Marshall continued grappling with the law, doing diligent, if not brilliant work. “When he was on the Court of Appeals in the Second Circuit here in New York, I think he was regarded as tolerable but not in any sense as a strong addition to the bench,” said Walter Gellhorn, then a Columbia law professor who had worked with Marshall at the LDF.33 By mid-1965 Marshall had written ninety-nine majority opinions, eight concurring opinions, and only twelve dissents. His dissents showed an inclination to embrace a wider interpretation of constitutional protections than the other judges.
In his most celebrated dissent on the Second Circuit, People of New York v. Galamison (1965), Marshall sided with civil rights protesters who were blocking access to a main road leading to the New York World’s Fair. The demonstrators were angry over poor-quality housing and a lack of jobs for blacks in New York. He argued that the demonstrators had guarantees of free speech—even if they were violating traffic laws. When asked about the rights of people who wanted to go to the World’s Fair without interference from demonstrators, Marshall replied that fair-goers’ rights were not compromised by the protest. “They’ll go around to another entrance,” he said.
In another example of his central belief in individual rights, Marshall wrote the majority opinion for a three-judge panel that found a murder suspect could not be tried twice for the same crime by a Monroe County, New York, court. The opinion, Hetenyi v. Wilkins (1965), was the first time that federal law prohibiting double jeopardy was extended to local courts.
Although his work on the court did not make national news, Marshall had adjusted to life on the federal bench after four years. He was respected by his fellow judges, he had lifetime tenure in a good-paying job, and he had a happy life in New York. His sons were in good schools, and he had a steady routine with his wife and friends. Then, in July 1965, he got a phone call.
As he was eating in the judges’ dining room, a bailiff came running over to his table. Panting and red-faced, the bailiff could barely speak once he got Marshall’s attention. Concerned, Marshall said, “Fred, what in the world is wrong?”
“The president wants to speak to you,” the bailiff sputtered. “He’s on the phone!” Marshall gave him a bewildered look and asked: “The president of what?”
“The president of the United States!”34
CHAPTER 29
Johnson’s Man
IN JULY 1965, when President Johnson called Thurgood Marshall, the civil rights movement had taken to the streets with marches, protests, and even riots. With TV news cameras rolling, state troopers in Selma, Alabama, had beaten people demanding their voting rights. Malcolm X had been assassinated and become a martyr. Black militancy was on the rise, and whites were fleeing the cities. In the middle of all this turmoil, Marshall had unique status. He was a respected black leader, a living symbol of America’s ability to achieve peaceful racial progress, and an advocate of law and order.
As he went to get Johnson’s call, Marshall was puzzled. Why would the president be calling him? He had met Johnson in Texas during the 1940s. At that time Marshall was fighting the all-white primary system. Later the NAACP had supported Johnson in his race for the U.S. Senate. He had bumped into him a few times in Washington when Johnson had been Senate majority leader. Johnson had even invited him to a White House Fellows ceremony a few days earlier. But that had been their only recent contact.
When he got to his chambers, Marshall was surprised to find it really was the president of the United States on the phone. They talked for two or three minutes before Johnson, in his abrupt way, said: “I want you to be my solicitor general.” The job offer hit Marshall like a lightning bolt. It was a godsend for a man who was trudging along—if not bored—as an appeals court judge. But he immediately realized that he couldn’t leap at the job. He had deep concerns about leaving a lifetime appointment with a guaranteed pension. And the annual salary of the solicitor general was $4,500 less than his current salary.
“Well, Mr. President, I’ll have to think it over,” he responded. The president told him to take as much time as he wanted. A flattered, excited Marshall went home to tell Cissy about the offer and the prospect of a high-pressure job in the vicious political hothouse that was Washington, D.C.
As soon as Marshall arrived at the office the next morning, the phone rang and his secretary announced that the president was on the line again. The judge was surprised to hear from him so quickly: “Well, Mr. President, you said I had all the time I needed.” Johnson replied, “You’ve had it.” In an instant Marshall had to make a decision that would affect the rest of his life. Marshall decided to grab the moment and the excitement. His voice breaking with emotion, he told the president he would be glad to be the nation’s first black solicitor general.
