LBJ’s shrewd moves to make Thurgood Marshall the first black justice
He had made Supreme Court history before, crafting the argument to dismantle legal segregation in U.S. public schools in the landmark case of Brown v. the Board of Education in 1954.
Now, on Oct. 2, 1967, Thurgood Marshall was poised to make history again — this time as the first black man to take a seat as a Supreme Court justice.
Marshall, the grandson of a slave who had become famous for using the Constitution to fight for equal rights, would move from arguing cases before the nation’s highest court to being one of nine justices to decide them.
His wife, Cissy Marshall, wore a pink linen suit and a flower in her hair as she helped adjust Marshall’s black robes before the swearing-in.
President Lyndon B. Johnson made an unannounced visit to the Supreme Court to witness the moment, the culmination of Johnson’s shrewd political maneuvering.
“It was often said around the Johnson White House that what LBJ wanted, LBJ got,” wrote Wil Haygood in his best-selling biography, “Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America.”
“And in the summer of 1967, LBJ wanted to put Thurgood Marshall, a Negro, on the Supreme Court.”
Haygood, a former Washington Post reporter, wrote in detail of how Johnson worked to get Marshall on the bench at a time when there was not a vacant seat on the court and one was not expected anytime soon.
“In order to nominate Marshall,” Haygood wrote, “Johnson had to make some fast chess-like moves.”
Indeed, he began moving people around like pieces on a chess board, moving and advancing pieces methodically, granting the men their desires for positions and power.
Johnson first persuaded Attorney General Nicholas Katzenbach to step down and then made him an undersecretary of state, Haygood wrote. Then he moved to appoint Ramsey Clark, the son of Supreme Court Justice Tom C. Clark, to attorney general.
He knew it would raise questions “about a perceived conflict of interest because Clark’s father sat on the high court,” Haygood wrote. “But Lyndon Johnson knew people; he knew the dynamics of fathers and sons, how a rising son could make a father swoon with pride, and how a father, if called upon to make a sacrifice for his one and only son, might do it almost as a reflex, without giving it a second thought.”
Johnson told Tom Clark of his intention to appoint Clark’s son as attorney general. Justice Clark, then a relatively young 67, quickly retired. Ramsey Clark was appointed attorney general, and Johnson got what he wanted: an opening on the court for Marshall, who was then U.S. solicitor general.
At noon on June 13, 1967, Johnson and Marshall walked out of the White House and into the Rose Garden. They were both imposing men — Johnson was 6foot-4 and Marshall was 6-foot-2 — with huge personalities.
Johnson carried his remarks rolled up in his right hand, according to black-and-white footage of the nomination from UCLA’s Film and Television Archives. Marshall stood to Johnson’s left in a light-colored suit with his hand in his right pocket. Marshall appeared confident, adjusting his black horn-rimmed glasses as Johnson spoke.
The president told reporters that he had just spoken with Chief Justice Earl Warren and informed him he was sending Marshall’s nomination to the Senate.
Marshall, Johnson noted, “has argued 19 cases in the Supreme Court since becoming Solicitor General. Before that time, he had argued some 33 cases. The statisticians tell me that probably only one or two other living men have argued as many cases before the Court — and perhaps less than half a dozen in all the history of the nation.”
Marshall had lost only eight cases as solicitor general, Johnson said, according to a record of the remarks archived online by the American Presidency Project. The president ticked off the rest of Marshall’s accomplishments, including graduating first in his class at Howard University Law School, serving as the chief litigator for the NAACP and his four years on the U.S. Court of Appeals for the 2nd Circuit in New York.
“I believe he has already earned his place in history, but I think it will be greatly enhanced by his service on the Court,” said Johnson, who knew there would be opposition to Marshall in the Senate from white Southerners but called his nomination “the right thing to do, the right time to do it, the right man and the right place.”
On Aug. 30, after an intense debate in the Senate, Marshall’s nomination was confirmed by a 69-to-11 vote. Eleven Southern senators voted against his confirmation, complaining not about his race but about his “activist” temperament.
Two days later, on Sept. 1, 1967, in a private ceremony at the court, Marshall, then 59, took the constitutional oath of office from Justice Hugo Black, who had once been a member of the Ku Klux Klan.
Supreme Court justices are required to take two oaths — the constitutional oath and the judicial oath, which Marshall would take on that first Monday in October.
Johnson joined Marshall’s wife and two young sons in the “family section” of the court to watch the swearing-in.
Marshall, then 59, put his right hand on a Bible held by the clerk of the Supreme Court and promised to “administer justice without respect to persons, and do equal right to the poor and to the rich.”
Then the president left, and Marshall was escorted to the junior seat on the bench to the left of Chief Justice Warren.
Four days later, on Oct. 6, 1967, Johnson penned a letter to Cissy Marshall, now 89, which she keeps at her Northern Virginia home along with an earlier letter LBJ sent her husband.
“Dear Mrs. Marshall,” the president wrote on White House stationery. “I was happy to witness the swearing-in of your distinguished husband. It was an historic occasion that I believe will live as long in America’s heart as it will in yours.”
The president closed the letter, “Sincerely, Lyndon B. Johnson.”
Thurgood Marshall, center, takes the oath as U.S. solicitor general on Aug. 24, 1965, with, from left, sons Thurgood Jr. and John, wife Cissy, President Lyndon B. Johnson, Associate Justice Hugo Black administering the oath and Attorney General Nicholas Katzenbach.