Thurgood Marshall (51 page)

“I saw Thurgood in the La Guardia Airport at a hot dog stand,” Martin recalled years later. In the hubbub of the busy airport, Martin said, “You know, we’re trying to get the president to appoint you to a judgeship, and we have to have you because you’re Mr. Civil Rights.” Marshall held the line he had set with Robert Kennedy; he would not accept a district court appointment. Martin now understood that Marshall was not bluffing.

“When I got back to Washington I talked to Bobby,” Martin recalled. “At first Bobby said, ‘How in the hell are we going to make an NAACP guy an appeals court judge?’ And I said, ‘I don’t give a damn how you could do it, you’ve just got to do it. That’s Mr. Civil Rights. We’ve got a lock on the civil rights thing if we get him.’ ”

Martin began an intensive campaign to persuade Bobby Kennedy to name Marshall. First he got several prominent white lawyers to speak highly of Marshall’s legal skills to the young Kennedy. Then Martin spoke with Assistant Attorney General Ramsey Clark, who wrote a memo to Kennedy’s deputy, Byron White. Clark characterized Marshall as “a symbol throughout the nation. He stands for peaceful efforts of a race to secure equal justice under law. [The] appointment of Marshall to the second highest court in the nation should be a wonderfully meaningful thing to millions of people and the culmination of a brave fight.” Martin’s efforts got a surprise boost when J. Edgar Hoover sent over a memo that while occasionally critical of Marshall, generally praised the civil rights attorney. A week later Bobby Kennedy called Martin and relented: “I think we might be able to do something for Thurgood.”
¹⁷

Ironically, while Marshall was waiting to hear from Washington, he was stopped on the street by a New York policeman who accused him of following a pretty woman. Marshall came back to the office fearing that if newspapers heard about the incident and ran a story, his nomination
would be dead. According to Greenberg, Marshall decided not to do anything until the story hit the papers. Luckily, it never did.
¹⁸

The next time Marshall’s name appeared in the paper was when news of his appointment to the appeals court leaked. Meanwhile, the reports that Carter was being considered for a lower court judgeship quickly faded. Marshall was to be the only black lawyer from New York nominated by the Kennedys.

The nomination was carefully timed. The Kennedy brothers, anticipating opposition, nominated Marshall a week before the Senate Judiciary Committee was to go out of session for the rest of the year, not leaving the committee time to act. Thus the president was able to give Marshall a recess appointment, allowing the new judge to be in place until Congress could reconvene. That meant Marshall would be on the bench and acting as a judge before segregationist opposition to his appointment could take shape.

Marshall got word that the Kennedys were going to nominate him in mid-August. By the time the news arrived, it was wrapped in bittersweet overtones. Earlier in the month Thurgood’s mother, age seventy-four, had died. She had moved to New York to take care of Thurgood’s ailing Aunt Medi and to be closer to her son. But Norma Marshall grew ill herself. Aunt Medi and Thurgood helped to take care of her for nearly a year. The funeral was held at St. Philip’s in Harlem; Aubrey came up for the simple affair.

* * *

The good news of his nomination was also tempered by Marshall’s ongoing wrangle with Carter. Marshall did not want Carter to succeed him at the LDF, and he was busy behind the scenes trying to defeat him. Marshall called Jack Greenberg into his office one afternoon. He told the white Jewish lawyer that he was the best person to become the next head of the LDF. “I was astonished,” Greenberg later wrote.
¹⁹
Marshall told Greenberg he was already working to get the board to select him.

Although Bob Carter had left the LDF and been assigned to the NAACP in 1956, there was still a widespread sense that he was second in command when it came to legal matters. Carter was bright and a hard worker who was well known in civil rights circles. He was expected by most casual observers to be Marshall’s successor. But the degree of rancor between Marshall and Carter was not widely known.

“He felt a responsibility to replace [himself] from within the staff, and
the two options were Connie Motley and me,” Greenberg later said in an interview. “Obviously Carter was out of the question because of their relationship.… Thurgood spoke to the board of directors, and said I was eminently qualified, and of course, to quote Thurgood, ‘It would be better if he was a nigger, but nevertheless.… ’ ”
²⁰

Carter learned of Marshall’s efforts to bypass him, but there was not much he could do. The current LDF board was loyal to Marshall. There was some grumbling from Carter’s supporters on the NAACP side of the fence, but Marshall ignored it. John Hope Franklin, the historian, later said Carter was “bitter” and “felt he had been done in” by Marshall.
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Years later, Marshall tried to play down the politics and egos involved in the battle of succession: “I did make Greenberg my replacement because he had six months of seniority over Motley. Why would I have to appoint someone black? Should I just pick a man out of the street, get a damn street-cleaning black and appoint him? I mean, black isn’t it. Black isn’t it.”

Carter, in an interview years later, said it had long been clear to him that Marshall was doing all he could to prevent the LDF from ever having him as its director: “I knew damn well that [Thurgood made] the decision that I wasn’t going to replace him,” he said. “I felt very, very strongly that blacks up to this point had carried the load and been the intellectual force in civil rights. And I felt that it was not good to have a white man running that. I felt that from now on, history was going to be rewritten, and it was going to be the whites who had done all the work, which was not true. Jack and I got to have a very antagonistic personal relationship.”

Carter also felt that Marshall may have had ulterior political motives in selecting a white person to succeed him. “It could have been that by picking Jack he was therefore pulling the fangs out of those people who felt that he was a racist in reverse,” said Carter. “He felt that this would ease congressional opposition to him getting a judgeship.”
²²

Marshall certainly wanted a smooth transition as he went from the mostly black NAACP family, which had raised him to prominence, to the white world of federal courts and high-stakes politics. For all his success and status as “
the
Black Lawyer” in America, he was still worried about making it outside the NAACP. Marshall had no idea how difficult that transition would be.