The next day, July 9, 1965, Marshall flew to Washington to see Johnson in the Oval Office. He was excited but played coy by complaining about the loss of salary he faced if he took the job. Johnson was not sympathetic: “You don’t have to tell me. I can tell you everything about your situation, including what you’ve got in your bank account. I’m still asking you to make the sacrifice.”
As the two large, strong-minded men sat in the quiet of the Oval Office, the blustery and charming Johnson made two points to Marshall.
First, he complimented Marshall’s ability as a lawyer and said he needed an outstanding legal mind to represent him before the Supreme Court. The compliment was not made casually. Marshall would be replacing Archibald Cox, who had stayed on as solicitor general after Kennedy’s assassination. The Harvard professor was widely respected for his hard work and knowledge of the smallest detail of the law. Cox had not wanted to leave, but when he sent a note to the president asking for a vote of confidence, Johnson used it as an opportunity to move him out. Given the ruffled feathers in legal circles, there were sure to be questions about whether Marshall was up to the task of replacing the esteemed Cox.
Johnson’s second point had to do with the color of Marshall’s skin. The president told him that he wanted people, young people of both races, to come into the Supreme Court and ask who was that “Negro” up there arguing? And somebody would say, “He’s the solicitor general of the United States.”
Johnson did his usual masterful job of persuasion. But nothing the president said was as large in Marshall’s mind as his unspoken desire to be on the Supreme Court. However, the president refused to make any promises about future appointments. “You know, this has nothing to do with any Supreme Court appointment,” the president said. “I want that distinctly understood—there’s no quid pro quo here at all. You do your job. If you don’t do it, you go out. If you do it, you stay here. And that’s all there is to it. ”1
Contrary to what Johnson may have told Marshall, the president had given thought to putting him on the Supreme Court. Johnson viewed the solicitor general’s job as a tryout for the possible first black associate justice of the Court. Ramsey Clark, then a deputy attorney general and a fellow Texan, had mentioned Marshall’s name to the president a few weeks earlier while sailing, and the president had seemed excited.
“I saw Marshall give a speech at a luncheon in ’65,” Clark said in a later interview. Shortly after that speech the president asked Clark and his wife, Georgia, to come on a boat trip with him and Lady Bird Johnson. Johnson and Clark had gone belowdecks to talk about appointments. The president lay down on a bunk as the conversation droned on. Finally the two came to the opening for solicitor general.
“When I mentioned Marshall’s name, Johnson sat bolt upright,” Clark recalled. “He nearly bumped his head on the low ceiling. I don’t think he ever thought of anybody else; he wanted Thurgood Marshall to be his solicitor general.” Clark recalled that the first words out of Johnson’s mouth were, ‘Ah ha, he’s going on the Supreme Court.’ ”2
Johnson later confirmed that he intended to put Marshall on the high court the minute he appointed him as solicitor general. “I did not tell Marshall of my intentions at this time,” J
ohnson said in an interview. “But I fully intended to eventually appoint him to the Court. I believed that a black man had to be appointed to that body.… I wanted him to serve as Solicitor General as an advocate to prove to everyone, including the President, what he could do.”3
Johnson also told his wife, who wrote the pledge in her diary: “Lyndon admires Judge Thurgood Marshall and spoke of the possibility of asking him to be Solicitor General, and then if he proved himself outstanding, perhaps when a vacancy on the Supreme Court opened up, he might nominate him as a justice—the first of his race,” Lady Bird wrote two weeks before Marshall’s selection as solicitor general was announced.4
When Johnson called his attorney general, Nicholas Katzenbach, to tell him about Marshall’s appointment, Katzenbach warned the president that if Marshall did not eventually get a seat on the Supreme Court, it could cause problems: “If you do that, you are making an implied promise.” Katzenbach was concerned that if a vacancy opened and Johnson failed to put Marshall on the Court, the president would have to deal with the political fallout, from both liberals and blacks. “All of Johnson’s record on civil rights, and it was a hell of a record, would go down the drain,” said Katzenbach.5
On Tuesday, July 13, Marshall and Johnson walked into the White House press room to announce that Marshall would become solicitor general. The moment the two appeared, Marshall could hear whispers as reporters began asking each other, “Who’s resigning from the Supreme Court?” Once they quieted down, Johnson formally introduced Marshall, calling his nominee one of the country’s most distinguished advocates.
