To calm things down, McPherson thought about posting policemen or plainclothes FBI agents inside the conference. But the sight of lawmen might offend black leaders. Louis Martin, the black vice chair of the Democratic National Committee, came up with a better idea. He got sexy co-eds from Howard University, dressed in evening gowns, to act as hostesses for the event. The young women transformed the evening, defusing the mood of militancy. There was still concern, however, that when the president stood to speak, he might be shouted down.
Surprisingly, the president was greeted like a hero. “LBJ got to this huge hall, and the crowd was terrific. They were standing and cheering, ‘L-B-J, L-B-J,’ ” McPherson recalled in an interview. “And Johnson made an altogether full-throated speech of warmth and appreciation and praise. And then he said, ‘It gives me the greatest pleasure to introduce your main speaker for this evening. A man that I am proud to say is my friend and that I am proud to say I have helped to put in a position to serve America—Thurgood Marshall.’ Well, Thurgood had tears in his eyes, and he was shaking hands with Johnson—and I’ll never forget—the applause went on and on.”
When the applause quieted down, Marshall said, “Thirty years ago, when I began in this business, you wouldn’t have heard a president of the United States saying something like that about somebody like me.” McPherson remembered a spontaneous ovation: “Boy, the place—people stood up and yelled. Everybody understood Thurgood—there was no one like him.”25
Thurgood Marshall’s elevation to a national symbol of racial peace was confirmed a month later when President Truman, retired and living in Missouri, asked him to be his stand-in at ceremonies honoring the former president in Israel. The Israelis had put Truman’s name on a center for peace studies at Hebrew University as a tribute to his role in establishing the Jewish state. Marshall was pictured in newspapers worldwide as representing America.
When Marshall returned from Israel, fallout from the Black case was still in the air. Attorney General Katzenbach apparently had shown too much concern for Bobby Kennedy’s reputation in President Johnson’s eyes. He was out. Johnson decided he wanted someone totally loyal to him in charge of the Justice Department. His acting replacement, Ramsey Clark, was a fellow Texan and a personal friend to the president. Clark was a tall, quiet man with wavy dark hair and a slow drawl, a graduate of the University of Chicago Law School. He was more liberal than most of Johnson’s Texas cronies, better educated and younger, without any of the racial hang-ups of the older crowd.
The change in leadership at the Justice Department gave Marshall more prominence. As the acting attorney general, Clark relied on the older Marshall’s advice, as well as Marshall’s independent relationship with the president. In fact, Marshall’s name was briefly floated as a possible candidate for permanent attorney general. But most prominently, his name was being mentioned as the person for Johnson to nominate to the Supreme Court whenever a seat opened. “A negro on the U.S. Supreme Court bench by 1968—the year of the next presidential election—is the goal of the Lyndon Johnson Administration in Washington,” Jet magazine wrote in its December 1, 1966, edition. Marshall was the most likely candidate to get the job.26
Jet’s report was right. In private conversations Johnson still said he wanted to name a black person to the Supreme Court. But in January 1967, Johnson began to have doubts about moving Marshall to the bench. The president told the acting attorney general that he was displeased over Marshall’s failure to point a finger at Kennedy for authorizing wiretaps and electronic bugging. Johnson said it was “disgusting” that Marshall had “humiliated” himself in front of the Supreme Court by defending the use of eavesdropping devices. He added, “I didn’t think he was of very strong character” to have done it.27
Johnson was also concerned that Marshall was too liberal at a time when the country was going through riots and crime waves and a substantial right-wing backlash was under way. Law-and-order voters would not see Marshall as anything but soft on crime. “The votes they [liberals] wanted, he’d give them,” Johnson told Clark, later adding that putting Marshall on the Court might mean that his hopes for reelection in 1968 were “long gone.”
The president’s discussions with Clark had the sharp edge of political maneuvering. Johnson knew that Clark was close to the solicitor general and wanted him to have a seat on the Court. The president, in turn, was using Clark to force open that seat. Johnson told him that he could not become the permanent attorney general unless his father, Tom Clark, resigned from the Supreme Court. Ramsey Clark was reluctant to see his father leave, but Johnson persisted. He told the younger Clark that if he became attorney general while his father remained on the Court, then “every taxidriver in the country” would assume there was favoritism at work.28
In February, President Johnson announced that he was nominating Ramsey Clark to become the permanent attorney general. The same day Tom Clark announced that he was stepping down from the Supreme Court at the end of the term. The timing of the announcements seemed to indicate that a deal had been cut. But the younger Clark said in an interview thirty years later that if there was a deal between his dad and the president, he was not in on it.
