests. Johnson felt Marshall stood a better chance of confirmation if the racial tension in the country subsided, at least temporarily. Wilkins told Marshall he was happy to help. “Roy was extremely protective of Thurgood,” recalled Herbert Hill, who then was heading the NAACP’s labor relations.

The White House was thrilled when the American Bar Association rated Marshall “highly acceptable” as a nominee. James Eastland, chairman of the Senate Judiciary Committee, after prodding from the president, began the hearings on July 13, exactly one month after Johnson had named Marshall as the nominee.

The opening day of the hearings was highlighted by Senator McClellan’s questioning. The Arkansan, whose thick, black-framed glasses stood out against his weathered white face, began the hearings by expressing alarm at the nationwide outbreak of riots. Making a statement for more law and order in the streets, McClellan asked Marshall if he would allow police to use wiretaps. And would he try to overturn the
Miranda
decision and permit the police to operate more freely.

Calmly, Marshall said he could not answer because the issues were still being settled in the courts. He repeated the answer several times, but the senator grew irritated and persisted by asking Marshall if he were a judicial activist. Should a judge go beyond the Constitution in making a ruling? “The Constitution is what is written,” Marshall said flatly, leaving
the senator staring at him. As he had been coached by White House advisers, Marshall said nothing more.

McClellan, in disgust, finally stopped asking questions. “I will not pursue it any further at the moment but I must say to you that this leaves me without the necessary information I need … to consent to your appointment,” McClellan said. Marshall had lost his vote.

The hearings resumed the next day. North Carolina’s senator Sam Ervin, a large man with heavy jowls who was a Harvard-trained lawyer and an ardent segregationist, took the lead by peppering Marshall with questions about how judges should interpret the Constitution. In the aftermath of the
Brown
case, Ervin and other southern politicians had become bitterly opposed to judges who asserted individual and minority rights over states’ rights. When Ervin asked Marshall if judges should stick to what was written in the Constitution, a states’ rights argument, Marshall replied, “Yes, Senator, with the understanding that the Constitution is meant to be a living document.” Senator Ervin scolded Marshall for talking about a living Constitution: “That statement does not mean to me that the Constitution is a living document; it means that the Constitution is dead and we are ruled by the personal notions of the temporary occupants of the Supreme Court.”

Ervin also turned to the
Miranda
ruling and asked Marshall if the courts should accept voluntary confessions when the suspects had no lawyers and had not been told of their right to remain silent. Marshall, speaking slowly, as if considering his response, said: “Well, Senator, the word
voluntary
gets me in trouble.… I tried a case in Oklahoma where the man ‘voluntarily confessed’ after he was beaten up for six days.” The hearing room erupted with laughter.

Ervin and Marshall continued to spar, with Ervin trying to get Marshall to disavow the
Miranda
rules and Marshall repeatedly explaining that he could not talk in specifics. Ervin finally replied, “If you have no opinions on what the Constitution means at this time you ought not to be confirmed.” The hearings were going badly for the nominee, and the Johnson White House was distressed.

On July 20, Chairman Eastland, apparently convinced that he and his fellow southerners had Marshall on the ropes, dropped the veil of questions and went to the heart of their fears about putting a black man on the Supreme Court. “Are you prejudiced against white people in the South?” he asked. Lifting his eyeglasses off in a studied manner, Marshall
replied: “Not at all. I was brought up, what I would say, ‘way up south’ in Baltimore, Maryland. And I worked for white people all of my life until I got in college. And from there most of my practice of course was in the South and I don’t know, with the possible exception of one person that I was against in the South, that I have any feelings about them.”

The response was good but not good enough. Senator Strom Thurmond felt free to launch his own attack, asking Marshall detailed questions about the history of the Thirteenth and Fourteenth Amendments. At one point the senator’s questioning became absurdly arcane: “What constitutional difficulties did Rep. John Bingham of Ohio see—or what difficulties do you see—in congressional enforcement of the privileges and immunities clause, article IV, section 2, through the necessary and proper clause of article I, section 8?”

