Marshall filed several suits in support of students demanding food service at Jim Crow lunch counters. In one case, Bruce Boynton, a Howard Law student, had been arrested for insisting that a Trailways bus station lunch counter in Richmond serve him. Just before Marshall was to argue the case in the Supreme Court (it was to be his last NAACP oral argument before the court), the third-year student appeared at the door of Marshall’s hotel room to tell him how to do it. Boynton’s arrogance prompted the LDF lawyers in the room to break into laughter the minute he left. Their laughter was a double-edged sword, a sign of the growing distance between Marshall and the young people now in the vanguard of the civil rights movement. The case ended successfully when the court ruled in Marshall’s favor, voting 7–2 that the bus station’s refusal to serve a black patron was a violation of the Interstate Commerce Act.
The dramatic confrontations at lunch counters continued, however. By the end of 1960 some 1,700 students had been arrested throughout the South for disturbing the peace by demanding to be served in segregated restaurants. In 1961 Marshall filed a brief in the Supreme Court (Garner v. Louisiana) that argued that the Fourteenth Amendment gave the students the right to be served in a public restaurant and made the point that the well-dressed, polite young people had never disrupted the peace. The Supreme Court unanimously ruled at the end of the year in a sweeping decision in favor of Marshall and the students. The sit-ins had succeeded.
* * *
This new civil rights crisis brought on by the sit-in movement and marches was a major concern for candidates in the 1960 presidential election. The issue was particularly difficult for the Democrats, since southern segregationists were an important constituency for their party. Sen. John Kennedy of Massachusetts, the leading Democratic candidate during the primaries, called Marshall for advice. At a two-hour lunch in Kennedy’s office, he asked Marshall if a northern Catholic could win in the nation’s racially charged atmosphere.
“He told me that he was thinking about running for president and what did I think about it?” Marshall said, describing the conversation. “And I told him, ‘No way.’ I remembered Al Smith [1928 Democratic candidate for president who was Catholic]. The Masons killed Al Smith, and the Masons would kill him off. And he said he didn’t think so. I said, ‘Well, you asked for my opinion, and that’s my opinion.’ ”
Kennedy ran, captured the Democratic nomination, and was in a very close general election against the sitting vice president, Richard Nixon. The Republican had substantial black support thanks to his association with the popular Eisenhower and a fairly good civil rights record. In October, however, the black vote took a decisive turn. Martin Luther King was arrested in Georgia for taking part in a student sit-in protest at Rich’s department store. Most of the protesters were released within a week when Marshall and the LDF put up bail money and went to court to defend them. But King was denied bail because of an earlier arrest for driving without a Georgia license. He was sent to a rural penitentiary infamous for its cruelties to prisoners. The LDF continued to argue in court for his release as King began a four-month sentence.
Candidate Nixon asked the Justice Department to check on King’s rights and make sure that he was being properly treated. Candidate Kennedy, however, made a call to King’s wife, Coretta, and promised to do what he could to get King out of jail. Robert Kennedy, the candidate’s younger brother, also called an Atlanta federal judge about King’s detention. A day later King was set free.
After King was released the Kennedy campaign printed pamphlets for black churches telling the story of how Kennedy had worked to get King out of jail. The strategy paid off; Kennedy won 68 percent of the black vote in an election decided by less than 1 percent of the vote. But Marshall was filled with resentment. NAACP attorneys had been working around the clock and he felt upstaged. Right after King’s release he phoned Donald Hollowell, the NAACP attorney in Atlanta who was handling the case. After congratulating Hollowell, Marshall let out a snicker and said: “You know they tell me everybody in the world got Martin Luther King, Jr., out but the lawyer.” Both Hollowell and Marshall burst out laughing.10
After the election black voters, politicians, and newspaper publishers had high expectations for Kennedy. They were counting on him to enact new civil rights laws and appoint blacks to high-level federal jobs. Attention quickly turned to several vacant federal judgeships, with Marshall as the most prominent candidate. Just before the election Marshall, age fifty-two, was described in a newspaper interview as “getting to the age when elevation to the bench becomes an increasingly attractive goal.”11
Just two months into the new administration, the Afro ran an editorial titled “Thurgood Marshall Next?” In it Carl Murphy named several black Democrats who had been given jobs in the new administration, then said, “We boldly submit that President Kennedy will find also a wise and able federal judge in Thurgood Marshall.”12
But Marshall’s relationship with the administration hit a rough patch. First, he was asked to come to Washington to talk with the new attorney general, Robert Kennedy, under the guise of discussing civil rights. The two really wanted to size each other up. It was a disaster. “I had a very unsatisfactory conference with Bobby about the civil rights movement shortly after they took over,” Marshall remembered. “He spent all this time telling me what we should do.”