There were, however, many people in Washington who thought the president had cleverly manipulated father and son to open a Supreme Court seat. “Johnson said, I can get rid of Tom Clark by putting Ramsey in as attorney general. That’s the way LBJ’s mind worked,” said Katzenbach in an interview. “What I think LBJ did was tell Tom Clark, I’m going to make Ramsey attorney general, and I’m sorry that’s going to raise a problem for you, Tom, and I’m not going to do it if you don’t want to resign.”
Justice Clark’s decision to quit the Supreme Court at the end of the term, June 1967, meant the president had four months to name his replacement. New candidates for the seat began popping up, including Rep. Wilbur Mills, Sen. Abraham Ribicoff, and Labor Secretary Willard Wirtz.
Growing concerned, Louis Martin began lobbying the president to select Marshall, who now seemed to have fallen from favor. The president gave Martin some strongly negative comments about Marshall, telling him that Marshall “wasn’t worth a damn” as an administrator and he didn’t “pay any attention to half the cases; he just gets those he likes.”
Katzenbach, who was now at the State Department, was hearing similar critiques from the president. “I think probably he heard stories about Thurgood being lazy—he didn’t work all that hard—he’d leave at four, four-thirty,” said Katzenbach. “I expect Thurgood always had a little bit of a drinking problem, but it never interfered with his work.”
Johnson’s doubts about Marshall led him to ask Katzenbach about other black lawyers who were qualified to be on the Court. Katzenbach warned the president that in the black public’s mind, there was only one renowned black lawyer, Thurgood Marshall. “I think [Johnson] was seriously thinking about Hastie,” Katzenbach recalled in an interview. “He would have been fine, as a member of the Court, nothing wrong with Bill Hastie. It was just that the first black on the Supreme Court in that time, in my view had to be Thurgood.”
Marshall’s supporters had several points in their favor. One, the president genuinely liked Marshall and continued to see him regularly, both for business and to drink and tell stories. Two, Johnson considered Marshall a man in his own image, a person who had worked his way up from the bottom, not a person born to wealth. “He and Marshall could talk the same language,” recalled Jack Valenti, who was one of the president’s top aides. “The chemistry, I’ll tell you, is so important.”29
Maybe most important, Johnson wanted his name in the history books as the first president to appoint a black person to the Supreme Court. “Johnson believed in civil rights. He thought we ought to do it,” said Harry McPherson, the White House legal counsel. “He said he wanted to change Texas, he wanted to change the South. And now he wanted to say, ‘I did it, I’ve integrated the Supreme Court.’ ”
On the last day of the court’s term,
June 12, 1967, Associate Justice Tom Clark’s resignation took effect. Clark told reporters that his replacement would more than fill his shoes, heightening rumors about who would be Johnson’s choice. That night Thurgood and Cissy Marshall went to a party in Clark’s honor. The president, full of energy and charm, was there. But to Marshall’s dismay Johnson pulled him aside at one point and told him not to expect the job.
On Tuesday morning, however, Marshall was told to stop by the Oval Office. After waiting for several minutes in a room outside the door, Marshall walked in and chatted casually with the president. Suddenly, Johnson said, “You know something, Thurgood? … I’m going to put you on the Supreme Court.” Before Marshall walked out of the White House that day, the president, changing from his smiling face to a serious expression, told him: “Well, I guess our friendship is about busted up now.” Marshall recalled that Tom Clark had been very good friends with President Truman but had voted against the president’s wishes in a major case. “Tom Clark really socked it to Truman—his very best friend.” Even at this moment, Marshall showed his strong independent streak and told Johnson, “I would have no hesitancy in socking it to you. Do we understand each other?” Smiling, Johnson told him he was certain he had made the right choice and said, “I’m glad we understand each other.”
For all their brave talk, from that moment on Marshall and Johnson were inextricably linked. Johnson’s political fortunes for reelection were on the line with a Supreme Court nominee who was no cinch to be confirmed. This was not going to be the easy trick that Johnson had managed when he got Marshall confirmed as solicitor general. Hearings on Marshall’s nomination to the Supreme Court were sure to become a stage for all sides in the nation’s racial turmoil.
