Thurgood Marshall

by Juan Williams

  J. Edward Lumbard, the chief judge of the Second Circuit, swore Marshall in and then told the large audience: “During the past twenty years few—if any—members of the American bar have had so varied an experience.” Lumbard said the late John W. Davis, Marshall’s opponent in the Brown cases, once predicted, “This fellow is going places.” Lumbard concluded, “All I need to say, is: Here he is.”2

  A smiling Marshall thanked his wife and President Kennedy. He promised to do his best. There were no hints that getting the Senate to confirm this nomination was going to be a grueling ordeal.

  Behind the scenes, however, support for Marshall was fractured. Supreme Court Justice Felix Frankfurter had supported Bob Carter for a district court judgeship and was telling friends that Marshall was not qualified for the appeals court. Bill Coleman, Marshall’s friend and Frankfurter’s former clerk, got word of the negative comments. Full of concern, Coleman sent the justice a letter praising Marshall and asking him to hold off his criticism. Frankfurter responded, “I have said nothing to anyone that I did not say to you, and what I did say was merely to negative the perfectly absurd hallelujahs with which his nomination was greeted, as though a great lawyer had been elevated to the judiciary.” Frankfurter went on to express admiration for Bob Carter and noted that Carter had made “a deep impression” on several other Supreme Court justices, a compliment he did not extend to Marshall.3

  Coleman wrote back, pleading with Frankfurter not to make his criticisms public. Coleman wrote that while he liked Marshall, he had “never stated that a great lawyer had been elevated to the judiciary.”4

  Frankfurter ceased his public critique of Marshall, but similar comments were making the rounds in legal circles and on Capitol Hill. Marshall’s nomination remained in limbo until the Senate Judiciary Committee, chaired by the segregationist James Eastland of Mississippi, scheduled hearings. While waiting for the committee to act, Marshall began working as a federal judge. “I talked to him about writing opinions. This was something new to him,” Judge Lumbard said in an interview. “Well, I helped him with some opinions [because] he wanted to quote a lot of stuff, verbatim. He was a good beginner, he wanted to do things right. He was very cooperative and carried his share of the burden.”

  Many of Marshall’s critics complained that he was expert in only one area of the law, civil rights. Lumbard said that was not a crippling problem. “We knew damn well he couldn’t have known much about corporate law, that was taken for granted, that was true of most of us,” he said. “He was diligent, he had good law clerks to help him.… It was a good thing to have somebody like Thurgood to be the first [black] man on the court. He was not abrasive, he didn’t have a chip on his shoulder. We all respected him.”5

  Even with the chief judge’s respect, Marshall was not given his own office in the courthouse. Since he was not confirmed, Lumbard made no permanent arrangements to house him. Marshall and his staff had to find new office space every few days. “We had a pretty lousy set of spaces,” recalled Ralph Winter, a Yale law student and Marshall’s first clerk, who later became a federal judge. “They weren’t judicial chambers, they were some bureaucratic offices. When another judge would go on vacation, we’d move down there.”6

  As the low man on the circuit court, Marshall had to deal with the least interesting cases—taxes, corporate law, even the “Doctrine of Unseaworthiness in Admiralty.” He also did a lot of Wall Street securities cases because the other judges would recuse themselves when their stock ownership put them in a potential conflict of interest. Marshall joked with his friends that since he was a poor black man and had never owned any stocks, the other judges automatically assumed that he could hear all those cases.

  A judge’s life was very different from the daily routine Marshall knew at the LDF. There were no wild characters coming in and out of his office. Marshall’s phones hardly rang, and there was almost no talk of the latest racial crisis. And while he got a raise (up $7,000 to $25,000 a year), he missed the sudden requests to jump on the next plane and walk into hostile courtrooms.

  To remind himself of the old excitement, Marshall would occasionally take a twenty-minute subway ride uptown to the LDF’s offices to say hello. But those visits became fewer and fewer. As a judge he had to distance himself from the LDF’s legal cases and his successor. And in a painful act he had to pull away from his old friend Roy Wilkins. “He and Roy were so close,” recalled Cissy Marshall in an interview. “They were like brothers. He was closer to Roy than to his own brother. And then we had to cut all that out, cut it off.”

