Thurgood Marshall (50 page)

The LDF prepared several memos on possible legal strategies for getting the students out of jail, but none made the grade with Marshall. However, an outpouring of telephone calls from NAACP members, as well as pressure from black newspapers and offers of money from churches and foundations, persuaded him that the LDF had no choice but to act as the students’ legal representatives. Money was pouring in, even from conservative, older southern blacks who felt sympathetic to the young demonstrators.

Looking for strategies for defending the students, Marshall called a conference of civil rights lawyers at Howard University on March 18. Most of the lawyers, like Marshall, were skeptical of finding any legal basis for defense. The courts had long held that store owners had the right to refuse to do business with anyone they chose not to serve.

Marshall’s young, activist staff, however, put forward the idea that a restaurant had to deal with anyone who walked in the door, regardless of race, under the equal protection clause of the Fourteenth Amendment. And Marshall became a convert when he began to consider that if racial prejudice were enforced by the state’s police and courts, then it was unconstitutional. By the end of the three-day conference, Marshall had set aside $40,000 to defend sit-in protesters. “Once a store is opened to the public it means it is open to everybody—without discrimination,” he told the
Washington Star
after the conference. “If it sells pins and needles to a
Negro at one counter, it can’t keep him from buying hamburgers [at another counter].”
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The legal strategy was in place, but there was another battle to be fought. While Marshall wanted to be totally in charge of the legal representation of the students, Roy Wilkins and Bob Carter wanted to limit the LDF to the role of advisers. Marshall won out by agreeing to let Wilkins deal with local NAACP leaders while he, using his ties with civil rights lawyers around the country, retained control of how the cases were argued in various state courts.

The response from segregationists to Marshall’s support for the students was sharp. Georgia’s senator Richard Russell told reporters that sit-ins were an attempt to “invade and impair the right of private property in this free America.” He concluded that if Marshall and the sit-in students won the Supreme Court’s support, the Constitution would be “distorted” and no one could “feel secure in his property rights.”
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While Marshall was staving off Senator Russell’s attacks, he found himself the target of barbs from black students who were leery of him. They did not want Marshall, one of the older black leaders—people they saw as too conservative—taking charge of their budding movement and the energy, publicity, and money it was attracting. In fact, the LDF was raising substantial sums of money because of the sit-ins. They brought in more than $500,000 in 1960, about one and a half times what they had raised the year before.

While Marshall remained dubious that the sit-ins would do any good, he nevertheless made fund-raising speeches around the nation, praising the students’ activism and asking for donations to help with their legal bills. The students were “furnishing a lesson for all of us,” Marshall told an AME Zion convention in Buffalo. “What they are doing is telling us that we are too slow,” he said to one audience. “I am telling you they are right.”
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Marshall filed several suits in support of students demanding food service at Jim Crow lunch counters. In one case, Bruce Boynton, a Howard Law student, had been arrested for insisting that a Trailways bus station lunch counter in Richmond serve him. Just before Marshall was to argue the case in the Supreme Court (it was to be his last NAACP oral argument before the court), the third-year student appeared at the door of Marshall’s hotel room to tell him how to do it. Boynton’s arrogance prompted the LDF lawyers in the room to break into laughter the minute he left. Their laughter was a double-edged sword, a sign of
the growing distance between Marshall and the young people now in the vanguard of the civil rights movement. The case ended successfully when the court ruled in Marshall’s favor, voting 7–2 that the bus station’s refusal to serve a black patron was a violation of the Interstate Commerce Act.

The dramatic confrontations at lunch counters continued, however. By the end of 1960 some 1,700 students had been arrested throughout the South for disturbing the peace by demanding to be served in segregated restaurants. In 1961 Marshall filed a brief in the Supreme Court (
Garner v. Louisiana
) that argued that the Fourteenth Amendment gave the students the right to be served in a public restaurant and made the point that the well-dressed, polite young people had never disrupted the peace. The Supreme Court unanimously ruled at the end of the year in a sweeping decision in favor of Marshall and the students. The sit-ins had succeeded.

