The saga of how Thurgood Marshall was nominated to the U.S. Supreme Court in 1967, eventually winning confirmation in a bruising battle, is one of presidential courage, political gamesmanship, and the mystery of a high court which held no vacancy.
Like much of the American judiciary, the Supreme Court in 1967 was all-white. For years blacks had dreamed of an integrated court. President Franklin Roosevelt received a barrage of letters from blacks in 1939 when there was a court vacancy, pleading with him to nominate the brilliant Harvard Law School graduate Charles Houston, who was black. Court watchers laughed at the mere suggestion.
In the aftermath of President John Kennedy's assassination, President Lyndon Johnson aimed to do something about racial inequality. There was blood in the streets, thousands of disenfranchised blacks rioting across summer months. Johnson passed the 1964 Civil Rights Act. Then came the 1965 Voting Rights Act. Those were two nails in the coffin of white supremacy. The third nail, Johnson figured, would come by elevating his solicitor general, Thurgood Marshall, to the Supreme Court. One problem: there was not yet a vacancy.
Johnson zeroed in on Associate Justice Tom Clark, a fellow Texan, who had no health problems and hadn't spoken to family members about stepping down. But Johnson played the family angle: LBJ told Clark he wanted to appoint his son, Ramsey Clark, to be attorney general — this after Johnson had maneuvered Attorney General Nick Katzenbach to step down and join the State Department. Two Clarks in such close proximity to federal power would raise eyebrows. "So Tom Clark," LBJ aide Joseph Califano told me, "had to retire, and Johnson got the vacancy."
By 1967 Thurgood Marshall had become a colossal figure in American jurisprudence. For decades he had been an attorney for the NAACP, amassing landmark victories before the Supreme Court: In 1944 there was Smith v. Allwright, which vanquished the all-white Democratic primary in Texas; Shelley v. Kraemer came in 1948, which halted the barring of blacks from buying property, even if written into a homeowner's deed; Sweatt v. Painter was decided in 1950, which forced the University of Texas to integrate its law school.
The young Marshall had moved like a phoenix for years, in and out of state and federal courthouses, saving black lives, filing lawsuits, jawboning his way away from threats of police brutality and death threats. In 1954 came the sweeping Supreme Court decision in Brown v. Board of Education, outlawing segregated schooling. The resistance in the American South was fierce; below the Mason-Dixon Line Marshall was proclaimed "Public Enemy No. 1." It was a sobriquet usually attached to vicious criminals.
Johnson was so worried about the Marshall nomination in the summer of 1967 that he didn't inform the press in advance, an unheard of possibility in today's fevered political climate. LBJ's fellow Southern senators — he had once been Senate leader — loathed him for the surprise announcement. Southerners depended on their powerful senators — John McClellan of Arkansas, Strom Thurmond of South Carolina, Sam Ervin of North Carolina, James Eastland of Mississippi, all on the Senate Judiciary Committee — to tarnish Marshall's name and bruise the nomination in the committee hearings. The strategy of those senators leaned ultimately toward filibustering the nomination to death once it reached the Senate floor.
For five years I roamed in and out of the southern communities Marshall had legally altered. Aging Southern white men told me that when they were children they were told to think of Thurgood Marshall as the boogeyman.
The Marshall hearings got under way on July 13, 1967. The heated exchanges from the first day's hearings were so troublesome that LBJ concocted a fallback plan should Marshall fail to win confirmation: He would simply nominate another black man, the esteemed Philadelphia lawyer William Coleman.
Coleman, a Republican, was summoned to the White House. He was stunned when told of the plan. He was also conflicted. He was a close friend of Marshall's. He could not betray him. "I said the pay was lousy," Coleman confided to me on what he told the White House. Coleman did, however, offer a strategic boost. He knew Pennsylvania Sen. Hugh Scott, also a Republican, very well and promised to lobby him on Marshall's behalf.
The hearings went on for five days, up to that point the lengthiest Supreme Court nominee hearings in history. On the final day of hearings, Detroit erupted in a massive race riot over police brutality and the killing of unarmed black youth by police — scenes eerily resonant of the racial nightmares haunting present-day America, from Ferguson, Mo., to Baltimore, Marshall's hometown.
Finally, after weeks of leaving the nominee in limbo, it was time for the full Senate to vote. The scene was stirring, Dixiecrat senators bellowing against Marshall, moderates and liberals carrying the day for the White House. The final tally may have been 62-11, but it masked the fact that Southern senators had still been within a handful of votes of causing a filibuster. The cunning LBJ had persuaded 20 segregationist senators to abstain from voting, an unbelievable occurrence for such a charged and historic vote.
For Thurgood Marshall, it all seemed to justify his life as a judicial activist, a role he relished when it was the only legal option to free his people, who were, after all, Americans too.