Excerpts

In the Oval Office, dominated by the president's massive mahogany desk, the unassuming Alexander had walked the same path as Ramsey Clark and Nicholas Katzenbach. Sitting by the side of the desk, Alexander in a soft voice had pressed him to make history by nominating Marshall to replace the retiring Clark. Johnson, again, did not say yes or no. Later, Alexander could only tell Marshall that he had put in a good word for him and not to worry about all the rumors. On June 12, 1967, his last day on the high court, Justice Tom Clark told reporters the president would appoint a replacement "who will fill my shoes to overflowing, possibly break them open."4 His comment sparked a new wave of rumors. Justice Clark's comments raised Marshall's hopes. But as his petite Hawaiian wife later told reporters, she had heard hints before, and "you can't live on hints."5 At the retirement party Johnson was his usual dominating self, alternately bullying and ingratiating himself with both justices and the politicians in the crowd. When Marshall made his way through the faces surrounding Johnson, the president quickly greeted him with a wide smile. The two men loved to drink bourbon and tell stories full of lies. They were the same age and had strong feelings for each other. So it was no surprise when the president threw a long arm around Marshall and briefly pulled him aside. Johnson bluntly told him not to get his hopes up because he was not going to replace Justice Clark. Marshall played it off with a laugh. Standing to his full height, he reminded Johnson that he didn't need a job and there had never been any promise he would get to the high court. Behind his bluster, however, Marshall felt a fierce determination to argue with Johnson right there. It was Marshall's style to apply pressure and fight. But this time he bit his tongue. It didn't make sense to think he could bully Lyndon Johnson in the middle of a party and win. He drove home, cutting across the Mall, with the U.S. Capitol's magnificent white dome glowing to one side and the towering Washington Monument on the other. The nation's grand symbols made him feel small, an outsider. He had missed his chance. The next morning, Tuesday, June 13, Marshall was in his office at the Justice Department on Pennsylvania Avenue when his secretary got a call from the attorney general. It was just before 10:00 a.m., and Clark told her he was coming down to see Marshall and to keep everyone else out. When Clark got into Marshall's office, he asked him what he was doing later that morning. Marshall replied that he was going to the White House to speak with a group of students. Clark told him to go over fifteen minutes early and stop in the Oval Office. Marshall pressed Clark to tell him what was going on. Clark said he didn't know. But given the spate of rumors over the last twenty-four hours and the disaster at the party, Marshall figured this trip was for Johnson to stroke him and tell him why he didn't get the job.6 Meanwhile, the president phoned Louis Martin at the Democratic National Committee that morning and asked him to come to the Oval Office. Before Martin's arrival Johnson placed another call. He told Clifford Alexander to come over as well. Alexander was the first to arrive. He found Johnson sitting in a rocking chair in front of a circular marble coffee table in the middle of the Oval Office. The president was holding handwritten notes on large white index cards. Listed were the names of key members of the Senate Judiciary Committee; the Senate leaders, including Mike Mansfield and Everett Dirksen, the majority and minority leaders; Chief Justice Earl Warren; and a tally of Marshall's record in cases argued before the Supreme Court. Highlighted on one card was the fact that Marshall had been first in his class at Howard Law School. Alexander could barely contain his glee when he realized what was going on. With Alexander standing by, the president, using the white phone built into the coffee table, called Vice President Hubert Humphrey, informing him of the decision. Then Johnson, alternately leaning forward and pushing back as he spoke, called the man who was sure to be the leader in any confirmation fight in the Senate, James Eastland of Mississippi, a hard-line segregationist. "That conversation was mostly in monotone," Alexander recalled. "President Johnson said to him, 'I know you must agree that this is the best-qualified person.' " Johnson then called several more senators. Alexander remembered the conversations all ended the same way: "I am sure with this distinguished record that you will support his nomination." No one, neither Republican nor Democrat, argued. There was hardly any reason for discussion. Johnson had made up his mind, and he spoke with presidential authority. He was not asking for anyone's support. "God knows by the time he finished his monologue, the people at the other end of the phone had to think about what they had agreed to," said Alexander. Louis Martin soon came in and stood with Alexander as the president called