LBJ’s shrewd moves to make Thur­good Mar­shall the first black jus­tice

The Washington Post Sunday - - OBITUARIES - DENEEN L. BROWN deneen.brown@wash­post.com Ex­cerpted from wash­ing­ton­post.com/news/ retropo­lis

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.”

ASSOCIATED PRESS

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.

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