* * *

This new civil rights crisis brought on by the sit-in movement and marches was a major concern for candidates in the 1960 presidential election. The issue was particularly difficult for the Democrats, since southern segregationists were an important constituency for their party. Sen. John Kennedy of Massachusetts, the leading Democratic candidate during the primaries, called Marshall for advice. At a two-hour lunch in Kennedy’s office, he asked Marshall if a northern Catholic could win in the nation’s racially charged atmosphere.

“He told me that he was thinking about running for president and what did I think about it?” Marshall said, describing the conversation. “And I told him, ‘No way.’ I remembered Al Smith [1928 Democratic candidate for president who was Catholic]. The Masons killed Al Smith, and the Masons would kill him off. And he said he didn’t think so. I said, ‘Well, you asked for my opinion, and that’s my opinion.’ ”

Kennedy ran, captured the Democratic nomination, and was in a very close general election against the sitting vice president, Richard Nixon. The Republican had substantial black support thanks to his association with the popular Eisenhower and a fairly good civil rights record. In October, however, the black vote took a decisive turn. Martin Luther King was arrested in Georgia for taking part in a student sit-in protest at Rich’s department store. Most of the protesters were released within a week when Marshall and the LDF put up bail money and went to court to
defend them. But King was denied bail because of an earlier arrest for driving without a Georgia license. He was sent to a rural penitentiary infamous for its cruelties to prisoners. The LDF continued to argue in court for his release as King began a four-month sentence.

Candidate Nixon asked the Justice Department to check on King’s rights and make sure that he was being properly treated. Candidate Kennedy, however, made a call to King’s wife, Coretta, and promised to do what he could to get King out of jail. Robert Kennedy, the candidate’s younger brother, also called an Atlanta federal judge about King’s detention. A day later King was set free.

After King was released the Kennedy campaign printed pamphlets for black churches telling the story of how Kennedy had worked to get King out of jail. The strategy paid off; Kennedy won 68 percent of the black vote in an election decided by less than 1 percent of the vote. But Marshall was filled with resentment. NAACP attorneys had been working around the clock and he felt upstaged. Right after King’s release he phoned Donald Hollowell, the NAACP attorney in Atlanta who was handling the case. After congratulating Hollowell, Marshall let out a snicker and said: “You know they tell me everybody in the world got Martin Luther King, Jr., out but the lawyer.” Both Hollowell and Marshall burst out laughing.
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After the election black voters, politicians, and newspaper publishers had high expectations for Kennedy. They were counting on him to enact new civil rights laws and appoint blacks to high-level federal jobs. Attention quickly turned to several vacant federal judgeships, with Marshall as the most prominent candidate. Just before the election Marshall, age fifty-two, was described in a newspaper interview as “getting to the age when elevation to the bench becomes an increasingly attractive goal.”
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Just two months into the new administration, the
Afro
ran an editorial titled “Thurgood Marshall Next?” In it Carl Murphy named several black Democrats who had been given jobs in the new administration, then said, “We boldly submit that President Kennedy will find also a wise and able federal judge in Thurgood Marshall.”
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But Marshall’s relationship with the administration hit a rough patch. First, he was asked to come to Washington to talk with the new attorney general, Robert Kennedy, under the guise of discussing civil rights. The two really wanted to size each other up. It was a disaster. “I had a very unsatisfactory conference with Bobby about the civil rights movement
shortly after they took over,” Marshall remembered. “He spent all this time telling me what we should do.”

By late March, Marshall was among the first to accuse the administration of forgetting black voters. He criticized President Kennedy for failing to include any civil rights legislation among the bills he sent to Congress in the first 100 days.

Despite the tensions between Marshall and the Kennedys, the new administration surprised the lawyer with an invitation to represent the president at a celebration of the independence of Sierra Leone, which had been under British colonial rule. In an apparent effort to stroke Marshall and tone down the criticism, he was not only asked to attend the celebration but given the rank of “special ambassador.” He took an ambulance, a “mobile x-ray and medical center,” as a gift from the United States to the people of the new black nation.

