NOVEMBER 19, 2015
AMERICA UNDER THE PRESIDENCY of Barack Obama may seem to be a different planet from America under the presidency of Lyndon B. Johnson, but there are some similarities, including in the area of racial tensions. Black men are still murdered in our country with some regularity, and only in recent years has this issue gotten serious media attention. During Johnson’s presidency, and especially in the decades that led up to it, the victims included civil rights activists who had angered the Ku Klux Klan (KKK) and those who were guilty of insolence rather than a crime. There weren’t many black lawyers around then to pursue racially motivated crimes or to defend black men who had been unjustly imprisoned. However, prominent among such lawyers was Thurgood Marshall, who had attended law school at Howard University and who worked for over two decades for the National Association for the Advancement of Colored People (NAACP).
In 1967, Guess Who’s Coming for Dinner was considered a radical film that made studio executives nervous. That film’s star, Sidney Poitier, told the filmmakers of another groundbreaking film, In the Heat of the Night, that he would not film in Mississippi because it was “too dangerous.” It was in this climate, in 1967, that LBJ nominated Thurgood Marshall to the Supreme Court. The move was a rude shock for some segments of the country’s white population, including Dixiecrat politicians. Wil Haygood gives a dramatic account of the tightrope hearings that followed in the Senate Judiciary Committee in his book Showdown. The book doesn’t bring us particularly close to Marshall-the-man, but it includes a larger narrative that satisfies. This is the story of how a nation in the grip of the Vietnam War and explosive questions about race was able to move past widespread racism and accomplish what many Southern senators were absolutely opposed to — appointing a black man as a Supreme Court justice.
Growing up, Thurgood debated with his father and brother at the dinner table, and went on to become a “star debater” in high school. His mother scrimped to send him and his brother to college. Marshall married early and his first wife, Buster, died of lung cancer — in this book, we’re told almost nothing about her. Marshall’s second wife, Cecilia, was Filipino (by way of Hawaii), and they were therefore in an “interracial marriage,” which was grounds to get you thrown in jail in 16 states in the country at that time. As an NAACP lawyer, Marshall traveled relentlessly in the South and wherever else work took him. When his two sons were little, he was away so much that his older son once looked at Marshall’s picture and asked his mother, “Who’s that man?” In times of stress, he was known to drink, and Cecilia is depicted as a loving, docile wife who just wanted to get her husband home for dinner after another tough day of hearings in the Senate Judiciary Committee. I suspect Marshall’s marriages impacted his career more than is reflected in this book.
Marshall was a passionate speaker in private and public settings; he was deeply aware of the country’s racial problems. As an NAACP lawyer, he risked his life crisscrossing the South to handle race-related cases. He may have narrowly escaped murder by one town’s sheriff while he was there to investigate a case. For those such as Marshall who were willing and able to take it, there was no shortage of work.
Soon after law school, Marshall had traveled with the school’s dean to remote parts of the country and witnessed how the segregationist tenet of “separate but equal” was not working — black schools were chronically underfunded and many black children had to walk long distances to get to school because the school buses that came to their neighborhoods were for whites only. In the course of his career as a lawyer, Marshall would attack the seemingly impenetrable wall of segregation brick by brick, until in 1954 he successfully argued Brown v. Board of Education, the ruling in which the US Supreme Court held that state laws establishing separate public schools for black and white students were unconstitutional.
During John F. Kennedy’s presidency, Bobby Kennedy, on the president’s behalf, offered Marshall an appointment as federal judge in New York City. Marshall refused, instead asking for a seat on the Court of Appeals.
Kennedy immediately rebuffed him, even as Marshall told him he knew there was an appeals court opening. “You don’t seem to understand,” Bobby Kennedy sharply said, “it’s this or nothing.”
Marshall, a fiercely prideful man, was quickly reminded of why he disliked Bobby Kennedy — the arrogance and condescension. He knew the Kennedys came from money, were pedigreed. “Well, I do understand,” he told young Bobby. “The trouble is that you are different from me. You don’t know what it means, but all I’ve had in my life is nothing. It’s not new to me, so goodbye.” And Thurgood Marshall turned and walked out on the president’s brother.
This unpleasant meeting notwithstanding, Louis Martin, an influential black “political operative,” intervened and Marshall was eventually nominated to the US Court of Appeals for the Second Circuit.
The Kennedys may have meant well, but it would take LBJ to substantially shift the country’s racial future. The book paints a flattering portrait of LBJ, including a moving account of his Texas roots and how a conversation with his driver helped him understand how difficult it was for a black person to travel at any length through the country while being denied access to restrooms, restaurants, and motels. LBJ tried to address racial issues during his career, first as the Texas state director of President Roosevelt’s National Youth Administration jobs program and, ultimately, during his tenure as president. Chief among his contributions are that he helped pass civil rights legislation and that he nominated Thurgood Marshall to the US Supreme Court. LBJ understood that racism needed to be dealt with aggressively. He lobbied senators who were dead against the Marshall nomination to not vote rather than cast a more damaging “no” vote. He was Southerner enough to know how to deal with at least some Southern senators (be charming to their wives and remember the names of their children). The recent film Selma was controversial, among other things, for getting “LBJ wrong.” This book cannot be blamed for not giving LBJ due importance in the Civil Rights Movement and in the fight against racial inequality.
