Showdown-- Thurgood Marshall and the Supreme Court Nomination That Changed America By Wil Haygood

August 30, 1967 was a very important day in the history of our country. It was the day a reluctant Senate finally confirmed Thurgood Marshall to the Supreme Court. 69 senators voted YES, 11 voted NO, and, crucially, 20 didn't vote. We'll come back to those 20 in a moment. Marshall served on the Court for 24 years, from October, 1976 until October, 1991. He was the first African-American Supreme Court Justice-- and he was no Clarence Thomas (who, hideously, was appointed to his seat by George W. Bush). Marshall was an accomplished attorney for the NAACP with an astounding success rate of arguing cases in front of the Court, including Brown v Board of Education, the 1954 landmark case that discarded "separate but equal" and outlawed segregation in public schools. John Kennedy appointed him to the U.S. Court of Appeals (NY) and then Lyndon Johnson appointed him Solicitor General before appointing him to Tom Clark's Supreme Court seat when he resigned (when his son Ramsey Clark was appointed Attorney General).

So why bring this up now? Not because it's October. Last month Wil Haygood's epic book on the life of Marshall, Showdown-- Thurgood Marshall and the Supreme Court Nomination That Changed America, was published. In his review in the NY Times, David Margolick begins with a showdown between Marshall and 4 racist senators from the Judiciary Committee who were determined to block him from being confirmed to the Supreme Court-- John McClellan (D-AR), Sam Ervin (D-NC), Strom Thurmond (R-SC) and James Eastland (D-MS), the committee chair and the father of Miss Confederacy, 1966. Margolick laments how Marshall's story has been largely forgotten by history, "relegated to the shadow of Martin Luther King Jr.," but is excited that the Haygood book is going to change that. President Johnson:

“Thurgood, I’m nominating you because you’re a lot like me: Bigger than life, and we come from the same kind of people,” he told him. Because there had been no Supreme Court vacancies handy, Johnson, the consummate wheeler-­dealer, fashioned one, naming Ramsey Clark attorney general in order to induce his father, Justice Tom C. Clark, to quit. Johnson could then slide Marshall, solicitor general at the time, into Clark’s slot.

Before that, Marshall had been a federal appeals court judge in New York, begrudgingly named six years earlier by President Kennedy after Marshall had spurned his offer of a seat on the federal trial bench. (“My boiling point is too low for the trial court,” Marshall had explained. “I’d blow my stack and then get reversed.”) That initial offer had come from Robert Kennedy. “You don’t seem to understand,” he warned Marshall. “It’s this or nothing.”  “I do understand,” Marshall lectured him. “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.”

For much of that life, Marshall had been the founder and principal litigator of the NAACP Legal Defense and Educational Fund, fighting, against great odds and at enormous personal risk, to dismantle Jim Crow in Southern schools, courtrooms, lunch counters and voting booths — that is, when he wasn’t struggling frantically to spare individual indigent blacks from the electric chair or the rope. “Folks would come for miles, some of them on muleback or horseback, to see ‘the nigger lawyer’ who stood up in white men’s courtrooms,” an N.A.A.C.P. official would later recall. Not all of Marshall’s beneficiaries, though, were black: By helping to invalidate ­Texas’ whites-only primaries, thereby adding thousands of black voters to the rolls, he helped make Lyndon Johnson a senator.

“He is one of the most distinguished lawyers in the land,” Senator Jacob Javits of New York said in introducing Marshall to the Judiciary Committee. Javits’s words were echoed 24 years later when the first President Bush introduced Marshall’s replacement, Clarence Thomas. But in Marshall’s case, they were true.

In what was really Marshall’s first victory over the segregationist senators, they did not dare challenge his civil rights work. Instead, seeking to exploit concerns about crime — riots in Detroit and elsewhere were taking place during the hearings — they asked him about (and, in effect, blamed him and people like him for) recent Supreme Court decisions expanding the rights of criminal defendants. At one point Senator Ervin, not yet the avuncular figure of the Watergate hearings, complained that the Fifth Amendment was never meant to invalidate “voluntary confessions.”

“Well, Senator, the word ‘voluntary’ gets me in trouble,” Marshall replied. “I tried a case in Oklahoma where the man ‘voluntarily’ confessed after he was beaten up for six days.” The hearings, startlingly unscripted compared with today’s antiseptic proceedings, furnished one of the first debates on originalism-- the idea that the Constitution was frozen in time rather than, as Marshall argued, a “living document”-- and which, in this instance, was the refuge of bigots. They also featured Senator Thurmond trying to trip Marshall up on historical trivia that no one but a specialist, and certainly not Thurmond himself, could possibly have known.

“Are you prejudiced against white people in the South?” Senator Eastland asked Marshall. It was not, as Haygood writes, the “penultimate” question, but it was the ultimate one, and Marshall handled it with aplomb. Shortly thereafter, he was overwhelmingly confirmed, and far more easily than Haygood leads us to expect he would be. Miraculously (though Haygood fails to point it out) only one Republican, Thurmond, voted against him. For all his fears, Lyndon Johnson was famously persuasive (and were Marshall to falter, he even had another black candidate, William Coleman, waiting in the wings). He could also count noses.

An interview with Haygood on KPCC's AirTalk is what drew my attention to the book and to the 20 senators who didn't vote and how that happened. Before Marshall's nomination, no Supreme Court nominee's Judiciary Committee hearing had lasted more than 4 hours. Marshall's was a full 5 days, stretched out for almost 2 weeks. Haygood on how Johnson managed to force the confirmation through the Senate despite the intent of the Southern racists to block it:

Johnson... was a master. These were senators that he had known from his years in the Senate. After Marshall made it out of the Senate Judiciary Committee [the nomination] of course headed to the full Senate. His paperwork sat in limbo for 5 weeks and that was also unheard of at the time. It made a lot of people very upset, but Lyndon Johnson started working the telephones and he convinced 20 Southern segregationists to not vote on the day of the vote for Thurgood Marshall. He twisted arms; he let them know what he would do to them. He would hurt them in their home districts, maybe by making speeches against them or not giving them some pork barrel project. He was being a master politician. And on the day of the vote, 20 Southern segregationist senators opted not to vote against Marshall.

The racists' plan for a filibuster fell apart. Only 1 Republican-- Strom Thurmond-- and 10 Dixiecrats-- Robert Byrd (WV), James Eastland (MS), Allen Ellender (LA), Sam Ervin (NC), Lister Hill (AL), Spessard Holland (FL), Fritz Hollings (SC), Russell B. Long (LA), John Sparkman (AL), and Herman Talmadge (GA) voted NO. But among the 20 senators who stayed away that day less than half were actually Southern segregationists: Harry Byrd, Jr. (D-VA), Paul Fannin (R-AZ, not technically a Southern segregationist but a Southwestern segregationist), Fred Harris (D-OK), B. Everett Jordan (D-NC), John McClellan (D-AR), Richard Russell (D-GA), George Smathers (D-FL), and John Stennis (D-MS). Others who stayed away included non-Southerns and non-racists like Democrats Joseph Montoya (NM), George McGovern (SD), Gaylord Nelson (WI), Vance Hartke (D-IN), Ed Muskie (ME), Ernest Gruening (AK) and Mike Mansfield (MT). Haygood got that wrong.