Black Robes

T
HURGOOD
M
ARSHALL HAD REALIZED A DREAM
. Thirty years earlier, when starting his law practice on a shoestring, he’d fantasized about one day becoming just a local judge: “People call me a liar when I tell them that when I was a young lawyer in Baltimore, my highest aim was to be a magistrate—man, there were only two Negro magistrates in the country then.”
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Now at age fifty-three, Marshall’s reality turned out to be better than his boyish daydream. On October 23, 1961, he was sworn in as a federal judge and the first black American to serve on the U.S. Second Circuit Court of Appeals. More than 200 people gathered for the ceremony, held at the courthouse on Foley Square, on the lower end of Manhattan. Cissy and the boys joined a proud Thurgood along with Bill Hastie, the only other black federal appeals court judge. New York senator Jacob Javits, Labor Secretary Arthur Goldberg, and Roy Wilkins were also there.

J. Edward Lumbard, the chief judge of the Second Circuit, swore Marshall in and then told the large audience: “During the past twenty years few—if any—members of the American bar have had so varied an experience.” Lumbard said the late John W. Davis, Marshall’s opponent in the
Brown
cases, once predicted, “This fellow is going places.” Lumbard concluded, “All I need to say, is: Here he is.”
²

A smiling Marshall thanked his wife and President Kennedy. He promised to do his best. There were no hints that getting the Senate to confirm this nomination was going to be a grueling ordeal.

Behind the scenes, however, support for Marshall was fractured. Supreme Court Justice Felix Frankfurter had supported Bob Carter for a district court judgeship and was telling friends that Marshall was not qualified for the appeals court. Bill Coleman, Marshall’s friend and Frankfurter’s former clerk, got word of the negative comments. Full of concern, Coleman sent the justice a letter praising Marshall and asking him to hold off his criticism. Frankfurter responded, “I have said nothing to anyone that I did not say to you, and what I did say was merely to negative the perfectly absurd hallelujahs with which his nomination was greeted, as though a great lawyer had been elevated to the judiciary.” Frankfurter went on to express admiration for Bob Carter and noted that Carter had made “a deep impression” on several other Supreme Court justices, a compliment he did not extend to Marshall.
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Coleman wrote back, pleading with Frankfurter not to make his criticisms public. Coleman wrote that while he liked Marshall, he had “never stated that a great lawyer had been elevated to the judiciary.”
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Frankfurter ceased his public critique of Marshall, but similar comments were making the rounds in legal circles and on Capitol Hill. Marshall’s nomination remained in limbo until the Senate Judiciary Committee, chaired by the segregationist James Eastland of Mississippi, scheduled hearings. While waiting for the committee to act, Marshall began working as a federal judge. “I talked to him about writing opinions. This was something new to him,” Judge Lumbard said in an interview. “Well, I helped him with some opinions [because] he wanted to quote a lot of stuff, verbatim. He was a good beginner, he wanted to do things right. He was very cooperative and carried his share of the burden.”

Many of Marshall’s critics complained that he was expert in only one area of the law, civil rights. Lumbard said that was not a crippling problem. “We knew damn well he couldn’t have known much about corporate law, that was taken for granted, that was true of most of us,” he said. “He was diligent, he had good law clerks to help him.… It was a good thing to have somebody like Thurgood to be the first [black] man on the court. He was not abrasive, he didn’t have a chip on his shoulder. We all respected him.”
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Even with the chief judge’s respect, Marshall was not given his own office in the courthouse. Since he was not confirmed, Lumbard made no permanent arrangements to house him. Marshall and his staff had to find new office space every few days. “We had a pretty lousy set of spaces,” recalled Ralph Winter, a Yale law student and Marshall’s first clerk, who
later became a federal judge. “They weren’t judicial chambers, they were some bureaucratic offices. When another judge would go on vacation, we’d move down there.”
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As the low man on the circuit court, Marshall had to deal with the least interesting cases—taxes, corporate law, even the “Doctrine of Unseaworthiness in Admiralty.” He also did a lot of Wall Street securities cases because the other judges would recuse themselves when their stock ownership put them in a potential conflict of interest. Marshall joked with his friends that since he was a poor black man and had never owned any stocks, the other judges automatically assumed that he could hear all those cases.

A judge’s life was very different from the daily routine Marshall knew at the LDF. There were no wild characters coming in and out of his office. Marshall’s phones hardly rang, and there was almost no talk of the latest racial crisis. And while he got a raise (up $7,000 to $25,000 a year), he missed the sudden requests to jump on the next plane and walk into hostile courtrooms.

To remind himself of the old excitement, Marshall would occasionally take a twenty-minute subway ride uptown to the LDF’s offices to say hello. But those visits became fewer and fewer. As a judge he had to distance himself from the LDF’s legal cases and his successor. And in a painful act he had to pull away from his old friend Roy Wilkins. “He and Roy were so close,” recalled Cissy Marshall in an interview. “They were like brothers. He was closer to Roy than to his own brother. And then we had to cut all that out, cut it off.”

Marshall may have lost some friends, but he was an oddity who attracted attention in the staid corridors of the federal courthouse. Several of the secretaries would come by to see Marshall and even to get a glimpse of Alice Stovall, the first black secretary on the circuit. The new judge was extremely popular among law clerks. Every morning clerks from other judges’ chambers would come by to have coffee and listen to Thurgood Marshall stories. “He had a remarkable ability to take a situation fraught with violence and other terrible things and have a humorous end to them,” said Winter. “He could talk about things they never imagined,” added Stovall.