Earl Warren, who was in San Francisco. Warren gave his approval to the nomination and later sent a note thanking Johnson for early notice of the nomination. With the calls finished, Johnson asked Alexander and Martin to wait outside while he spoke with Marshall alone. Marshall had been next door since 10:45, talking with Marvin Watson, Johnson's appointments secretary. Watson played dumb when Marshall asked him why the president wanted to see him. When he was finally called into the Oval Office at 11:05, Marshall saw Johnson, all by himself, bent over the news service ticker-tape machine. While Marshall waited for the president to turn around he quickly glanced about the Oval Office. In the far corner was a bronze caricature of a frenetic President Johnson running while holding a phone in one hand. On the marble coffee table Marshall could see a bunch of index cards and papers, some of which had spilled onto the green rug under the president's rocking chair. Nervously, Marshall coughed to get the president's attention. Johnson spun around, as though surprised, and said, "Oh, hi, Thurgood. Sit down, sit down." Marshall moved toward the couch and sat next to Johnson's rocking chair. Johnson made small talk with the fidgety Marshall until he abruptly turned to him and said,  "You know something, Thurgood? . . . I'm going to put you on the Supreme Court." Marshall was stunned. All he could say was "Oh, yipe!"7 Johnson laughed and had Martin and Alexander come back into the office. They sat on the couch across from Marshall, with the president occasionally leaning forward in the rocking chair. Johnson joked with Marshall that he appointed him to the Supreme Court because "you are very much like me--brought up in poverty . . . not a Harvard boy like Cliff." Alexander later recalled thinking to himself that Marshall was not brought up in poverty, but that was the image he gave off. For nearly an hour a giddy Marshall joked around, never moving far from the president's rocking chair even as Johnson made phone calls to ecstatic civil rights leaders. Marshall shook his head and laughed at Johnson's trickery as he recalled for Martin and Alexander that just the night before, the president had told him he would not get the job. Johnson just smiled. At noon Johnson led his new nominee out the French doors behind his desk and into the bright June sunshine. The minute the reporters in the Rose Garden saw Marshall, they knew what was coming. His nomination, while historic, somehow was expected because it had been rumored for so long. "I have just talked to the Chief Justice and informed him that I shall send to the Senate this afternoon the nomination of Mr. Thurgood Marshall, Solicitor General, to the position of Associate Justice of the Supreme Court," Johnson said. "He has argued nineteen cases in the Supreme Court since becoming Solicitor General. Prior to that time he had argued some thirty-two cases. 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. . . . "I believe he has already earned his place in history, but I think it will be greatly enhanced by his service on the Court," continued Johnson. "I believe he earned that appointment; he deserves the appointment. He is best qualified by training and by very valuable service to the country. I believe it is the right thing to do, the right time to do it, the right man and the right place." Surprisingly, there was no express mention of the fact that Marshall was black, just Johnson's singular focus on his legal record and an expression of doing the "right thing," a quick jab at critics, particularly southern senators, who might oppose the idea of putting a black man on the nation's highest court. The president, with Marshall by his side, then began a twenty-minute news conference, most of which, incredibly, had nothing to do with the nomination. Reporters asked about Vietnam, the Middle East, and riots in the big cities. Finally, a reporter asked Johnson if he had been advised to name a more conservative nominee than Marshall. President Johnson shook his head and said, "No, I received very little pressure of any kind in this connection." The American Bar Association found Marshall "highly acceptable," Johnson added. Another reporter jumped in: "I was just going to ask Justice Marshall, if we might, how he feels about this appointment?" Johnson, turning to Marshall, responded: "I hope the justice doesn't go into an extended news conference before his confirmation." Marshall, who was almost as tall as the president, then stepped forward, bent over the microphone, smiled, and looking out through thick, black-framed eyeglasses said: "You speak for me, Mr. President, we will wait until after the Senate acts."8 The president and Marshall, arm in arm and smiling, then marched with long, loping strides back into the Oval Office, where Marshall asked the president for permission to tell his wife the good news before she heard it on the radio. Johnson, with a startled look, said he was surprised Marshall had not already told her. "How could I, sir?" Marshall asked. "I've