By late March, Marshall was among the first to accuse the administration of forgetting black voters. He criticized President Kennedy for failing to include any civil rights legislation among the bills he sent to Congress in the first 100 days.
Despite the tensions between Marshall and the Kennedys, the new administration surprised the lawyer with an invitation to represent the president at a celebration of the independence of Sierra Leone, which had been under British colonial rule. In an apparent effort to stroke Marshall and tone down the criticism, he was not only asked to attend the celebration but given the rank of “special ambassador.” He took an ambulance, a “mobile x-ray and medical center,” as a gift from the United States to the people of the new black nation.
By the time Marshall returned to the United States, the good publicity generated by his trip had the White House again looking at him as a possible nominee for a judgeship. Frank Reeves, who had worked for Marshall at the NAACP, was now a special assistant to the president. Reeves got a letter from William Coleman, then the most prominent young black lawyer working at one of the nation’s major white law firms, which were still highly segregated. Coleman urged Reeves to get the president to appoint Marshall to the federal bench. He went so far as to suggest that some southerners might be angry, but Kennedy could assure Dixiecrats that Marshall would be in a New York court and would “handle no matter which would adversely affect the interests of the south.”13
By late May the House Judiciary Committee sent a list of black nominees to Attorney General Kennedy for openings on the federal bench in New York. Marshall’s name was on the list, and so was that of Robert Carter, Marshall’s former top aide who he had come to view as his private antagonist. The memo indicated that President Kennedy was “strongly of the opinion” that one—but only one—judgeship in New York go to a black person. The contest was quickly shaping up as Carter versus Marshall. Carter, although he was not as well known as “Mr. Civil Rights,” was far more acceptable to white southern congressmen, who would have to vote on the nomination.
“Thurgood Marshall is a Democrat,” the House Judiciary Committee wrote to the attorney general. “He is an excellent lawyer. Of course, we recognize that he is a controversial figure and we may have difficulty in getting him confirmed. As you know, he is a man of very positive and forceful convictions, perhaps a little too rigid in his views, yet, probably, the best qualified of all Negro applicants.”14
Despite the problems a Marshall nomination might cause, it had its strong points. Robert Kennedy did see the political advantage in making the best-known civil rights lawyer in the country a Kennedy appointee. Howe
ver, the younger Kennedy was only willing to put Marshall on the district court bench, not on the higher appeals court. That created a problem because Marshall refused to have his name put in for the lower court. He wanted an appeals court job, which would put him on the same level as his old Howard law professor Bill Hastie, who, as a member of the Third Circuit Court of Appeals, was the highest-ranking black judge in the country.
Marshall felt his lifelong accomplishments were being overlooked because the attorney general was making a purely political judgment about the cost of putting a civil rights lawyer on the appeals court. He viewed Attorney General Kennedy as “awfully ruthless,” but he agreed to another meeting
“I told Bobby Kennedy that I was not district judge material, because my fuse was too short,” Marshall subsequently told an interviewer. “I lose my temper. And that wasn’t good. But I would like to be on the Court of Appeals.”
Kennedy gave Marshall a take-it-or-leave-it offer for the district court. “It’s that or nothing,” Kennedy told him.
