August 30, 2017

50 years ago today: The Senate confirms the nomination of Thurgood Marshall to the Supreme Court.

"On June 13, 1967, President Johnson nominated Marshall to the Supreme Court...  Marshall was confirmed as an Associate Justice by a Senate vote of 69–11 on August 30, 1967. He was the 96th person to hold the position, and the first African American."

37 Democrats and 32 Republicans voted for Marshall. 10 of the 11 negative votes were Democrats. The other negative was Strom Thurmond. One of the negative votes came from Senator Sam Ervin, who spoke for over an hour. Here's how the NYT put it:
And here's how the front page looked:

69 comments:

rcocean said...

He was one of the most liberal, worst, SCOTUS judges ever.

But he was the first Black SC justice AND a courageous man - so there's that.

So, I'd taken him any day over Douglas, Brennan, or Ginsburg.

rcocean said...

When is the New York Times going to celebrate the day Clarence Thomas was confirmed?

Bay Area Guy said...

Democrat Robert Byrd opposed Marshall's nomination, but then rose to become Democrat Senate Majority/Minority Leader from 1977 to 1989 -- 12 years.

Who knew that a racist former Klansman was heading the Democrats in the Senate for so long?

Bushman of the Kohlrabi said...

The NYT used the term "Negro"?

Since we're removing statues of supposed racists, perhaps we should consider forcing the Times out of business.

Jack Wayne said...

20 Senators did not vote: 17 Democrats and 3 Republicans. So, 37 of 64 Democrats and 32 of 36 Republicans. Yet, Democrats won the propaganda war and it is the Republicans who are racists.

The Godfather said...

Ervin's prediction was borne out by events.

Sebastian said...

"Ervin's prediction was borne out by events." With Brennan on the Court, it was bound to.

traditionalguy said...

And then we had many years of Marshall Law.

Bay Area Guy said...

Marshall was not a good Justice. This was not because he was black. But because he was way too liberal.

Left Bank of the Charles said...

A Thurgood Marshall statue would be another great addition to Emancipation Park. General Lee could sit there on his horse with his hat in his hand looking across at Justice Marshall wielding a copy of the Constitution.

Humperdink said...

"This was not because he was black. But because he was way too liberal."

I said this about Obama and I have the word "racist" branded on my forehead.

khematite said...

Interesting that six Southerners did vote to confirm Marshall: four Democrats (William Fulbright of Arkansas, Albert Gore [Sr.] of Tennessee, Ralph Yarborough of Texas, and William Spong of Virginia) and two Republicans (Howard Baker of Tennessee and John Tower of Texas).

Five Southern Democrats (John McClellan of Arkansas, George Smathers of Florida, Richard Russell of Georgia, B. Everett Jordan of North Carolina, and Harry Byrd of Virginia) cast no vote. In normal circumstances, all would probably have voted against Marshall, so their abstentions were probably a tribute to LBJ's continuing influence with that group of senators.

Chuck said...

One of the most outlandish political deals in modern American history.

LBJ wanted to put Thurgood Marshall on the Supreme Court.

There weren't any vacancies on the court.

LBJ calls Associate Justice Tom Clark, and asks him to retire early, to create an open seat for Marshall. Clark has absolutely no personal reason to agree to the request. So LBJ creates a reason. LBJ tells Justice Clark that he will make Clark's son, Ramsey Clark, the Attorney General of the United States, replacing Bobby Kennedy.

So Justice Clark agrees.

And thanks to the subsequently-released Oval Office telephone recordings of LBJ, there is no doubt whatsoever about this deal. A year earlier, LBJ had brought Marshall to Washington as his newly-appointed Solicitor General, to serve for a year or so while Abe Fortas was nominated to fill the vacancy left by Justice Arthur Goldberg. The idea then was to groom Marshall for the Supreme Court. And by picking Ramsey Clark to be Attorney General after that. (With his father Tom still on the Supreme Court, LBJ was able to make it look like the promotion of Marshall to the Court was a natural choice, and also made it look like Tom's retirement was made to look like he was just removing an impediment from his son serving as Attorney General).

southcentralpa said...