Johnson needed a happy, quick confirmation for Marshall. And Marshall needed Johnson’s skills and support as a master politician to get him through potentially treacherous hearings. Marshall did not want to be just the first black man ever nominated to the high court. He wanted to be the first black Supreme Court justice.
CHAPTER 30
Justice Marshall
NOW MARSHALL WAS NERVOUS. The three most recent Supreme Court nominees (Byron White, Arthur Goldberg, and Abe Fortas) had gone from nomination to confirmation and a seat on the Court in under two weeks. But the Judiciary Committee delayed the start of hearings on Marshall for a month. They wanted time to go over every inch of his background.
Sen. Robert Byrd of West Virginia wrote to J. Edgar Hoover to ask for FBI checks on Marshall’s alleged ties to Communists. Sen. Strom Thurmond of South Carolina had his staff prepare obscure questions on the Constitution to test Marshall’s knowledge of the law. Senators Sam Ervin and John McClellan had their staffs comb Marshall’s opinions from his time on the Second Circuit as well as read over the briefs he filed as solicitor general. Marshall’s opponents were loading up to attack him as a weak lawyer and a judicial activist who was soft on crime. One congressman, Rep. John Rarick of Louisiana, did not bother with research. He immediately put a statement in the Congressional Record that described Marshall as a “scamp” and a “cheat.”
The FBI had no official comment on Marshall’s nomination. The help he had given the bureau over the years apparently neutralized the anger Hoover normally felt toward civil rights activists. Hoover even sent a personal note to Marshall congratulating him. But at the bottom of the director’s file copy of the letter, he wrote that in the past Marshall had been “critical of the FBI.” The note added that Marshall “had alleged in his criticism that the FBI’s record in cases involving Negroes was notably one-sided.… On one occasion when he charged misconduct on the part of special agents in the FBI while serving as a judge, he was requested to supply details … and never answered the request.” The note also mentioned that Marshall, as solicitor general, had been involved with disclosing FBI wiretaps to the Supreme Court.1
Despite these privately held reservations, Hoover gave Marshall his public support. There was no indication that he leaked any damaging material to segregationist senators on the Judiciary Committee. Marshall had caged a raging lion that could have destroyed his career.
Still, the delayed start of the hearings gave the segregationist press time to take shots at him. The Lynchburg News began its editorial by supposedly quoting a Marshall speech to black leaders at Howard University in 1961: “Wait and see what I do when I get on the Supreme Court—I will send every whitey to jail I can.” The paper added that Marshall belonged to Communist groups and that he would fall in with a “clique of soul brothers” on the high court, namely Earl Warren, Abe Fortas, William O. Douglas, and William Brennan. “The opinions of these five liberals will continue to distort the shape of American society, institution and culture for years to come.”2
James J. Kilpatrick, a popular segregationist columnist and genuine student of the Court, similarly wrote that Marshall was a liberal addition to an already left-leaning court. The appointment, Kilpatrick wrote, was “a great tribute to Marshall’s own skill and industry.… No critic would wish to take away from the heart-warming success story that came to its climax.” But he concluded: “All the same, in any conservative view of the workings of the court, the nomination is … bad news—and we shall be living with it for the next ten years at least.”3
While the right wing fired away, liberal and moderate writers praised the nominee as a wonderful American who easily stood astride the nation’s racial divide. “He is one of the special ones—a great rumpled bear of a man.… Irrepressibly nonchalant, … [who] smokes almost compulsively and confronts life with a gargantuan verve that etches him indelibly in the memory of anyone he meets,” wrote Newsweek. The magazine, describing Marshall as a “black Horatio Alger,” added that “America may romanticize its radicals but it more often rewards its reformers. And Marshall is a reformer in the best tradition of the rule of law.” Martin Luther King, Jr., was quoted as saying the Marshall nomination was a “momentous step toward a color-blind society.”4
At the White House there was concern that the delay was giving momentum to senators opposed to the nomination. The president began to discuss with his aides how to keep the nomination afloat. “We had many discussions—his confirmation was a major struggle,” Clark recalled in an interview.
The White House decided that one way to build public support for Marshall was to put him on a national commission to study crime and violence in American cities. The idea was to keep Marshall’s name in the news as a sober, rational voice able to respond to black militants. He was the only black commissioner. He joined former Supreme Court Associate Justice Arthur Goldberg, then the U.S. ambassador to the United Nations, and Associate Justice John Marshall Harlan on the panel. The White House had put Marshall in the protective company of respected legal minds.
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 issu
es 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.”
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