The Right Thing to Do, the Right Time to Do It: The Confirmation of Thurgood Marshall

William Fassuliotis ‘19
Guest Columnist

            On October 2, 1967, Thurgood Marshall took his place on the bench as the 86th Justice on the Supreme Court—the first Black and first non-white Justice in its 178-year history. President Lyndon Johnson appointed Marshall. After Abraham Lincoln, Johnson did more to improve the legal status of African Americans than any other President by shepherding the Civil Rights Act of 1964 and the Voting Rights Act of 1965 through Congress. In addition to advancing the cause of integration in society through legislation, integrating the Supreme Court would prove a powerful symbol confirming the gains made so far. The only problem: There was no opening on the Court at the beginning of 1967, and it looked unlikely that a vacancy would open.

            Opportunity would come soon. In late February, 1967, Justice Tom C. Clark[1] announced he would take senior status towards the end of the year. Earlier in February, Johnson announced he would appoint Ramsey Clark as Attorney General. The two Clarks shared more than surnames: Ramsey was Tom’s son. To avoid the appearance of conflict when the government argued in front of the Supreme Court, Justice Clark decided to retire at the relatively spry age of 67 so his son could advance his career. Was Ramsey Clark’s appointment a coincidence? Johnson knew that Clark would have to retire if he appointed Clark’s son, and, as my next article will discuss, this would not have been the first time Johnson schemed to create a vacancy on the Supreme Court. Manufactured or not (and I think Johnson likely did intentionally create the opening),[2] Johnson had his opening.

            As Lyndon Johnson said in his nomination remarks, Thurgood Marshall “already earned his place in history” prior to his nomination. Marshall had argued thirty-two cases before the Supreme Court, which Johnson remarked was more than all but six other men up to that point.[3] He argued both as a private litigator for the NAACP, including Smith v. Allwright (White Primary Case), Shelley v. Kraemer (racial restrictive covenants), Brown v. Board of Ed. (needs no explanation), and as the Solicitor General for the United States under Johnson.[4] President John F. Kennedy appointed him to the Second Circuit in 1961, only the second African-American Circuit Judge. Marshall was, without a doubt, one of the most experienced litigators in America at the time, and one of the most experienced in American history.[5]

            Like Justice Louis Brandeis before him, Marshall faced opposition that was overtly about his likely liberal jurisprudence, but was in large part motivated by racism. Unlike Brandeis, Marshall sat before the Senate Judiciary Committee during his confirmation hearing and was subject to Southern Senators’ snide insinuations. During the hearing, Senator Strom Thurmond (D-S.C.) (of States-Rights “Dixiecrat” fame during the 1948 election) grilled Marshall with over sixty arcane questions about the Thirteenth and Fourteenth Amendments, which Marshall often did not know the answer to. Thurmond railed against Marshall as ignorant of the drafters of the Fourteenth Amendment, Marshall’s so-called expertise. Senator Ted Kennedy ’59 interrupted Thurmond and asked if Thurmond knew who the drafters were. Flustered and ignorant himself, Thurmond said he’d let Kennedy know later. (Thurmond forgot the cardinal rule of cross-examination: never ask a question you don’t know the answer to).

            After cajoling, President Johnson, similar to President Wilson with Brandeis, convinced twenty senators to abstain, rather than vote against Marshall. It took two months, but Thurgood Marshall was confirmed by a vote of 69 in favor, 11 against.

            It is easy to understand why Marshall was chosen to be a Justice on the Supreme Court. But why was he the first African American to sit on the court? The proximate answer is racism— racism made any previous attempt dead on arrival. But why was Marshall the first? Marshall was not the only Black lawyer fighting for equality and civil rights. In fact, there was another African American who was given strong consideration before Johnson chose Marshall.