By the time Marshall returned to the United States, the good publicity generated by his trip had the White House again looking at him as a possible nominee for a judgeship. Frank Reeves, who had worked for Marshall at the NAACP, was now a special assistant to the president. Reeves got a letter from William Coleman, then the most prominent young black lawyer working at one of the nation’s major white law firms, which were still highly segregated. Coleman urged Reeves to get the president to appoint Marshall to the federal bench. He went so far as to suggest that some southerners might be angry, but Kennedy could assure Dixiecrats that Marshall would be in a New York court and would “handle no matter which would adversely affect the interests of the south.”
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By late May the House Judiciary Committee sent a list of black nominees to Attorney General Kennedy for openings on the federal bench in New York. Marshall’s name was on the list, and so was that of Robert Carter, Marshall’s former top aide who he had come to view as his private antagonist. The memo indicated that President Kennedy was “strongly of the opinion” that one—but only one—judgeship in New York go to a black person. The contest was quickly shaping up as Carter versus Marshall. Carter, although he was not as well known as “Mr. Civil Rights,” was far more acceptable to white southern congressmen, who would have to vote on the nomination.

“Thurgood Marshall is a Democrat,” the House Judiciary Committee wrote to the attorney general. “He is an excellent lawyer. Of course, we recognize that he is a controversial figure and we may have difficulty in
getting him confirmed. As you know, he is a man of very positive and forceful convictions, perhaps a little too rigid in his views, yet, probably, the best qualified of all Negro applicants.”
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Despite the problems a Marshall nomination might cause, it had its strong points. Robert Kennedy did see the political advantage in making the best-known civil rights lawyer in the country a Kennedy appointee. However, the younger Kennedy was only willing to put Marshall on the district court bench, not on the higher appeals court. That created a problem because Marshall refused to have his name put in for the lower court. He wanted an appeals court job, which would put him on the same level as his old Howard law professor Bill Hastie, who, as a member of the Third Circuit Court of Appeals, was the highest-ranking black judge in the country.

Marshall felt his lifelong accomplishments were being overlooked because the attorney general was making a purely political judgment about the cost of putting a civil rights lawyer on the appeals court. He viewed Attorney General Kennedy as “awfully ruthless,” but he agreed to another meeting

“I told Bobby Kennedy that I was not district judge material, because my fuse was too short,” Marshall subsequently told an interviewer. “I lose my temper. And that wasn’t good. But I would like to be on the Court of Appeals.”

Kennedy gave Marshall a take-it-or-leave-it offer for the district court. “It’s that or nothing,” Kennedy told him.

An indignant Marshall looked the attorney general dead in the face as he stood to leave. His eyes narrowed, and his voice dropped: “Well, I’ve been dealing with nothing all my life, there’s nothing new on that.”
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With Marshall locked in an emotional, political, and ego-driven fight with Kennedy, Bob Carter became the front-runner. One newspaper profiled him as the likely winner among contenders for the district court judgeship, which Carter was willing to accept. But Carter’s nomination was unexpectedly pushed off track after he interviewed with the judicial committee of the bar association. What happened during the interview was not revealed. But Jack Greenberg, who had replaced Carter as Marshall’s top assistant at the LDF, later said that Marshall told him Carter was undone by “his arrogance.”

Some of Carter’s friends thought Marshall had used his influence among the liberal, all-white bar to damage Carter. “Now what role Marshall played in that or any of Marshall’s friends can’t be said,” Greenberg
later told an interviewer. “Some of Carter’s friends at least thought there was some such role.”
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The bar association’s failure to give Carter unqualified support left the administration in a jam. They still needed a black nominee to fill one of the vacant court seats in New York, and Thurgood Marshall’s name again floated to the top of the list. It was then that Marshall had a serendipitous meeting with Louis Martin, the lanky, honey brown newspaper publisher who was now the leading black politico at the Democratic National Committee. Martin and Marshall had long been friendly and often crossed paths on the political circuit.