So, did 20 vote 'present', or ... ?

khematite said...

Chuck said:
So LBJ creates a reason. LBJ tells Justice Clark that he will make Clark's son, Ramsey Clark, the Attorney General of the United States, replacing Bobby Kennedy.

Just a side note, but Bobby Kennedy had already been serving in the Senate for a couple of years by that point. Ramsey Clark succeeded Nicholas Katzenbach.

Bay Area Guy said...

In Flawed Giant by LBJ Biographer, Robert Dallek:

".. that Johnson explained his decision to nominate Thurgood Marshall to the Supreme Court rather than a less famous black judge by saying, 'when I appoint a nigger to the bench, I want everybody to know he’s a nigger.'”

LBJ was a Democrat President, you know.

Chuck said...

khematite said...
Chuck said:
So LBJ creates a reason. LBJ tells Justice Clark that he will make Clark's son, Ramsey Clark, the Attorney General of the United States, replacing Bobby Kennedy.

Just a side note, but Bobby Kennedy had already been serving in the Senate for a couple of years by that point. Ramsey Clark succeeded Nicholas Katzenbach.

Yeah; you are right. My bad on that point.

eddie willers said...

LBJ was a Democrat President, you know.

I like how Democrats changed his, "I'll have those niggers voting Democrat for 200 years" into: "I've lost the South".

Mattman26 said...

Robert Byrd was a non-Southerner? Good to know.

Big Mike said...

IMHO as a layman and not a lawyer, Thurgood Marshall seemed not to pay very much attention to the law, but a lot of attention to what is the black interest on the case. As a jurist, Clarence Thomas is worth several dozen Thurgood Marshalls.

Bay Area Guy said...

To his credit, ex-Klansman, Democrat leader, Robert Byrd, did apologize profusely for his membership in the Klan. And, in a normal world, apologies generally should be accepted.

Don't know if Democrat Leader Robert Byrd ever apologized for his filibustering the Civil Rights Act of 1964 or opposing Thurgood Marshall to SCOTUS.





Jay Elink said...

In later years, when Marshall had bladder problems, his clerks referred to him as "the Dark Incontinent."

I swear it's true.

Gahrie said...

Racist he might have been, but Ervin was right.

Gahrie said...

Justice Marshall wielding a copy of the Constitution.

If Justice Marshall was sculpted with the Constitution, he'd either be wiping his ass or lighting a cigar with it.

Bob Ellison said...

Brown was a travesty. Not a lotta reasoning there. Just early social justicism. That's what got Marshall to the SCOTUS.

Roger Sweeny said...

And then all was forgiven and Ervin became a folk hero when he headed the committee that got Richard Nixon.

David Begley said...

In light of LBJ and the Clark deal, does Tony Kennedy have children who want a big government job? Ambassador?

victoria said...

Southern Democrats.... Like the Southern Republicans of today.


Vicki From Pasadena

Earnest Prole said...

The NYT used the term "Negro"?

At that time it was considered the most polite and proper term. Don't they teach this stuff in high school anymore?

Gahrie said...

Southern Democrats.... Like the Southern Republicans of today.

Southern White Republicans are electing people of color all across the South.

Molly said...

Thanks to Chuck at 4:29 for the history lesson reminders.

I'm a little shocked that this was 1967. I remember being challenged by my 11th grade history teacher to name the supreme court members, and I'm sure I didn't get them all, but I remember saying among others "White, Black, and Marshall (who is black)." Because Marshall had such an important role in Brown, I must have thought he'd been on the court for a long time. So am I right? -- 15 years between the Brown argument and his being appointed to the court? And he wasn't a federal judge right? Soliciter General for a couple years during those 15?