LBJ wanted so much to nominate a black man to the Supreme Court that he made a series of chess moves to accomplish his objective. He encouraged the then Attorney General to resign in favor of another appointment. He told a sitting Supreme Court Justice, Tom Clark, that he wanted to promote his son, then the Deputy Attorney General to Attorney General, but having a father in the Supreme Court would be seen as a conflict of interest. LBJ was betting the elder Clark would make a sacrifice for his son, and he was right. Presto. There was a vacancy in the Supreme Court. To express his gratitude, LBJ sent Tom Clark on a goodwill mission around the world, sponsored by the Department of State.
The Marshall nomination would have to contend with Marshall’s past legal victories, including one of his crowning achievements — the Brown v. Board of Education ruling. While Marshall’s allies were proud, there was a great deal of unease among others about what the nomination implied. Some wrote appallingly racist letters to the White House to let LBJ know he had betrayed them. This was a time when the KKK was still a national political force and the murders of unsung civil rights activists remained unsolved. Racially motivated bloodshed was, to some degree, still accepted in the South. Decades earlier, the father of one of the senators who grilled Marshall during the hearings had infamously lynched a black man.
Haygood does a terrific job of keeping the Judiciary Committee proceedings suspenseful. The senior senators were in cahoots with the Chair, in that they all meant to derail Marshall’s nomination. Senator Strom Thurmond came armed with obscure questions and Senator Sam Ervin used his legal expertise to try to corner Marshall into some damning statement. Even more determined to defeat the nomination, and redeem himself among his constituents, was the Judiciary Committee chairman, Senator James Eastland; much later, on his deathbed, Marshall characterized Eastland as “the meanest son of a bitch that ever walked the earth.”
The “young Turks” on the Judiciary Committee, including Senator Ed Kennedy and Senator Phil Hart, wholeheartedly supported the nomination and could barely conceal their impatience as the hearings rattled on interminably. Marshall’s belief that the Constitution is a “living document” earned him the ire of the Southern senators who suspected he was an activist lawyer who would interpret the Constitution per his whims and create disorder in the nation. These senators feared and denied the suppleness of the Constitution, the very thing that has helped move us forward as a nation.
Before and during the agonies of the Civil War, many came to believe that slavery would never end. But in 1865, the Thirteenth Amendment to the Constitution outlawed slavery. In 1870, the Fifteenth Amendment to the Constitution granted black men the right to vote. Those amendments also unleashed bloodshed; thousands of lives were lost, and southern states threatened, time and time again, to secede. Those flames in the mid-nineteenth century had now twisted and exploded into flames of the 1960s.
In addition to the country’s dissatisfaction with Vietnam, racial unrest and crime were on the rise. Anxieties were high on all sides. The Detroit race riots broke out while the hearings were going on, and Senator John McClellan tried to use the chaos to his advantage, to stoke the country’s fears and to tarnish Marshall as being “soft on crime.”
In the end, LBJ’s relentless lobbying saved the nomination and Marshall was sworn in as an associate justice of the Supreme Court. In his travels, Marshall had seen dire poverty, and during his tenure as Supreme Court justice, his writings reflected the hopelessness he had witnessed. In a stirring dissent in United States v. Kras, in which a man who filed for bankruptcy refused to pay a $50.00 filing fee, Marshall wrote:
The desperately poor almost never go to see a movie, which the majority seems to believe is an almost weekly activity. They have more important things to do with what little money they have — like attempting to provide some comforts for a gravely ill child, as Kras must do. It is perfectly proper for judges to disagree about what the Constitution requires. But it is disgraceful for an interpretation of the Constitution to be premised upon unfounded assumptions about how people live.
In a case in which a defendant faced the death penalty, Marshall’s words of dissent are incisive:
The death penalty’s cruel and unusual nature is made all the more arbitrary and freakish when it is imposed by a [Alabama] judge in the face of a jury determination that the appropriate penalty is life imprisonment.
Marshall is mostly remembered in the context of civil rights and criminal procedure, but his belief in equality extended to other areas as well. One limitation of Haygood’s book is that its structure does not allow him to elaborate on any of Marshall’s influential decisions — and so the reader is unable to appreciate Marshall’s almost quarter-century-long tenure on the Supreme Court for much more than its obvious symbolic value. For instance, Marshall’s decision to rely on Justice John Marshall’s 1832 interpretation of Native American tribes as “sovereign nations” gave sovereignty to Native American tribes (a key aspect of their status today) and laid the groundwork for positive court decisions in the future. But there is no mention in this book of this historic ruling.
Another decision not included in the book is Personnel Administrator of Massachusetts v. Feeney (1979), in which the Supreme Court upheld the constitutionality of a state law giving hiring preference to veterans over non-veterans. In a dissent, Marshall wrote:
In practice, this exemption, coupled with the absolute preference for veterans, has created a gender-based civil service hierarchy, with women occupying low-grade clerical and secretarial jobs and men holding more responsible and remunerative positions.
Marshall’s 322 majority opinions and 363 dissents reflect not only his considerable legal learning but also his understanding of ground realities. The man whose mother sacrificed to send him to college, who drove across the country to see how the black population actually lived, would not blunt his ability to empathize with the less fortunate when he sat in the nation’s highest court.
Even after LBJ left office, he seems to have enjoyed Marshall as a friend. In 1973, on New Year’s Day, LBJ told Marshall he would like to write a book about the nomination process. Marshall assured him of his support, but LBJ passed away later that month. Whether or not Haygood meant to fulfill LBJ’s intent, he has written a book structured around the nomination process. It is different, of course, from the book LBJ might have written, but this compelling aria at last has been sung.