  Marshall may have lost some friends, but he was an oddity who attracted attention in the staid corridors of the federal courthouse. Several of the secretaries would come by to see Marshall and even to get a glimpse of Alice Stovall, the first black secretary on the circuit. The new judge was extremely popular among law clerks. Every morning clerks from other judges’ chambers would come by to have coffee and listen to Thurgood Marshall stories. “He had a remarkable ability to take a situation fraught with violence and other terrible things and have a humorous end to them,” said Winter. “He could talk about things they never imagined,” added Stovall.

  In January of 1962, three months after Marshall had been sworn in, the White House resubmitted his nomination to the Senate. Chairman Eastland handpicked three senators to handle the nomination. The subcommittee included two segregationist Democrats from the South [John McClellan, an Arkansas Democrat, and Olin Johnston, a South Carolina Democrat] and Roman Hruska, a Nebraska Republican who was described by one newspaper as “at best, lukewarm,” when it came to civil rights.7

  The Kennedy brothers were rumored to have made a deal with Eastland to ensure that Marshall would get a fair hearing. Eastland supposedly demanded that the White House nominate W. Harold Cox, his college roommate and a segregationist, for a federal judgeship before he would send Marshall’s name to the Senate. “Tell your brother that if he will give me Harold Cox, I will give him the nigger,” Eastland reportedly said to Bobby Kennedy.8 The story may be more apocryphal than true; Cox had been confirmed for a federal judgeship before the Kennedys agreed to nominate Marshall to the bench.

  Whether any deal had been struck or not, Senator Johnston, the chair of the subcommittee, showed no interest in holding quick hearings on Marshall’s nomination. Johnston was in a dogfight of a campaign against his state’s segregationist governor, Ernest Hollings. He could not afford to have Marshall confirmed because Hollings was sure to use the confirmation as a platform for racist demagoguery. Johnston twice scheduled hearings and even had Marshall come to Washington. Both times he canceled the hearings.

  By April, six months after Marshall had been sworn in, there still had not been a hearing on his nomination, and stories began to appear criticizing the Senate for its stalling. Reporters pointed out that two judges, both ardent segregationists, had been confirmed just days after they had been nominated. W. Harold Cox had been confirmed in one week, and J. Robert Elliott had been confirmed in only two.

  As Marshall’s nomination lingered, the Second Circuit’s chief judge wrote to Senator Eastland. Judge Lumbard complained that the court could not make decisions on critical cases if one of its judges was in danger of not being confirmed. Even though Lumbard had an uneasy relationship with Marshall—he was angry that Lumbard refused to give him permanent chambers—the chief judge wrote to Eastland that the Kennedy appointee had done “diligent and cooperative work.” Lumbard, clearly upset, added, “I have heard no complaint concerning him and I know of no reason why action upon his nomination should be delayed.”9

  Similarly, Sen. Kenneth B. Keating, a New York Republican, publicly criticized Eastland for allowing the Marshall nomination to be put in “a committee pigeonhole.” Keating also revealed that Eastland had ordered Senate staffers to dig up scandals that could smear Marshall. He said such a witch-hunt was unprecedented in Senate history: “Quietly and deliberately a distinguished American jurist is being victimized.”10<
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  With pressure building Senator Johnston agreed to have one day of hearings in May, a month before his primary contest. But Johnston did not show up, and neither did Senator McClellan. Nebraska’s Senator Hruska sat uncomfortably by himself as the two senators from New York, Keating and Jacob Javits, testified in praise of Marshall’s ability. Marshall also made a brief, nervous statement. He tried a preemptive strike by admitting he had been a member of the National Lawyers Guild but explained he had quit in protest when he realized Communists were running the organization. Meanwhile, Senator Keating charged that Marshall was being given a rough time simply because he was a symbol of the civil rights movement: “The controversy about Judge Marshall centers not about the man, but the results he has achieved.… If others do not share [Marshall’s] view, their arguments should be with the courts which have upheld his contentions, not with his persuasiveness as an advocate.”11

  There were to be no more hearings on Marshall for another two months. The delay left Marshall frustrated and nervous. He and his clerk, Ralph Winter, feared that if they made a mistake on any case, it would be used by Marshall’s detractors to stop his confirmation.