And the reason I'm especially interested in Chuck's reminder is that LBJ was really active in persuading supreme court justices to resign He earlier had created a vacancy for Abe Fortas by "promoting" Goldberg to the UN (how Arthur Goldberg must have regretted that decision!). Fortas was later nominated by LBJ as chief to replace Earl Warren; but that failed because of cloture (!!) and during the 1968 presidential race, and the position was filled by Nixon after his 1968 election. Until I started writing this comment, I didn't know that Fortas died in May 1969 (just months into Nixon's presidency), and that he was age 72 at death. (GInsberg 84, Kennedy 81, Breyer 75, all others are younger than 72).

Would anyone like to speculate what kind of reaction there would be if Trump used any kind of tactics like this to persuade Kennedy, Ginsburg, or Breyer to resign in order to create a vacancy? But Johnson did it twice.

David said...

Marshall's most consequential greatness was in his career as a lawyer. He was intelligent, persistent and unbowed by the criticism and opposition that he received. He generated confidence and was the unquestioned leader of the battles against segregation in the courts. He was also patient, understanding that the jurisprudence on race that he was seeking could not be created immediately with a few dramatic cases. It was a long road to Brown v. Board, which was clearly a correct decision on separate but equal. Yet it might not have been decided that way without the foundation that Marshall and others provided.

Brown v. Board was flawed (inevitably I think) by it's enforcement mechanisms. The "all deliberate speed" concept was needed to provide a unanimous Court. It's often said that this enforcement concept was the source of all the confusion and conflict over enforcement, but I think that the change was so fundamental that the same difficulties would have arisen no matter what the remedial standard.

It did come as a shock to many in the north that Brown applied to their territory too. They made sure to avoid repeating that mistake in the Voting Rights Act, which essentially does not apply in the north and certainly had a influence on permitting the racial gerrymandering in Congressional districts that the Democrats instituted but now complain of.

chickelit said...


".. that Johnson explained his decision to nominate Thurgood Marshall to the Supreme Court rather than a less famous black judge by saying, 'when I appoint a nigger to the bench, I want everybody to know he’s a nigger.'”

LBJ was a Democrat President, you know.


After the JFK murder and after LBJ unsuccessfully tried to take the President's quarters from Jackie at Love Flied, there was no stopping that man. It's really too bad LBJ wasn't assassinated himself or at least died a very painful death. He was all around bad for America. we should take down his statues.

SukieTawdry said...

Thurgood Marshall and Barack Obama are the two most significant "first blacks" in our nation's history. Why-oh-why did both have to be such liberal tools?

I like how Democrats changed his, "I'll have those niggers voting Democrat for 200 years" into: "I've lost the South".

I spelled out that quote in the comments section of American Thinker once. I got banned for life.

Michael K said...

"Who knew that a racist former Klansman was heading the Democrats in the Senate for so long?"

I'm listening to Robert Caro's biography of Johnson as I commute to Phoenix and back.

Today was his chapters of volume four on the history of the Senate. He points out that the seniority system, which determined all committee assignments and chairmen since about 1830 until after World War II, left the Southern Senators in command of all the committees and helped them to resist integration as long as they did.

Johnson was a rabid southern racist until he became Majority Leader with the aid of Richard Russell of Georgia. After that, he either returned to his New Deal roots or took advantage of the Civil Rights Movement to advance his career.

There is little to suggest he was sincere in anything he did.

Abe Fortas was a major Johnson aide and was instrumental in his theft of the 1948 Senate election.Fortas came up with the strategy to get Hugo Black, a Supreme Curt Justice and former Klansman, to block a federal court judge from voiding Johnson's win.

And although a Federal District Court had ordered his name off the ballot pending an investigation, the order was voided by Associate Supreme Court Justice Hugo Black on a petition from Abe Fortas, who was Johnson's chief lawyer.

Johnson was trying to reward Fortas, a partisan and liar.

D.E. Cloutier said...

1. Re: Bay Area Guy at 4:41 p.m.

Do you remember Dallek's source for that Johnson quote, Bay Area Guy? I covered Civil Rights as a young white newspaperman in the 1960s. (White readers called me a troublemaker in those days). I never heard Johnson use the word "Negro" or "Nigger." I did hear him say "Nig-ra" frequently. At the time I thought it was an attempt to keep white Southerners on his side without offending white Northerners.

