Thurgood Marshall (55 page)

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.
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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.
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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.
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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!”
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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.”
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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.
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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.
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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.”
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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 case 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.’ ”
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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.

In November 1965, Marshall appeared before the Supreme Court to defend the federal government’s authority in bringing the charges. He cited an 1870 federal statute outlawing “conspiracies” intended to intimidate
blacks and deny them their constitutional rights. Lawyers for the accused argued that any charge of murder was the legal responsibility of the state, not the federal government. In a unanimous decision the Supreme Court ruled in Marshall’s favor
(U.S. v. Price)
. Six of the men were later tried for conspiracy and found guilty.

Marshall soon had two other major victories. First, in January 1966, he argued that Virginia was violating the Twenty-fourth Amendment—which outlawed poll taxes—by requiring its residents to pay a tax to vote in state and local elections. Marshall argued that poll taxes in any election were illegal and had the effect of putting a coin-operated “turnstile” in front of the voting booth. The Court, in a 6–3 decision, ruled in Marshall’s favor
(Harper v. Virginia Board of Elections)
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A few months later the solicitor general broke new ground before the Court by claiming that New York State was violating the Voting Rights Act. The state had prohibited American citizens born in the U.S. territory of Puerto Rico who were literate but spoke only Spanish from voting. The new solicitor general said the government had no problem with requiring that voters be literate; it was opposed to the English-only restriction. The Court ruled 7–2 in favor of Marshall
(Katzenbach v. Morgan)
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While Marshall argued a fair number of cases, he did not spend as much time in court as had Archibald Cox. His predecessor had sometimes argued three or four cases a week, and his style was formal and academic, as if he were lecturing the justices. By contrast, Marshall’s style was fairly casual. He was conversational with the justices and deferential to their points. Nonetheless, Marshall was seen as an effective advocate, and fears about his ability to handle anything but civil rights cases faded, even if they did not go away.

As he took control of his new post, Marshall became a well-known figure in the administration. During 1966 he was in and out of the White House, for meetings with the president as well as for state dinners and ceremonies. Marshall and the president frequently talked about civil rights, but their discussions ranged through American policy and history. “I know that when he was solicitor, President Johnson called upon him for advice in many things having nothing to do with civil rights,” said Bill Coleman, lawyer and close friend to Marshall. “He and Johnson really got along, they both had that hearty laugh, they were both gutsy, and could tell stories. They were awfully good friends.”

“We talked about a lot of things that I ain’t gonna talk about,” Marshall said later. “Johnson’s ambition was, ‘That history must show that
compared to me, Lincoln was a piker.’ He wanted to outdo him. Takes a hell of a lot of doing. But that man, I loved that man.”

As Marshall was getting to know Johnson, the president was preoccupied with the military buildup in Vietnam. The war was quickly becoming unpopular, damaging Johnson’s public standing day by day. Marshall defended him as a victim of bad advice. “That was the military’s fault,” he said. “The military got McNamara in a box, and the generals fed this stuff to him, and McNamara parroted it to Johnson. Not once did I go to the White House that McNamara wasn’t either going in or going out. He must have gone over there two or three times a day.”

Black Nationalists were some of the most vocal critics of Johnson’s policy in Vietnam. They pointed out that 20 percent of U.S. troops in Vietnam were black and called it a “race war” run by white politicians who were using blacks to kill Asians. In March 1966, Marshall made a point of hitting at these opponents. He said black soldiers were patriotic, willing to die for their country, and neither black nor white military people should be criticized for fighting Communism. “If our country needs fighting men we are always there,” Marshall told a crowd at Bethel Methodist Church in Baltimore.
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Marshall’s frequent visits to the White House were not limited to serious policy matters. Over glasses of bourbon and Dr Pepper, Johnson and Marshall would also trade gossip. One of their targets was the new senator from New York, the former attorney general, Robert Kennedy. Marshall still remembered Bobby Kennedy’s reluctance to nominate him for the Second Circuit, and Johnson viewed the younger brother of the assassinated president as a possible foe in the 1968 Democratic primaries. Johnson regularly dumped on Bobby in his talks with Marshall.

“Whooooo! That started with Bobby,” Marshall said in an interview. “They had a big conference in the Kennedy White House on some big deal. And sure enough Johnson heard about it. So he called and wanted to know about the meeting. An aide announced: ‘The vice president’s on the phone and he wants to know whether he’s to come over or not?’ And without even covering up the phone, Bobby said, ‘We don’t need that stupid son of a bitch for nothing. Tell him to go to hell!’ ”

Marshall said Johnson held a grudge from that point on. When Johnson became president and Bobby Kennedy asked him to support his campaign for the Senate, Johnson quipped: “Remember what you said about me before. That goes for you now!”

Away from Washington’s political wars, Marshall led a cloistered life.
The family lived in a small town house, hidden in a new development not far from his downtown office. He had some small dinner parties, where guests recalled that he liked to carve roasts with a new invention, the electric knife. Generally, Marshall spent little time on the social scene or hanging out with friends.

“When he moved down to D.C., from that point on they took Thurgood out of circulation, told him he couldn’t move around, talking, catting around, and all that kind of stuff,” said his friend Monroe Dowling. “And he started getting disagreeable. You know, he couldn’t play around with women, or even come out and play poker with the boys and things like that.” The new solicitor general, who by now had to wear bifocals everywhere, also began to put on weight in his new sedentary life. A
New York Times Magazine
piece on Marshall claimed that he now weighed far more than two hundred pounds: “While not exactly fat, Marshall is comfortably thick, with a double chin that hangs like a testament to a man whose idea of physical exercise is to avoid all thoughts of it.”
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