            Earlier, I noted Marshall was the second Black federal appellate judge—the first Black appellate judge was the lesser known William H. Hastie. Hastie, born in Tennessee, would graduate from Amherst as valedictorian, and Harvard Law School as member of its Law Review. Hastie would make history as the first African-American federal district judge when, in 1937, President Roosevelt appointed him as judge for the District of the Virgin Islands. After two years, Hastie resigned to become dean of Howard University’s School of Law, where one of his students was a young Thurgood Marshall. Together, Hastie and Marshall would co-argue Smith v. Allwright and Morgan v. Virginia in the Supreme Court. Hastie would again make history as the first African-American appellate and Article III judge[6] when Truman appointed him to the Third Circuit in 1949.[7]

            Hastie’s name did come up as a possible nominee for the Supreme Court, including during the Eisenhower administration. Hastie’s best opportunity came when Justice Charles Evans Whittaker retired early in President Kennedy’s administration.[8] Hastie was the first choice of Robert Kennedy, then serving as Attorney General under his brother.[9] However, Hastie was not chosen because there were fears that Hastie, outside of racial questions, was too conservative. Kennedy’s Assistant Attorney General for the Office of Legal Counsel, Nicholas Katzenbach (who would become Deputy Attorney General after Byron White’s confirmation) asked Chief Justice Warren about his thoughts on Hastie. Warren was adamantly opposed, telling Katzenbach that Hastie is “not a liberal, and he’ll be opposed to all the measures that we are interested in.” Robert Kennedy called Justice William O. Douglas to ask about Hastie, who responded Hastie would be “just one more vote for [Justice Felix] Frankfurter,”[10] Douglas’s chief ideological opponent and the Court’s leading conservative at the time. (A sign of the times—Justices felt no compulsion to avoid advising members of the executive branch.) Not wanting to risk a conservative Justice, and wary about whether an African American could be confirmed, Kennedy ended up appointing Byron White to the seat.[11]

            And so history goes, contingent on choices we could easily imagine going different ways. But Thurgood Marshall would be the first African-American Justice, because as President Johnson said when explaining the choice, it was “the right thing to do, the right time to do it, the right man and the right place.”

            Next time: Johnson’s judicial blunders and the beginning of the end of the Warren Court.

[1] A Truman appointee in 1949 from Texas, Justice Clark had a fair amount of correspondence with Marshall earlier in their careers. Clark was the Attorney General from 1945 to 1949, where he prosecuted civil rights violations more vigorously than any of his predecessors since reconstruction. Marshall, as head of the NAACP’s legal arm, would write to suggest where the federal government could intervene more or better. When Clark was nominated for the Supreme Court, Marshall wrote in support for Clark.

[2] E.g.
I have not found a source attempting to disprove Johnson’s purported politicking, but enough sources about the nomination do not even bring up this amazing, must-say, scenario that I am hesitant to say it certainly happened.

[3] Chief Justice Roberts now holds the record for most Supreme Court arguments prior to becoming a Justice, arguing 39 and winning 25 of them.

[4] Bizarrely, Marshall’s record is contested. Most sources, such as his New York Times obituary, say he argued fourteen for the NAACP and eighteen for the government, winning twenty-nine of thirty-two. But a minority of sources say he argued nineteen for the government, winning fourteen. Compare Randall W. Bland’s Justice Thurgood Marshall (nineteen for government) with (eighteen). I have no idea who is right as finding this data is difficult.

[5] Absolutely fascinating to me, Marshall was involved in helping Kenya draft its first post-colonial constitution. While not all of his suggestions were incorporated in the final constitution, his biggest contribution was a “just-compensations”-like takings provision to protect the white minority from land confiscation. “I said that I was going to give the white Kenyan the same protection I would give a Negro in Mississippi. … They can take your land, but they had to pay you. And if they don’t give you the price you like, you can file [suit].”

[6] As a territory, the District Court for the Virgin Islands is an Article IV court, the chief difference being that its Judges do not have lifetime tenure.

[7] The Third Circuit hears appeals from the Virgin Islands. Hastie was also the Virgin Islands’ governor from 1946-1949, also appointed by Truman.

[8] Justice Charles Evans Whittaker is a cautionary tale against being promoted beyond one’s capabilities. A stellar district judge (appointed in 1954), but a merely good appellate judge (appointed in 1956), Whittaker was overmatched as a justice (appointed in 1957). After vacillating over Baker v. Carr, Whittaker had a nervous breakdown, prompting his retirement at the age of 61 and after only five years on the Court.

[9] This narrative predominantly comes from Dennis J. Hutchinson’s “The Ideal New Frontier Judge” in The Supreme Court Review Vol. 1997, pp. 373-402.

[10] Frankfurter was known for his judicial restraint in all fields, economic and social, and viewed the protections of the Bill of Rights as more limited than most of the rest of the Warren Court did.

[11] The choice is ironic as White, while by no means doctrinaire, would join or author a fair share of “conservative” opinions.