The room fell silent as Thurmond, the former Dixiecrat presidential candidate, then in his sixties, finished a speedy, barely understandable reading of the question in his South Carolina accent. Newly elected Sen. Ted Kennedy, the younger brother of Sen. Robert Kennedy and the assassinated president, looked befuddled. He asked Thurmond for “further clarification” of the question. When Thurmond repeated the same question twice, Kennedy asked if the senator could get out the point of the question in some other way.

“I don’t think I can make it any plainer,” Thurmond said with a huff and continued to talk about sections and clauses in the Constitution, reaching new heights of obscure reference that lost most listeners.

“That’s the answer, I see,” said a flabbergasted Senator Kennedy as howls of laughter broke out in the hearing room.

Chairman Eastland called the room back to order and promptly began another volley of fire by asking Marshall if he was aware that the author of a book cited in one of his Second Circuit opinions was a Communist. “I positively did not know that,” Marshall replied, adding he would not have cited the book if he had known the author was a Communist.

The question was a bald setup. To bolster charges that Marshall was a Communist, the committee allowed the general counsel for Liberty Lobby, a right-wing political group, to testify. Michael D. Jaffe listed Marshall’s association with groups such as the International Juridical Association and the National Lawyers Guild. Jaffe added that Marshall had “a record of duplicity and arrogance unparalleled by that of any nominee to high judicial office in recent times.”

Marshall, sticking with the White House game plan, sat calmly and
made no reply, giving no credibility to the attack. His body language seemed to say the accusations were beneath his dignity.

The committee recessed for the weekend, and beginning that Friday night President Johnson began nonstop lobbying that carried into Sunday. On Monday, the final day in the two-week hearings, the negative tone had shifted. Several senators voiced kind words for the nominee. Only Senator McClellan took one last shot. He equated the riots in black ghettos around the nation with Marshall’s efforts to overturn laws of segregation. “A sentiment has been built up over the country to the point where some people feel that if you don’t like the law, violate it,” said McClellan, angrily slamming his fist on the dais. “And the Supreme Court takes the position that at its whim it can reverse decisions.… No wonder the fellow out in the street thinks—‘why can’t I do as I please.’ ”
⁵

The hearings ended on July 24, and despite an eleven-day delay orchestrated by Chairman Eastland, President Johnson’s power to persuade carried the day. The committee voted on August 3, by 11 to 5, to recommend Marshall be confirmed. But the final vote of the entire Senate was held off until the end of the month. By that time it would be more than two and a half months since Marshall had been nominated. The tension was getting to him and to his family. Marshall’s supporters tried to buck him up, but the nominee told friends and his White House helpers that he was concerned. Johnson’s staff assured him they had enough votes to seal his confirmation, but Marshall wondered if they were keeping him in the dark.

A few days later Senators Ervin, Thurmond, Eastland, and McClellan engaged in what newspapers called a six-hour mini-filibuster against Marshall’s confirmation. Thurmond returned to Marshall’s lack of knowledge about the history of the Fourteenth Amendment. The senator derided Marshall as a man who did not even know the names of the people who had drafted the Fourteenth Amendment—which Marshall was supposed to be an expert on. Senator Kennedy interrupted to ask Thurmond if he knew who the members of that committee were. Thurmond turned red and finally said he would let Kennedy know later. “He didn’t know himself,” said Marshall.

When the filibuster ended, the Senate voted 69–11 to approve Marshall for the high court. Southern senators were almost uniformly opposed to Marshall. But Johnson had succeeded in persuading twenty senators to simply not vote. That was a safety-valve strategy for southerners who were up for reelection. They couldn’t afford to be on the
record supporting Marshall, but they could live with having missed the vote. And without those votes, the margin of victory was that much greater for Marshall and Johnson.

After the victory the new justice got a call from President Johnson. He congratulated Marshall and immediately added, “But the hell you caused me, goddammit, I never went through so much hell.” Marshall, never at a loss for a comeback, said, “It was your idea, it wasn’t mine.” Johnson cracked a laugh and said, “I guess that’s right.”