2. All the big daily newspapers used the word "Negro" (with a capital N) in those days.

3. One Pennsylvania daily had an African American gossip column in the 1940s. The title of the column: "Doin's Among the Colored Folks."

4. I remember a joke among white Southerners about an African American man who asked for a drink at a crowded, low-class, whites-only bar in the racially segregated South during the 1950s.

"What do I do?" the bartender asked the owner.

"Tell him drinks are $10 each," the owner said.

The African American man bought one drink.

The next day the African American man returned.

"What do I do now?" the bartender asked the owner.

"Tell him drinks are now $20 each," the owner said.

The African American man paid $20 for one drink.

After the departure of the African American man, the bartender asked the owner, "What do I do if he comes back tomorrow?"

"Sell him a drink for $20," the owner said, "and then clear all this white trash out of here."

Chuck said...

Molly said...
Thanks to Chuck at 4:29 for the history lesson reminders.

I'm a little shocked that this was 1967. I remember being challenged by my 11th grade history teacher to name the supreme court members, and I'm sure I didn't get them all, but I remember saying among others "White, Black, and Marshall (who is black)." Because Marshall had such an important role in Brown, I must have thought he'd been on the court for a long time. So am I right? -- 15 years between the Brown argument and his being appointed to the court? And he wasn't a federal judge right? Soliciter General for a couple years during those 15?

And the reason I'm especially interested in Chuck's reminder is that LBJ was really active in persuading supreme court justices to resign He earlier had created a vacancy for Abe Fortas by "promoting" Goldberg to the UN (how Arthur Goldberg must have regretted that decision!). Fortas was later nominated by LBJ as chief to replace Earl Warren; but that failed because of cloture (!!) and during the 1968 presidential race, and the position was filled by Nixon after his 1968 election. Until I started writing this comment, I didn't know that Fortas died in May 1969 (just months into Nixon's presidency), and that he was age 72 at death. (GInsberg 84, Kennedy 81, Breyer 75, all others are younger than 72).

Would anyone like to speculate what kind of reaction there would be if Trump used any kind of tactics like this to persuade Kennedy, Ginsburg, or Breyer to resign in order to create a vacancy? But Johnson did it twice.

And thanks to you for that supplement!

You had it pretty much all right about Marshall's public career; after Brown v. Board of Education of Topeka, he remained in private practice for several years (but very much in the mix of high-profile civil rights cases as counsel for the NAACP) until Kennedy recess-appointed him (over a Dixiecrat filibuster) to the Second Circuit in New York. He was at the Second Circuit (later getting a real confirmation) until LBJ nominated him as Solicitor General. Then, to the SCOTUS.

Michael K said...

" I did hear him say "Nig-ra" frequently. At the time I thought it was an attempt to keep white Southerners on his side without offending white Northerners. "

"Nigra" was the usual pronunciation by southerners at the time and was hated by blacks every bit as much.

More from Caro's magnificent biography. I recently read an interview in some paper, maybe the NY Times, concerning Caro's age. He is in his late 70s and his editor asked him if he would ever finish. The editor is 84 and says he doesn't know if he will make it to the end.

SukieTawdry said...

Would anyone like to speculate what kind of reaction there would be if Trump used any kind of tactics like this to persuade Kennedy, Ginsburg, or Breyer to resign in order to create a vacancy? But Johnson did it twice.

I heard Obama's people tried to put a little pressure on Ginsburg, but she would have none of it.

Yep, "nigra" was the pronunciation all my southern relatives used (when they were in "polite" society).

SukieTawdry said...

3. One Pennsylvania daily had an African American gossip column in the 1940s. The title of the column: "Doin's Among the Colored Folks."

"Colored" was used quite a bit. Even up to the late 60s it wasn't considered pejorative. The film Guess Who's Coming to Dinner (1967) used the word quite a lot.

Earnest Prole said...