  While Marshall worried about every step he made as a judge, President Kennedy did little to press the Senate for speedy action on the nomination. The president invited Marshall to a White House dinner, and the nominee complained to Kennedy that the lengthy wait was wearing on his nerves and his family. The president dismissed Marshall’s worry. “Forget about it—it takes time,” he said.12

  The hearings resumed in July, a month after Johnston won his primary. McClellan of Arkansas still refused to attend. With two of the three senators looking on, the subcommittee’s lawyer hurled desperate accusations at Marshall. He charged that Marshall had violated canons of legal ethics by encouraging blacks in Texas to participate in lawsuits. Marshall was supposedly guilty of stirring up trouble where none had existed and hurting race relations. Senator Hruska tried to defend him, weakly noting that the NAACP, not Thurgood Marshall the man, had tried to get people to fight segregation. He urged the committee to focus on Marshall’s credentials, but to no avail.

  As the hearing was ending, Marshall tried to get the panel to set a date for the next hearing, even asking if they could resume the next day. A surly Johnston fired back: “Not tomorrow, I can tell you that right now.” No date was set, and the next hearings were not held until August.13

  Ten months had now passed since Marshall was nominated by the White House. Under federal law his paycheck would stop in another two months if he were not confirmed. A worried Marshall called the White House. The president told him, “It’s been taken care of.” Marshall later explained, “I gathered … that maybe his father or somebody [would have paid me].”14

  Aside from the salary issue, Marshall’s supporters were getting indignant about the delay. Jackie Robinson wrote in his newspaper column that Marshall was being punished because of his skin color, “the accident of birth.”15 Eleanor Roosevelt wrote about the delay, calling it a worldwide embarrassment to a nation that professed equality among its citizens.16 Senator Keating appeared at the third hearing on Marshall, held in early August, and pointedly noted there had been no probes into the activities of the newly appointed judges Elliott and Cox or their law firms. But Marshall was being burdened with responsibility, Keating said, for every action ever taken by any member of the NAACP.

  The committee, responding to the growing political pressure, scheduled a fourth hearing for a week later. At that session his critics let loose their full barrage. He was attacked for his association with left-wing legal groups, such as the International Juridical Association and the National Lawyers Guild. His opponents were trying to smear him by painting Marshall as a Communist sympathizer.

  Later, one senator pressed Marshall to explain why he once told a Memphis audience that the NAACP had “the law, religion and God” on its side. In the same speech he was quoted as having blasted the NAACP’s white opponents as people who put all their “faith and hope in the devil.” Marshall denied ever making the remark but conceded that he had spoken about “opponents,” which he said were “groups like the KKK and the groups that defy God, law and everybody else.” Marshall had finally had enough. He threw a challenge back at his Senate inquisitors: “Anybody who takes a man out and lynches him, I believe is working with the devil.”17

  Three days later, at yet another Senate hearing, Marshall was peppered with questions about whether he was a racist. The questions grew out of an essay written by Alfred Kelly, the historian who had helped the NAACP do research for the second Brown case. Kelly described Marshall as a man who made racially charged jokes such as: “When us colored folk take over, every time a white man draws a breath he’ll have to pay a fine.”