* * *

On September 1, 1967, Marshall privately took the judicial oath in the chambers of Justice Hugo Black, a former Ku Klux Klansman from Alabama. Black, a leathery, hunched man at seventy-nine, was the senior member of the Court, having served since 1937. Black’s tenure made him the dean of Supreme Court justices, and he volunteered to administer the oath as an act of friendship. He and Marshall had known each other for thirty years, since Marshall and the NAACP had supported Black’s nomination to the high court despite criticism from many in the liberal fold.

The new job, in addition to its prestige, came with a $10,000 raise, taking Marshall’s salary to $39,500. On one of his first days at the Court, he called a former aide in the Solicitor General’s Office, Louis Claiborne, and took him to lunch. “We went to Mr. Henry’s on Capitol Hill and had our three martinis,” Claiborne said. “He picked me up, and here he was in this cream-colored, gaudy, twenty-foot Cadillac. And he says to me, ‘See this, I haven’t gotten me my first paycheck yet, but that’s the nigger in me. I went out and bought one of these for me and one for Cissy.’ ”

On Monday, October 2, Marshall was publicly given the constitutional oath at the U.S. Supreme Court, making him the ninety-sixth justice. President Johnson, former justice Tom Clark, Attorney General Ramsey Clark, and several of Marshall’s family and friends were there for the ceremony. “People were everywhere when he took his seat,” recalled Grafton Gaines, Marshall’s courier from the Solicitor General’s Office. “You know, that was a big thing. Even the ones that hated blacks came to the Court.”
⁶

Although he was the first black person in the tight-knit fraternity of justices, the so-called Brethren, Marshall immediately fit in well. He had been before the Court enough times as solicitor general—and as the NAACP’s lawyer—that he was greeted as a friend. Justice Byron White, in an interview years later, noted that Marshall had been expected to get
a Supreme Court seat for several years. And Justice William Brennan immediately befriended Marshall. “When he came on the Court there were many others delighted, too,” Brennan said in an interview later, “but none was so much as I.”
⁷

Marshall did ruffle a few feathers in his first days, however. He began asking the three justices who had been on the Court in 1954 (Chief Justice Warren, Hugo Black, and William O. Douglas) about an unpublished opinion, written by Justice Stanley Reed, dissenting against the school desegregation ruling. Warren had persuaded Reed to vote with the majority so the
Brown
ruling would be unanimous. Now, thirteen years later, Marshall wanted to see the stillborn dissent.

“I just asked,” he said in an interview later. “And nobody knew at all. They all took the Fifth Amendment!” When Marshall persisted over several weeks, unable to get anything from men he called “the great liberals,” he went to see his friend Earl Warren. When he asked about the
Brown
case all conversation ceased and the chief justice gave him a chilly stare. At that moment Marshall thought to himself that even though he was now in “the club,” he was “still a nigger.”

Making one last try, Marshall asked Tom Clark, now in retirement, about
Brown
. The conservative Texan surprised Marshall. He told him about the dissent and said there were no major surprises in it—just an argument in favor of separate but equal as the law. Even after Clark came clean with him, Marshall nursed resentment that his fellow liberal justices had not been direct with him.
⁸

But Marshall quickly settled into the routine of a Supreme Court justice. In November, just a month after he joined the Court, Marshall wrote his first opinion in a unanimous decision granting defendants the right to an attorney at every stage of the criminal process. In
Mempa v. Rhay
, a case where a poor teenager was convicted of stealing a car but given no legal counsel at his probation hearing, Marshall wrote: “All we decide here is that a lawyer must be afforded [to the defendant] at this proceeding whether it be labeled a revocation of probation or a deferred sentencing.”

Justice Black had been prepared to vote against the defendant, but when he read Marshall’s draft of the opinion, he decided to make the ruling unanimous. “Although I voted the other way [in conference among the justices] on the assumption that probation here was separate and apart from sentencing, I am now persuaded by your analysis that the so-called probation was in reality a deferred sentence,” Black wrote to Marshall,
adding that “your first opinion for the Court [was] written with brevity, clarity and force.”
⁹