An indignant Marshall looked the attorney general dead in the face as he stood to leave. His eyes narrowed, and his voice dropped: “Well, I’ve been dealing with nothing all my life, there’s nothing new on that.”15
With Marshall locked in an emotional, political, and ego-driven fight with Kennedy, Bob Carter became the front-runner. One newspaper profiled him as the likely winner among contenders for the district court judgeship, which Carter was willing to accept. But Carter’s nomination was unexpectedly pushed off track after he interviewed with the judicial committee of the bar association. What happened during the interview was not revealed. But Jack Greenberg, who had replaced Carter as Marshall’s top assistant at the LDF, later said that Marshall told him Carter was undone by “his arrogance.”
Some of Carter’s friends thought Marshall had used his influence among the liberal, all-white bar to damage Carter. “Now what role Marshall played in that or any of Marshall’s friends can’t be said,” Greenberg later told an interviewer. “Some of Carter’s friends at least thought there was some such role.”16
The bar association’s failure to give Carter unqualified support left the administration in a jam. They still needed a black nominee to fill one of the vacant court seats in New York, and Thurgood Marshall’s name again floated to the top of the list. It was then that Marshall had a serendipitous meeting with Louis Martin, the lanky, honey brown newspaper publisher who was now the leading black politico at the Democratic National Committee. Martin and Marshall had long been friendly and often crossed paths on the political circuit.
“I saw Thurgood in the La Guardia Airport at a hot dog stand,” Martin recalled years later. In the hubbub of the busy airport, Martin said, “You know, we’re trying to get the president to appoint you to a judgeship, and we have to have you because you’re Mr. Civil Rights.” Marshall held the line he had set with Robert Kennedy; he would not accept a district court appointment. Martin now understood that Marshall was not bluffing.
“When I got back to Washington I talked to Bobby,” Martin recalled. “At first Bobby said, ‘How in the hell are we going to make an NAACP guy an appeals court judge?’ And I said, ‘I don’t give a damn how you could do it, you’ve just got to do it. That’s Mr. Civil Rights. We’ve got a lock on the civil rights thing if we get him.’ ”
Martin began an intensive campaign to persuade Bobby Kennedy to name Marshall. First he got several prominent white lawyers to speak highly of Marshall’s legal skills to the young Kennedy. Then Martin spoke with Assistant Attorney General Ramsey Clark, who wrote a memo to Kennedy’s deputy, Byron White. Clark characterized Marshall as “a symbol throughout the nation. He stands for peaceful efforts of a race to secure equal justice under law. [The] appointment of Marshall to the second highest court in the nation should be a wonderfully meaningful thing to millions of people and the culmination of a brave fight.” Martin’s efforts got a surprise boost when J. Edgar Hoover sent over a memo that while occasionally critical of Marshall, generally praised the civil rights attorney. A week later Bobby Kennedy called Martin and relented: “I think we might be able to do something for Thurgood.”17
Ironically, while Marshall was waiting to hear from Washington, he was stopped on the street by a New York policeman who accused him of following a pretty woman. Marshall came back to the office fearing that if newspapers heard about the incident and ran a story, his nomination would be dead. According to Greenberg, Marshall decided not to do anything until the story hit the papers. Luckily, it never did.18
The next time Marshall’s name appeared in the paper was when news of his appointment to the appeals court leaked. Meanwhile, the reports that Carter was being considered for a lower court judgeship quickly faded. Marshall was to be the only black lawyer from New York nominated by the Kennedys.
The nomination was carefully timed. The Kennedy brothers, anticipating opposition, nominated Marshall a week before the Senate Judiciary Committee was to go out of session for the rest of the year, not leaving the committee time to act. Thus the president was able to give Marshall a recess appointment, allowing the new judge to be in place until Congress could reconvene. That meant Marshall would be on the bench and acting as a judge before segregationist opposition to his appointment could take shape.