  Marshall told the subcommittee that Kelly had misquoted him. Senator Johnston pointed out that Marshall had now charged that reporters in Memphis as well as a respected historian were guilty of misquoting him on explosive racial comments. He said further hearings were necessary. Sen. Philip Hart, from Michigan, came to the front of the room and complained that the hearings were being needlessly diverted into issues that did not matter. “Judge Marshall doesn’t have a thing to worry about,” Hart told the subcommittee. “His reputation in American jurisprudence is established. We will indict ourselves if we fail to acknowledge it.”18

  The subcommittee, however, insisted on having Kelly, a Wayne State University professor, come to Washington to testify. A week later, at a remarkable sixth hearing, Kelly was the panel’s first witness. He began to do damage control by praising Marshall as a man with a “remarkable personality and vast abilities.” As for Marshall’s comment about charging white people for breathing, Kelly said, “The remark was mordant humor, given exclamation by a man possessed of a powerful sense of humor.… To lift the remark out of context and treat it as a threat or even a philosophical observation is absurd, even grotesque in its bizarre distortion of reality.”

  The next witness was the reporter from the Memphis Commercial Appeal who had quoted Marshall as saying that the NAACP’s opponents were working with the devil. Paul Molloy said the quotation was accurate but conceded that another reporter, from the Memphis Press-Scimitar, had quoted Marshall’s words differently and with less controversial impact.19

  After a parade of witnesses offering unsubstantiated accusations, the hearings abruptly ended. A week later the Washington Star reported that the subcommittee had privately voted 2–1 to reject Marshall’s nomination.20 The Kennedy brothers grew concerned that the nomination was now on its way to defeat. After the subcommittee’s vote the attorney general took Marshall to meet with several senators in an attempt to pick up support for the nomination. Marshall was not impressed with the younger Kennedy’s political gamesmanship. “Bobby was like his father,” he later said. “He was a cold, calculating character.”

  Kennedy insisted that Marshall visit Senator Eastland, “to pay our respects.” Marshall balked at going into the segregationist’s office. “What do you want me to do?” he asked. “I’m not going to go in there and genuflect to that man.” Kennedy, growing irritated, said flatly: “Well, you ought to.” Marshall walked off.21

  Despite Marshall’s refusal to meet with Eastland and the negative subcommittee vote, the full Judiciary Committee voted on his nomination on September 7. The tally was 11–4 to confirm, with four southern senators—Eastland of Mississippi, McClellan of Arkansas, Johnston of South Carolina, and Sam Ervin of North Carolina going against him. The powerful segregationists had delayed as long as they could. Four days later the full Senate confirmed Marshall, 54–16, with only southern Democrats voting against.

  * * *

  The newly confirmed judge was in New York when he got the good news. In a statement to the press he thanked the president and the Senate and said: “I will do my level best to live up to their expectations.” The journalist Eric Sevareid did a series of articles on Marshall that celebrated the man who �
��carried Negro Americans considerably closer to the citadel of full citizenship.” Sevareid concluded by saying Marshall remained “a whole man in a society half sick from racial prejudice … and a human being of the first rank.”22

  Marshall’s new status changed his image with some of his longstanding detractors, specifically the Black Muslims. Malcolm X, the leader of the Nation of Islam in New York, saw Marshall’s prestige around the country as a potential plus for a Black Nationalist movement.

  During the summer of 1962, Malcolm wrote to invite Marshall to join other prominent blacks and “speak to the Black Masses of Harlem” at a rally at 125th Street and Seventh Avenue. Writing on stationery from Muhammad’s Mosque No. 7, he said, “Conditions in Harlem have deteriorated,” and black “leaders must now take an intelligent and unselfish stand.” He predicted summer riots: “The fuse has already been lit, the crisis has been reached, and if something is not done immediately there will be an explosive situation in the Negro community, more dangerous and destructive than a hundred megaton bombs.”23

  Marshall wasn’t persuaded by the letter. He wrote on it, “File, No Reply,” and did not attend the rally. But the judge did meet Malcolm X one day on the streets of Harlem. “Hell yes, I met him,” Marshall recalled. “I think we called each other sons of bitches and that was all there was. We met on Seventh Avenue.”

  At the heart of Marshall’s dislike for Malcolm X were two key issues: First, Marshall was an integrationist who had never related to Malcolm’s hatred of whites; second, Malcolm, unlike Marshall, believed that violence was a useful tool for dealing with white racism.