So Good that Thurgood was Confirmed

The recent confirmation hearing for the newest Associate Justice of the Supreme Court had, to say the least, its share of notoriety. Here is a look back at the confirmation of Thurgood Marshall and the noteworthy accomplishments of his career. Enjoy!

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69 yeas, 11 nays.

That was the vote count August 30, 2017, when the United States Senate confirmed the nomination of Thurgood Marshall to be the 96th Associate Justice of the United States Supreme Court, and – to use the racial identity tag common to the era – its first Negro. Nine days earlier, the Senate Judiciary Committee favorably reported his nomination after five arduous days of confirmation hearings in July.

The committee began its deliberations at 11:00 a.m. in room 2228 on Thursday, July 13, 1967 in the New Senate Building (now the Dirksen Senate building). A letter from the American Bar Association called Marshall “highly acceptable from the viewpoint of professional qualifications.” Remarks by Senator Edward M. Kennedy made their way into the full committee report published on August 21st.

When this committee meets later to vote on the confirmation of Mr. Thurgood Marshall…it will indeed be a historic occasion. History will be made not so much because we will be recommending the confirmation of the first member of the Supreme Court who is a Negro, but because we will be recommending the confirmation of a man who is uniquely qualified and, one might say, perfectly prepared to become a Supreme Court justice [emphasis added.]

“Highly acceptable” and “perfectly prepared” were apt descriptions of the man who had come to be known by many as “Mr. Civil Rights.”  After all, as lead counsel for the NAACP, he had argued a total of thirty-two cases before the Supreme Court, winning all but three of them, an accomplishment President Lyndon Johnson, who nominated Marshall to the Court, called a batting average of .900. In addition, Marshall had served as a Judge on the United States Court of Appeals for the 2nd Circuit (where none of his opinions were overturned) and as Solicitor General of the United States (where his winning percentage increased).

His confirmation to the nation’s highest court began with experiences of the lowest kind.

A REBEL FROM THE START

Thurgood Marshall was born July 2, 1908, the second son to William and Thurgood-Marshall-Early-LifeNorma Marshall. His reputation as a sort of rebel started early. As a second grader at Henry Highland Garnett Elementary school (P.S. 103), he changed the spelling of his birth name, Thoroughgood, because he got tired of writing it out. “In Baltimore where I was brought up,” he said once, “we lived on a respectable street, but behind us there were back alleys where the roughnecks and the tough kids hung out. When it was time for dinner, my mother used to go to the front door and call my older brother (Aubrey). Then she’d go to the back door and call me.”

But it was his remembrances of Jim Crow treatment that stuck with him the most. Like the times he would watch the mistreatment of black workers when he accompanied his father to his job as a steward at the Gibson Island Club. Or the time he could not use a public restroom and only made it to the steps of his front door before nature had its way. Later, when he demonstrated an interest in argument and debate, William Marshall would take his young son downtown to visit the courthouse to watch the cases. Witnessing the rampant discrimination in the court proceedings, his father would tell him, “anyone ever calls you a nigger, you got my permission to have it out with him right then and there.” These trips to the courthouse fueled his desire to become a lawyer, and it was his recall of those experiences that ignited the embers for just treatment.

After graduating from Lincoln University, Marshall enrolled in the Howard University School of Law, finishing at the top of his class. He had wanted to attend law school at the University of Maryland but did not apply because of the school’s policy of racial exclusion. He would take special pride, when in 1936, he and his mentor Charles Hamilton Houston successfully litigated the case Murray v. University of Maryland, gaining the admission of Donald Murray to the University of Maryland law school.

After graduating from Howard, Marshall began to practice law and wasted no time in beginning the legal crusade that would be his life’s work. In 1933, he wrote to Maryland Senator Millard Tydings, whose son Joseph Tydings, would later serve on the Senate Judiciary Committee voting for Thurgood Marshall’s confirmation. In the letter, he urged the elder Tydings to support anti-lynching legislation attacking head-on the Senator’s repeated assertion of states’ rights as a reason why he was hesitant to support the bill.

Permit me to remind you that this argument is never raised when the dominating element of a state comes to the federal government begging for loans or financial assistance. The local papers have been carrying stories every day of you, with hands outstretched, bending every effort to secure additional funds from the federal government to aid your state, yet when a measure is proposed to curtail the exploitation of the helpless – to protect them in their lives and property – you raise the same outstretched hands in defense of state rights.

MARSHALL TO THE DEFENSE

Marshall joined the NAACP as Assistant First Counsel in October 1936 beginning a twenty-five year sojourn to make America a more perfect union. One of his first cases was a suit against the Anne Arundel County school system to equalize pay for teachers, a victory that brought him personal satisfaction when he reflected that his mother had been a schoolteacher. Issues like these were rooted in the doctrine of separate but equal, the noxious and odious principle that had been impersonating the fourteenth amendment’s guarantee of equal protection of the laws since 1896. Marshall would lead a squadron of legal talent across the nation with one aim; dismantling bit by rotten bit the legal fiction that served to deprive citizens of their constitutional and civil rights.

Hayes, Marshall, and Nabritt

Marshall, center, with George E.C. Hayes, and James Nabritt, Jr. celebrating after the Brown V. Board of Education decision.

It would take two decades of crisscrossing the country – filing, arguing, defending, and appealing more than three dozen lawsuits – fending off death threats, and operating on a shoe-string budget. However, on May 17, 1954, the lawyers hit their target. In the landmark decision Brown v. Board of Education, the United States Supreme Court held the doctrine of separate-but-equal to be in violation of the Fourteenth Amendment. In grand fashion, by unanimous vote, and with undeniable clarity, the Court said:

Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other “tangible” factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does. We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated…are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.

Brown would of course be the most famous of Marshall’s cases, but he considered Smith v. Allwright, the decision that outlawed discrimination in voting in primary elections, the most important.

Thurgood Marshall Seated And Talking

He was widely known for his boisterous laughter and raucous storytelling. When he was in an especially playful mood, he would sign memos as “TM.” In one instance, writing to his staff describing the new case in Texas that would become Smith v. Allwright, he said that “one of our leaders here was told that the powers that be cannot afford to let a ‘northern nigger’ win a case against them so they want to settle it. Will you all please respect the fact that I am now a northern nigger.”

He remained head of the NAACP Legal and Educational Defense Fund as Director-Counsel until 1961 when President John F. Kennedy appointed him Judge of the 2nd Circuit Court of Appeals. President Lyndon Johnson appointed him Solicitor General of the United States – the government’s top lawyer – in 1965, a position he would hold until his nomination to the United States Supreme Court in 1967.

Sen. Kennedy was indeed correct when he noted the historic nature of Marshall’s confirmation. But it was more than historic – it was right, it was deserved, and it was needed. Even today, his sentiments are an example of wise counsel.

After President Harry Truman’s commencement address at Howard University where he urged Congress to enact civil rights legislation he submitted in 1948, Marshall wrote to him saying:

During periods when civil rights are being shamelessly kicked around, we need…your stand as a real President in the true American tradition.

It would seem that his words are just as needed now.

When Marshall was confirmed by the full Senate on August 30, 1967, Senate Majority Leader Michael Mansfield noted that “Thurgood Marshall’s rise to the Supreme Court reaffirms the American ideal…This is a shining hour for the United States of America. We have come a long, long way toward equal access to the Constitution’s promise. We shall go further along that way because we have recognized the work and the dedication and the commitment of Thurgood Marshall.”

We are reminded of the work Thurgood did, and to do the good that remains. Thank you, TM.

Thurgood Marshall statue

Statue of Thurgood Marshall on lawyer’s mall near the Maryland State House

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