If the Rev. Martin Luther King Jr. was the civil rights movement’s brightest star, Thurgood Marshall was its unsung hero. But to his contemporaries — admirers, allies and enemies alike — Marshall’s string of legal victories, highlighted by Brown vs. Board of Education, placed him at the epicenter of this crusade for justice.
The importance of his role came to a head when Marshall faced off against a wolf pack of Southern senators determined to derail his nomination to the Supreme Court in July 1967.
In “Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America,” Wil Haygood rekindles this historic battle as he explores the effect of Marshall’s ascendancy to the court. “Showdown” is not a standard biography: Marshall’s legal career receives minimal coverage, as does his 24 years of service as a justice. Instead, Haygood, who has written biographies of Sugar Ray Robinson and Sammy Davis Jr., frames the book through this confirmation fight.
And what a fight it was. Historically, only a handful of Supreme Court nominees had faced much scrutiny from the Senate, which had largely rubber-stamped presidential choices by confirming all but one of 46 selections made after 1894.
Marshall, on the other hand, was treated with open hostility. Led by Mississippi’s James Eastland, who unabashedly embraced white supremacy (his daughter was even crowned Miss Confederacy in 1956) and called African Americans an “inferior race” on the Senate floor, the hearings devolved into an interrogation. The South’s “Old Bulls” tried to trap Marshall into a compromising concession. When that didn’t work, they simply smeared him as a renegade lawyer.
“Well, the Constitution is what you are going to say it is,” Arkansas’ John McClellan asked in a typical exchange, trying to bait Marshall. “No, sir,” Marshall responded. “The Constitution is what is written.”
On and on it went as Marshall’s foes took turns firing verbal volleys like hunting buddies at a shooting range.
That Marshall’s nomination was heavily contested reflected the intensity of the region’s animosity toward a man one committee member called the “public enemy of the South.” Marshall, after all, came to the position with nearly unmatched credentials. As the NAACP’s chief attorney, he won 29 cases before the Supreme Court, several of them landmark rulings that changed the course of history. He left to serve as a federal appellate judge before becoming solicitor general, the government’s top Supreme Court advocate. By comparison, none of the current justices has held both prestigious government posts nor matched Marshall’s record of courtroom victories.
The magnitude of these accomplishments cannot be underestimated. In the popular retelling of the era, many have forgotten that Marshall’s triumphs established the foundation for civil rights advocates by placing the imprimatur of the law on their side.
Though Marshall appeared as an ideal target to the judiciary committee’s Southerners for these very reasons, other motives also fueled their desire to torpedo his nomination.
Marshall served as a proxy for the dreaded Warren Court, which under Chief Justice Earl Warren had upended many areas of American life through its rulings on civil rights, criminal procedure, school prayer, obscenity and other culture-war fixtures of the era. From “Dirty Harry” Callahan, the police detective played by Clint Eastwood, to Ronald Reagan, who burnished his conservative credentials by branding a generation of judges as “soft on crime,” critics blamed the court for rising crime rates, deteriorating morals and the riots inflaming America’s cities.
Throughout the hearings, many of the toughest questions fired at Marshall were thinly disguised rebukes of the Warren court. In most instances, he successfully circumnavigated the land mines placed by his foes. He demurred when possible and at other times provided responsive yet limited answers to diffuse potential bombshells.
The confirmation fight grew more dramatic as the hearings stretched to a record fifth day with Eastland contemplating a filibuster. President Lyndon B. Johnson went as far as making alternate plans to find another qualified African American lawyer should Marshall’s nomination crash. Eventually, a coalition of liberal senators and a substantial number of Republicans led by Everett Dirksen pushed through Marshall’s confirmation.
Haygood wisely avoids getting mired in legal jargon in a richly textured account that brings to life the political and cultural stakes involved in this confirmation fight. He does so by juxtaposing the drama of the Senate hearings with Marshall’s travails as the NAACP’s chief counselor. Stories of wrongly accused African Americans whom Marshall freed and civil rights workers whose killers he was unable to bring to justice reveal the elation and despair Marshall endured in serving as his people’s go-to lawyer.
These tales also establish the significance of Marshall’s nomination to African Americans. As a justice, he would no longer be on the outside fighting for the rights of a beleaguered community. He could do so from within the highest corridors of power. Just as important, Marshall’s appointment symbolized the heights African Americans could reach, much like President Obama’s election did in 2008.
Despite these accomplishments, Marshall’s influence is downplayed in the standard account of the era. Perhaps the nature of his contribution, through the trenches of a slow-moving legal system rather than a flashier career marked by widespread popularity, might explain the incongruity.
In the long run, however, Marshall’s path may have left a far more enduring legacy. “The law — unlike sports or entertainment,” Haygood correctly asserts, “was a different and deeper concern for the nation…. A law, once passed — no matter the effort unruly groups went through to undermine it — was sacrosanct.”
Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America
Alfred A. Knopf: 416 pp., $32.50
Bobelian writes about the Supreme Court and is currently working on a book about the Warren Court.