All the big daily newspapers used the word "Negro" (with a capital N) in those days. One Pennsylvania daily had an African American gossip column in the 1940s. The title of the column: "Doin's Among the Colored Folks."

Jules Feiffer captured this in a 1967 cartoon which for obvious reasons is MIA on the internet. ''As a matter of racial pride we want to be called blacks. Which has replaced the term Afro-American. Which replaced Negroes. Which replaced colored people. Which replaced darkies. Which replaced blacks.''

Bay Area Guy said...

@D.E. Cloutier,

Do you remember Dallek's source for that Johnson quote, Bay Area Guy?

It's on page 441 of the Dallek book - the context is LBJ talking to a young Texan attorney, on John Connolly's staff. There's a footnote (143), which states LBJ interview with Wallace Terry, June 15, 1967, and there's a reference to WCHF Aides: Christian, which I don't quite get. Whew

Unknown said...
This comment has been removed by the author.
n.n said...

Color diversity, then. Color diversity, now. Color diversity, progressive.

A wide, liberal divergence from the moral principle of individual dignity (e.g. judge a person by the content of their character).

Hagar said...

Thurgood Marshall was a great defense lawyer, but that should be disqualifying for a judge and a poor indication for a Supreme Court justice.

n.n said...

Was Marshall always a liberal or did he progress to that ideological state?

Apparently, it's a hard problem bordering on wicked to discover a man or woman with principles that can be reconciled (i.e. the antithesis of Pro-Choice).

D.E. Cloutier said...

1. Michael K: "'Nigra' was the usual pronunciation by southerners at the time and was hated by blacks every bit as much."

I lived in North Carolina for several years in the 1950s. I didn't hear it in North Carolina, Virginia, or Florida back then. I don't know about South Carolina and Georgia because I didn't chat with anyone during my travels through those two states. And I don't know about Texas and the other Southern states because I didn't visit them until the 1970s.

I came from a political family. As a teenager I helped the (John F.) Kennedy campaign do political surveys in North Carolina, Virginia, and Florida, so I talked to a lot of people in those three states.

When I became old enough to vote, I became a Republican.

2. Sukie Tawdry: "Yep, "nigra' was the pronunciation all my southern relatives used (when they were in 'polite' society)."

Were they copying LBJ or did they use it before his presidency?

3. Bay Area Guy, thank you for taking the time to get the info.

SukieTawdry said...

No, it predated LBJ. My recollections are from the 50s and early 60s.

D.E. Cloutier said...

Thanks for responding, Sukie Tawdry.

Michael K said...

I did not live in the South so my information is from books about the time.

Caro discusses this about Johnson in his biography.

The audio books version is excellent and includes a lot of pronunciation.

My wife wants me to start it all over when we drive over to CA this fall. We have two round trips which might be enough for two books.

So far, I have gone through a couple of books about the French Revolution and several Bernard Cornwell novels. Also Chernow's Alexander Hamilton biography.

D.E. Cloutier said...

Michael K, I'm a Bernard Cornwell fan, too.

Michael K said...

" I'm a Bernard Cornwell fan, too."

One problem with the audio books of his India novels is the pronunciation is accurate but hard for me to understand. The reader is terrific with accents but too good for me.

Mr. Majestyk said...

Michael K mentioned Chernow's biography of Alexander Hamilton. It was excellent (I listened to the audio version). Highly recommended.

Big Mike said...

"And then the arrows flew."

Cornwell's Agincourt is one of the best books I've ever read. Warning for the sensitive among us who might want to read it, nearly every woman in the book is either raped or the victim of attempted rape. But that was the reality of war before the modern era.

Robert Cook said...

"When is the New York Times going to celebrate the day Clarence Thomas was confirmed?"

What's to celebrate? How has he distinguished himself as a jurist? He's just one more of the many mediocrities who have served on the Court.

Mr. Majestyk said...

Yeah, just making shit up out of thin air to reach the desired result--THAT'S worth celebrating.

Robert Cook said...

"I said this about Obama* and I have the word "racist" branded on my forehead."