been with you all the time." Marshall rang up his wife from a phone on the circular coffee table, and an eager Johnson grabbed for the receiver. "Cissy, this is Lyndon Johnson. . . . I just put your husband on the Supreme Court." The stunned wife replied, "I sure am happy I'm sitting down."9 To Marshall's surprise, the next morning's newspapers did not greet the nomination with high praise. It was "rich in symbolism," said The New York Times. But the paper did not give Marshall high marks as a legal thinker, saying he was not particularly distinguished either as a federal judge or as solicitor general. Newsweek magazine said President Johnson did not have to mention at his press conference that Marshall would be the first black on the Court. In a week of race riots across the nation, for the president to choose a black man to sit on the high court looked to a lot of people like a deft political move by a master politician. And there was the chance that the nomination could win back liberal white voters, who were increasingly turning away from Johnson over the Vietnam War. With a potential primary challenge from Sen. Robert Kennedy next year, Johnson had tied up the black vote, the magazine concluded. Newsweek did laud Marshall as a black leader who "in three decades . . . has done as much to transform the life of his people as any Negro alive today, including Nobel Laureate Martin Luther King, Jr."10 One faint line of praise for Marshall's nomination came from conservatives who thought it might stop wild-eyed black people from rioting. An editorial in the Las Vegas Sun didn't have much good to say about Marshall but celebrated the fact that his nomination "pretty much negate[s] the complaints of the Negro multitudes. . . . It is hoped the significance is not lost on the Martin Luther Kings and the Stokely Carmichaels and their rampaging followers."11 While cheering for the nomination was polite at best in most papers, the voices of criticism were full-blooded. The Chicago Sun-Times wrote that lawyers would be keeping an eye on Marshall "because he has been subject to criticism for laziness by those who dealt with him as Solicitor General and Circuit Court Judge."12 Joseph Kraft, the preeminent Washington columnist, wrote Marshall's only qualification was that he was "a Negro, not just any Negro [but] not even the best qualified Negro."13 The administration quickly responded to the critics by emphasizing Marshall's strong belief in the law and racial integration. Johnson and his top aides transformed Marshall into a living symbol of racial progress and good American race relations. Two weeks after his nomination and before any Senate hearings began, the White House arranged for Marshall to be appointed to a special commission to study whether crime and violence were the cause of rioting in Harlem. The leaders of the liberal white establishment were embracing him as their answer to angry blacks who said whites never gave a black man a chance. And yet a strong undercurrent of criticism of Marshall--he was unqualified, lazy, too liberal--continued. Marshall came under the most brutal attack from segregationists, who did not want an integrationist on the Court. President Johnson's political strategy to have Marshall quickly and easily confirmed was crumbling. And even Marshall's tough-mindedness, his amazing will to win, seemed to be overmatched. Hearings for most Supreme Court nominees began within a week of the nomination. Byron White, President Kennedy's first candidate for the Court, had been nominated and confirmed within eight days. Abe Fortas, President Johnson's first, had to wait only fourteen days. Thurgood Marshall was different. It would be seventy-eight days before his name would come up for a vote of Senate confirmation. In the two and a half months between the nomination and the vote on Marshall, his record as a lawyer, his writings, his drinking, the women he slept with, and his family came under the intense scrutiny of FBI and Senate investigations. Sen. Robert Byrd, Democrat of West Virginia, wrote to FBI director J. Edgar Hoover, asking if there was information about Marshall's ties to Communists. Another senator focused on uncovering evidence that Marshall hated whites; other senators loaded up on detailed legal questions, hoping to reveal gaps in Marshall's knowledge of the law that would disqualify him for the high court. But the larger topics for Marshall's opponents were still left unanswered: Who was this man? How did a black man so despised by millions of segregationists rise past Jim Crow political power to become a federal judge, the first black solicitor general, and finally to stand at the door of the highest station of American law, the Supreme Court? Simply put, where did this Negro come from? Excerpted from Thurgood Marshall: American Revolutionary by Juan Williams All rights reserved by the original copyright owners. Excerpts are provided for display purposes only and may not be reproduced, reprinted or distributed without the written permission of the publisher.