There was immediate concern that segregationists would fight Marshall’s confirmation, much as they had tried to kill his nomination to the Second Circuit. However, Johnson privately assured him that he could “take care of the confirmation.” Putting an arm around his new nominee, the president told him, “If you can stand the gaff, I can.”6
Johnson held a strong hand in dealing with Marshall’s potential opponents in the Senate. As the former majority leader, he knew a lot of secrets about the senators. And he had nominated former Mississippi governor James P. Coleman, a renowned segregationist, for a federal judgeship. The nomination had its critics, but the president had firmly supported Coleman. Johnson let segregationists know that if Marshall’s nomination faltered, his support for Coleman would disappear.7
Two weeks later Sen. Robert Kennedy, the former attorney general and Marshall’s old foe, introduced Marshall to a Senate Judiciary subcommittee. “I think that he has big shoes [to fill] with his predecessor Mr. Archie Cox,” said Kennedy. “But I know of the talents Thurgood Marshall has.… He will make one of the great solicitor generals in the history of this country.”
The hearing opened with Sen. Jacob Javits asking the nominee if he could represent the government in civil rights cases since he had been the NAACP’s chief counsel. Marshall replied, “I am an advocate and I represent the U.S. government and I will do the best I can.” He said “personal emotions” did not matter. Marshall added, as proof of his legal skills, that none of his more than 100 rulings on the Second Circuit had been overturned by the Supreme Court.
Javits, exploring whether Marshall was being primed for a high court appointment, also asked him why he was giving up a fully tenured judgeship for a temporary political appointment. Marshall dodged the question with a patriotic response. “The president of the United States told me that he thought I was the best person at the time to represent the United States,” he replied.8 In marked contrast to his second circuit nomination only one fifteen-minute meeting was held and the subcommittee voted 5–0 to recommend Marshall’s nomination to the full Senate. On August 11, 1965, less than a month after he was nominated, the full Senate confirmed Marshall, without debate, to be solicitor general.
Between the time Marshall was confirmed by the Senate and when he was sworn in as solicitor general, the nation was shaken by rioting in the Watts section of Los Angeles. More and more Marshall became the federal government’s walking symbol for a responsible, peaceful civil rights movement. The president had him in a front-row seat at the Capitol for the signing of the Voting Rights Act. And Johnson appointed him to lead a delegation to Sweden for a UN conference on crime. At that conference Marshall was in charge of a group of Americans that included his former nemesis from the NAACP, Bob Carter.
He was back in Washington by August 24 and was sworn in by Associate Justice Hugo Black in the White House Cabinet Room. President Johnson spoke to a large group, including Supreme Court Justice Tom Clark (Ramsey Clark’s father) and FBI Director J. Edgar Hoover. Also in attendance were more than two dozen of Marshall’s family members from Baltimore. His brother, Aubrey, who was working as a doctor in Delaware, led the family delegation.
“Thurgood Marshall symbolizes what is best about our American society: the belief that human rights must be satisfied through the orderly process of law,” President Johnson said in remarks that had particularly strong resonance in the week after the Watts riots. At one point Johnson slipped up and referred to his new appointee as “Justice Marshall.” He quickly corrected himself, but everyone in the room took note.9
While Johnson did not say it, Marshall now ranked as the top black official ever to serve in the U.S. government. He outranked Robert Weaver, the head of the housing department, which was not yet a cabinet-level post.