But, rhetoric aside, judged only by his governance, Obama wasn't "too" liberal at all--he wasn't even liberal! This is part of why he was terrible...he was elected by fooling people into believing he was someone and something he wasn't, and he betrayed their trust and belief in him. However, as with those who inexplicably like Trump, they couldn't see past their illusions about him, despite his true nature being quite clear to see.

SukieTawdry said...

Clarence Thomas has distinguished himself by being true-blue to the Constitution.

Gahrie said...

Would anyone like to speculate what kind of reaction there would be if Trump used any kind of tactics like this to persuade Kennedy, Ginsburg, or Breyer to resign in order to create a vacancy? But Johnson did it twice.

How about if Trump appointed Tillerson to the Supreme Court? When the controversy later dealt with in Marbury V Madison was happening, John Marshall was both the Secretary of State and the Chief Justice of the Supreme Court.

Gahrie said...

But, rhetoric aside, judged only by his governance, Obama wasn't "too" liberal at all--he wasn't even liberal!

Going by the classical definition of "liberal" this is very true. However he certainly was Progressive and Leftist.

Gahrie said...

What's to celebrate? How has he distinguished himself as a jurist? He's just one more of the many mediocrities who have served on the Court.

Bull fucking shit. Just because he hasn't invented any new or novel ways to interject his own desires into the law doesn't mean he is mediocre.

Gahrie said...

You can often tell when a Black organization was formed by it's title.

Could you imagine the United Negro College Fund today? Or the National Association for the Advancement of Colored People?

I Have Misplaced My Pants said...

OT, but another agreement that Bernard Cornwell is phenomenal.

Hyphenated American said...

"What's to celebrate? How has he distinguished himself as a jurist? He's just one more of the many mediocrities who have served on the Court."

I believe there was an article in NYT which claimed that Clarence was one of the most influential judges in the last few decades.

Clearly, he is much more distinguished than judge Ginsburg.

D.E. Cloutier said...

Mr. Majestyk: "Michael K mentioned Chernow's biography of Alexander Hamilton. It was excellent..."

On October 10th, Ron Chernow has a book coming out about Ulysses S. Grant.

Penguin Random House link:
http://www.penguinrandomhouse.com/books/311248/grant-by-ron-chernow/

Robert Cook said...

"Going by the classical definition of "liberal" this is very true. However (Obama) certainly was Progressive and Leftist."

Certainly...NOT!

You're as deluded as his supporters.

Steve M. Galbraith said...

Mr. Marshall was a great man, an incredibly courageous one who could have had a soft comfortable life working for a New York law firm. But instead he worked for poor black Americans denied fairness, traveling the circuit in the South alone, representing black defendants.

Amazing.

Yes, he was a poor Justice - his opinions are dreadful - but the country is greater and better because of his life.

Birkel said...

Robert Cook is the only true living Scotsman.

Mac McConnell said...

Wiki,
"Before the independence of the Thirteen Colonies until the abolition of slavery in 1865, an African-American slave was commonly known as a negro. Free negro was the legal status in the territory of an African-American person who was not a slave.[267] The term colored later also began to be used until the second quarter of the 20th century, when it was considered outmoded and generally gave way again to the exclusive use of negro. By the 1940s, the term was commonly capitalized (Negro); but by the mid-1960s, it was considered disparaging. By the end of the 20th century, negro had come to be considered inappropriate and was rarely used and perceived as a pejorative.[268][269] The term is rarely used by younger black people, but remained in use by many older African Americans who had grown up with the term, particularly in the southern U.S"

When I grew up in the South in 1950s, "Negra" was how Southerners pronounce "Negro". They pronounce "Nigger" either "Nigger" or "Nigga". When referring to a Blacks in general it was "Colored Folk". The "N" word was used by both White and Black, as was "White Trash", both reserved for the lowest of the low and usually in a moment of anger.

I was taught never to use the "N" word, it wasn't spoken in our home. Actually the only time I ever heard the word was when my wealthy friend's Mammie would scold the Black chauffeurs. Yes they had two.