Marshall got word that the Kennedys were going to nominate him in mid-August. By the time the news arrived, it was wrapped in bittersweet overtones. Earlier in the month Thurgood’s mother, age seventy-four, had died. She had moved to New York to take care of Thurgood’s ailing Aunt Medi and to be closer to her son. But Norma Marshall grew ill herself. Aunt Medi and Thurgood helped to take care of her for nearly a year. The funeral was held at St. Philip’s in Harlem; Aubrey came up for the simple affair.
* * *
The good news of his nomination was also tempered by Marshall’s ongoing wrangle with Carter. Marshall did not want Carter to succeed him at the LDF, and he was busy behind the scenes trying to defeat him. Marshall called Jack Greenberg into his office one afternoon. He told the white Jewish lawyer that he was the best person to become the next head of the LDF. “I was astonished,” Greenberg later wrote.19 Marshall told Greenberg he was already working to get the board to select him.
Although Bob Carter had left the LDF and been assigned to the NAACP in 1956, there was still a widespread sense that he was second in command when it came to legal matters. Carter was bright and a hard worker who was well known in civil rights circles. He was expected by most casual observers to be Marshall’s successor. But the degree of rancor between Marshall and Carter was not widely known.
“He felt a responsibility to replace [himself] from within the staff, and the two options were Connie Motley and me,” Greenberg later said in an interview. “Obviously Carter was out of the question because of their relationship.… Thurgood spoke to the board of directors, and said I was eminently qualified, and of course, to quote Thurgood, ‘It would be better if he was a nigger, but nevertheless.… ’ ”20
Carter learned of Marshall’s efforts to bypass him, but there was not much he could do. The current LDF board was loyal to Marshall. There was some grumbling from Carter’s supporters on the NAACP side of the fence, but Marshall ignored it. John Hope Franklin, the historian, later said Carter was “bitter” and “felt he had been done in” by Marshall.21
Years later, Marshall tried to play down the politics and egos involved in the battle of succession: “I did make Greenberg my replacement because he had six months of seniority over Motley. Why would I have to appoint someone black? Should I just pick a man out of the street, get a damn street-cleaning black and appoint him? I mean, black isn’t it. Black isn’t it.”
Carter, in an interview years later, said it had long been clear to him that Marshall was doing all he could to prevent the LDF from ever having him as its director: “I knew damn well that [Thurgood made] the decision that I wasn’t going to replace him,” he said. “I felt very, very strongly that blacks
up to this point had carried the load and been the intellectual force in civil rights. And I felt that it was not good to have a white man running that. I felt that from now on, history was going to be rewritten, and it was going to be the whites who had done all the work, which was not true. Jack and I got to have a very antagonistic personal relationship.”
Carter also felt that Marshall may have had ulterior political motives in selecting a white person to succeed him. “It could have been that by picking Jack he was therefore pulling the fangs out of those people who felt that he was a racist in reverse,” said Carter. “He felt that this would ease congressional opposition to him getting a judgeship.”22
Marshall certainly wanted a smooth transition as he went from the mostly black NAACP family, which had raised him to prominence, to the white world of federal courts and high-stakes politics. For all his success and status as “the Black Lawyer” in America, he was still worried about making it outside the NAACP. Marshall had no idea how difficult that transition would be.
CHAPTER 28
Black Robes
THURGOOD MARSHALL HAD REALIZED A DREAM. Thirty years earlier, when starting his law practice on a shoestring, he’d fantasized about one day becoming just a local judge: “People call me a liar when I tell them that when I was a young lawyer in Baltimore, my highest aim was to be a magistrate—man, there were only two Negro magistrates in the country then.”1
Now at age fifty-three, Marshall’s reality turned out to be better than his boyish daydream. On October 23, 1961, he was sworn in as a federal judge and the first black American to serve on the U.S. Second Circuit Court of Appeals. More than 200 people gathered for the ceremony, held at the courthouse on Foley Square, on the lower end of Manhattan. Cissy and the boys joined a proud Thurgood along with Bill Hastie, the only other black federal appeals court judge. New York senator Jacob Javits, Labor Secretary Arthur Goldberg, and Roy Wilkins were also there.
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