Thurgood Marshall was fifty-eight years old, the U.S. Solicitor General, and had been arguing cases before the Supreme Court for two decades when Lyndon Johnson nominated him to the Supreme Court in 1967. His confirmation hearings should have been smooth sailing, but they were not.
After two days of punishing cross-examination before the Senate Judiciary Committee, Marshall’s confirmation was precarious enough that Lyndon Johnson’s White House staff were quietly lining up a more conservative alternative in William Coleman, a Republican attorney who had worked in the Eisenhower administration and on the Warren Commission.
Johnson was prepared to accept the reality that Marshall’s confirmation was in jeopardy because of his liberal policy positions, but Johnson would not be cowed from making a monumental mark on the Supreme Court. Marshall and Coleman — longtime colleagues who had worked together on Brown v. Board of Education and other civil rights cases — were both African-American.
Historian Wil Haygood goes behind the scenes of Marshall’s lengthy and ultimately successful confirmation hearings before a Judiciary Committee dominated by segregationist southerners in Showdown: Thurgood Marshall and the Supreme Court Nomination that Changed America. Signature caught up with Haygood to talk about Marshall’s racially charged confirmation and his long, distinguished career before he joined the Supreme Court.
Signature: Marshall started the NAACP’s Legal Defense and Education Fund and was one of the group’s more active attorneys. Can you talk a bit about what those attorneys did in the 1940s and ‘50s?
Wil Haygood: Marshall founded the NAACP LDF in the mid-1930s. He had a vision that to tackle hardcore institutional racism in this country that he would have to file lawsuits in the areas of jobs, housing and voting rights. He had the mindset that if he could tackle those three ills that daily harmed blacks that he could begin to make life fair.
He became known early in his career for a federal lawsuit that went to the Supreme Court called Shelley v. Kraemer that was a housing lawsuit, Sweatt v. Painter that began to integrate the University of Texas law school, and there was his titanic victory in Brown v. Board of Education in 1954 that, in theory, desegregated the American public school system.
SIG: Was Marshall involved in selecting the four cases that wound up being consolidated into Brown, or did he become involved when those cases were on appeal?
WH: He was involved in those four cases, but there were other lawyers in those cities that worked on those cases. Marshall would sit in his NAACP office in New York City looking at cases around the country. He thought bringing several cases together before the U.S. Supreme Court would be more potent. It was also Marshall’s way of finding out who the good lawyers were around the country to work on these cases.
SIG: He argued the Brown case in front of the Supreme Court. Was that earlier or later in his career as a Supreme Court advocate?
WH: Later. He first argued before the Supreme Court in 1940, and he started arguing the school cases that resulted in Brown in 1952. By the time he got to the Supreme Court in Brown, he was savvy and smart and knew what he was doing.
SIG: Was he a celebrity — somebody that people outside the establishment recognized — when he was nominated to the Supreme Court?
WH: I went to South Carolina where the Brown case had its origins, and there was an elderly black lawyer there who recently passed away. He said when Thurgood Marshall came to Clarendon County to argue the South Carolina desegregation case in 1952, there was a line of black sharecroppers and farmers and parents who just wanted equal schools for their children. They had lined the whole block just to catch a glimpse of him.
Marshall was seen as a kind of savior. No one else in history had done this type of advocacy work on behalf of blacks as he had done. There were countless death threats, but he didn’t let those threats stop him.
SIG: Did anyone you talked to indicate whether the nomination was very particular to Marshall as an experienced Supreme Court advocate, or was Johnson looking to make a statement with the nomination?
WH: One of Johnson’s White House aides knew that Johnson wanted to integrate the U.S. Supreme Court. There were other accomplished, well-known black lawyers, but this aide told LBJ that the argument begins and ends with Thurgood Marshall. President Johnson had appointed Marshall as solicitor general, and Marshall had a stellar record in that post.
SIG: Was he a prototypical solicitor general, or was he more involved in the policy planning end of it?
WH: He was the nation’s lawyer so he argued all sorts of cases — railroad cases, health cases, drug cases before the Supreme Court and got very good grades for it. He loved that job, though he wasn’t in it long before he was nominated. Marshall’s Brown victory had changed the law throughout the nation and particularly in the South, so those senators on the Judiciary Committee who were from the South loathed Marshall.
In 1967 when he was nominated, there was a looming showdown. Marshall who had changed the South would now face senators with big reputations and a lot of power over the Senate Judiciary Committee like James Eastland of Mississippi, Sam Ervin of North Carolina, Strom Thurmond of South Carolina, and John McClellan of Arkansas.
SIG: Was there an openly racial component to the confirmation hearings, or was it all coded in language of favoritism and ideology.
WH: At that time there was a lot of racial unrest on the streets, so many of those southern senators who didn’t like Marshall asked him if he was soft on crime because he had fought for the rights of blacks unfairly accused of crimes in the South. That’s not to say that blacks didn’t commit crimes, but there was a lot of injustice in the Deep South. Some of the questions were very blunt. Senator Eastland asked Marshall if he liked white people. Senator Thurmond asked Marshall to recite the Slave Codes from the Civil War era, which was to insult Marshall’s intelligence.
Thurgood Marshall graduated No. 1 in his class at Howard Law School, so answering questions like that had to be painful. Those were the kinds of questions that blacks were asked when they tried to register to vote.
SIG: Was there a filibuster threat with Marshall’s nomination, or did beating filibuster threats in 1965 and 1966 make that less of an issue by 1967?
WH: He was confirmed 62-11, but it wasn’t really a wide victory. By the rules of the Senate, the southern senators were only eight votes short of a filibuster. President Johnson was able to convince twenty southern segregationists to not vote, which was amazing because senators lived on their votes. For Lyndon Johnson to twist the arms of twenty other southerners was really quite amazing.
SIG: The book has an interesting structure. Can you talk about about how it’s organized and how you got to that approach?
WH: No one had ever written about Marshall’s confirmation hearings, so I thought that would be interesting to dive into. When I realized that Marshall’s five-day confirmation was the longest up to that time, I thought I had a story. I wanted to veer outside that room to the hometown of Senator Eastland of Mississippi to show the reader what formulated his mindset. I wanted to take the reader to the South Carolina home of Strom Thurmond to show what formed his mindset. I wanted to take the reader to Thurgood Marshall’s boyhood in Maryland and to see his mother and father.
The book is structured partly as a thriller. There were days when I was writing in my study that I would lean back in my chair and wonder if he was going to make it. The five days of hearings were stretched over fourteen days, so Senator Eastland would sometimes cancel the hearing the night before. That made Marshall extremely nervous because he didn’t know why.
SIG: I love the video of the press conference where he announced his retirement. Someone asked why he was retiring, and he says, “because I’m old.”
WH: I’m old! I’m tired! It is great.
Scroll to 5:20 in the clip below for the candid remark mentioned above.