Diversity in the federal judiciary was virtually nonexistent in 1967. Up to that time, only five blacks had ever been appointed to Article III judgeships. The big break with the past occurred when President Lyndon Johnson nominated Thurgood Marshall to the U.S. Supreme Court in June 1967. Wil Haygood has written a compelling book about Marshall’s tumultuous confirmation hearings before the Senate Judiciary Committee, the first such extended hearings in history. It is a measured if sometimes flawed account of how Marshall’s appointment changed the legal profession and the country.
Although Marshall’s nomination was widely celebrated at the time as a bold and progressive gesture, it was met with derision in the South, where Marshall had won dozens of civil rights victories for blacks since the 1930s. As explained by the author, no one felt this derision quite so personally as the five segregationist senators who dominated the Judiciary Committee, including Chairman James Eastland of Mississippi, John McClellan of Arkansas, Sam Ervin of North Carolina, Strom Thurmond of South Carolina, and Robert Byrd of West Virginia. As the confirmation hearing got underway, this quintet determinately threw down the gauntlet.
The author sets the stage well by recounting the cauldron that embroiled America in 1967. As the Vietnam War raged, the country also experienced a marked increase in violent crime, particularly in the major cities. Meanwhile, the Warren Court upset conservatives (including the five segregationist senators) and law enforcement by expanding protections for the criminally accused. The tipping point seemingly came in July, when a five-day race riot ravaged Detroit, the worst since the 1863 New York draft riots. As the turbulence unfolded, many questioned the direction of the country.
Seeking to exploit the strife, the five segregationist senators conspired to derail Marshall’s nomination through televised hearings that aggressively questioned his devotion to law and order, his purported association with so-called undesirables, and his supposed ignorance of constitutional rudiments. This central storyline is strengthened by the author’s extensive quotation of the hearing transcripts, which expose the senators’ antipathy. For his part, Marshall managed under hostile conditions to hold his fire, maintain his poise, and frustrate the senators’ designs.
As the Detroit race riots raged and dominated the news cycle, the segregationist senators suddenly delayed the hearings. In so doing, they hoped that the televised death and destruction would poison public opinion against Marshall and unnerve Johnson who, in the midst of the riot, was compelled to order federal troops to quell the disturbance.
This in turn spurred angry constituent letter-writing campaigns and negative newspaper editorials, examples of which the author excerpts. Marshall was painted as a dangerous radical, raising vocal doubts that 1967 was the right time to appoint a black man to such a prominent judicial post.
Suddenly unsure of himself, Johnson feared that the nomination was doomed. As the hearings dragged on, the president considered pulling the plug on Marshall. Fearing defeat, Johnson secretly approached another prominent black lawyer, William Coleman Jr., to replace Marshall if his nomination failed.
The book is written for a lay audience, lawyers may find unsatisfying the nature and extent of the author’s discussion of the cases that comprised Marshall’s career as a practicing lawyer. Before his 1967 appointment, Marshall argued 34 cases before the Supreme Court, winning 29. He also won dozens of other important civil rights victories in the lower courts. Although the book mentions a few of Marshall’s leading cases, such as Brown v. Board of Education (school desegregation) and Shelley v. Kraemer (restrictive covenants), many other prominent cases are not discussed, leaving an obvious void.
This type of book is especially rewarding if it weaves into the story important figures of the period who, with the passage of time, have become marginalized in history. Although the author occasionally plagues the book with needless tangents, he also deftly embroiders the narrative with insightful discussions of people who genuinely touched Marshall’s life and career, such as his parents, his two wives, Charles Houston, Harry and Henriette Moore, Judge J. Waties Waring, and Senators Phil Hart of Michigan and Joseph Tydings of Maryland.
Surprisingly, some of the book’s best passages explore the origins and career paths of the segregationist senators. He writes that Eastland was the only son of a prominent cotton plantation owner in Mississippi who gained fame by organizing the brutal lynching of a black couple in 1904. McClellan earned his segregationist stripes as a schoolboy when he received high marks for a term paper that criticized President Theodore Roosevelt for inviting Booker Washington to dine at the White House. Ervin was a celebrated constitutional expert who excelled in his studies at Harvard Law School, but used his talents to serve segregation as one of the three principal authors of the “Southern Manifesto.”
At the conclusion of the hearings, the Senate Judiciary Committee approved Marshall’s appointment in an 11-to-5 vote. The nomination then progressed to the full Senate, which confirmed Marshall, 69-to-11, with 20 segregationist senators abstaining. Marshall was sworn in just before the beginning of the 1967-68 Term.
As mentioned by the author, Johnson in his retirement stated that he considered Marshall’s appointment as one of his proudest accomplishments. It was also one of his most consequential. This point could have been made more forcibly in the book, which fails to discuss the fact that Marshall’s appointment led successive presidents to prioritize diversification of the federal bench. Since 1967, more than 80 blacks have been appointed to Article III judgeships.
The book also fails to mention that Marshall’s appointment and distinguished service opened the door to many other groups previously under-represented on the bench. This is important because, as the United States becomes more diverse over time, the body politic will increasingly expect the makeup of the judiciary to reflect the faces of the community. If such diversity is achieved and maintained, it will enhance respect for the legal system. This is the legacy of Thurgood Marshall.