During the swearing-in ceremony, Johnson whispered to Marshall that he had heard his family was remaining in New York. The new solicitor general tried to change the subject. The president, however, was genuinely upset. “What the hell is this about you commuting?” he said, pushing his face next to Marshall’s ear. “But—” Marshall stammered. Johnson, now standing face-to-face with Marshall, planted a stiff finger in Marshall’s chest and said, “But nothing! Move down!”10
Three weeks later Marshall sent the president a note: “I took your gentle hint, which you gave me at the swearing-in ceremony, and am moving the family to Washington. Cissy and the boys will be down early next week. The boys will be going to Georgetown Day School, and I have rented a small house at 64-A ‘G’ St, SW” The president wrote back that he was “delighted.”11
The idea of a black solicitor general did cause some concern at the Justice Department. Ralph Spritzer, the chief assistant solicitor, recalled in an interview that even before Marshall arrived there was particular nervousness from one secretary from South Carolina. The woman told Spritzer that she had never worked for a black man and said, “I don’t know if I’d be comfortable.” At the time there was only one other black person in the office, Grafton Gaines, a courier. Gaines was very aware that whites were uptight about the arrival of a black boss. But to his surprise the trepidation soon melted away. “When Marshall walked in, he had his hand a going and said ‘Good morning, how you doing.’ He walked in there and acted so relaxed, and you could see them relaxing. And it was just like he had been there all his life,” said Gaines.12
Marshall made a special point of being friendly to the white secretary from South Carolina. After a week she not only had decided to stay but was telling co-workers that she loved her job.13
But for the all-white legal staff the concern was not only about race. The lawyers didn’t know whether Marshall could handle the work when it went beyond civil rights cases. “There was such apprehension,” recalled Louis Claiborne, another attorney working in the office. “People were pleasantly surprised to see that Marshall was much more up to it than they had imagined.”14
* * *
Within his first two months in Washington, Marshall was busy with the transition in his office as well as at home. In addition to getting Cissy and the boys settled, he had to prepare to make his initial appearance before the Supreme Court. Like any other solicitor general, he had the option of sending one of his assistants to argue cases. But Marshall, who had not argued before the Court since 1960, when he was still with the LDF, felt the need to make a statement.
His first cas
e involved a Texas woman, Ethel Mae Yazell, who claimed the government was wrongly trying to get her to repay a government small business loan. Her lawyers argued that her husband had taken the loan, and under Texas law they could not hold her responsible for his default. Marshall, wearing the traditional tuxedolike jacket with a long tail and striped dark pants, argued the Texas law was “archaic.” His presentation took only eighteen minutes.
Not only was Marshall’s presentation brief but he was sufficiently at ease to joke afterward with reporters. The fifty-seven-year-old lawyer told them he was not nervous. One newsman described Marshall’s performance this way: “ ‘Hell,’ says the 33rd solicitor general of the United States, putting on a cotton-field Negro dialect, ‘I ain’t had de jitter in de Supreme Court since de day I was admitted to practice nearly 30 years ago. But dat day, oh boy. You couldda heard mah knees knockin’ way down in de hall.’ ”15
Despite his grand entrance the Court later ruled against Marshall and for Mrs. Yazell. But that small case was quickly forgotten as he presented the government’s arguments in a series of high-profile cases, particularly a sensational case involving the murders of three young civil rights workers.
Michael Schwerner, Andrew Goodman, and James Chaney, ages twenty-four, twenty, and twenty-one, were traveling through the small town of Philadelphia, Mississippi, on their way to investigate the burning of a nearby black church. They were arrested for allegedly speeding, put in jail, and then released. As they left the jail, some of the deputies followed them. It was unclear what happened next, but their bodies were found a month and a half later, buried in an earthen dam. The three had been shot with .38-caliber bullets, and Chaney, the lone black worker, had been brutally beaten. Twenty-one white men from Philadelphia, including the deputy sheriff, were charged with murder, but charges were later dropped in Mississippi state court. The federal government then brought federal civil rights charges against eighteen of the men.
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