Author Topic: Will Haygood’s ‘Showdown’: Marshall's battle for the Supreme Court seat  (Read 651 times)

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Wil Haygood’s ‘Showdown’
By DAVID MARGOLICKSEPT. 14, 2015

Thurgood Marshall sits in Room 2228 of the New Senate Office Building on July 13, 1967, a month after Lyndon Johnson has named him to the United States Supreme Court. Facing him are, among others, four arch-segregationist Southerners on the Senate Judiciary Committee: John McClellan, Sam Ervin, Strom Thurmond and its chairman, James Eastland. Marshall is determined to become the first black man ever to sit on the nation’s highest court. The senators are equally determined to block him.

If a photograph of the scene existed, it would be as indelible an image of the civil rights era as the fire hoses of Birmingham, the lunch counters of Greensboro or the “I Am a Man” protesters of Memphis. Instead, Marshall’s historic appointment, and the battle to confirm him, are almost entirely forgotten.

The story gets lost, perhaps, amid Johnson’s other landmark achievements, notably the Civil Rights Act of 1964 and the Voting Rights Act of the following year. Perhaps it’s also because, like other black trailblazers — Walter White and A. Philip Randolph are just two — Marshall has been relegated to the shadow of Martin Luther King Jr., little mentioned nowadays except by Amtrak conductors approaching the Baltimore airport. Or perhaps it’s because Johnson’s principal biographer, Robert Caro, hasn’t yet reached that part of the story.

But Wil Haygood now has. The outlines of the tale he tells in “Showdown” are beautifully captured by a photograph that does exist — in fact, it’s the first photograph in the book — showing Marshall and Johnson standing together the day the appointment was announced. It suggests their compatibility was not just physical — they were both large and shambling men — but temperamental: Each was wily and resourceful, rough-hewed and plain-­spoken. Johnson himself recognized as much.

“Thurgood, I’m nominating you because you’re a lot like me: Bigger than life, and we come from the same kind of people,” he told him. Because there had been no Supreme Court vacancies handy, Johnson, the consummate wheeler-­dealer, fashioned one, naming Ramsey Clark attorney general in order to induce his father, Justice Tom C. Clark, to quit. Johnson could then slide Marshall, solicitor general at the time, into Clark’s slot.

Before that, Marshall had been a federal appeals court judge in New York, begrudgingly named six years earlier by President Kennedy after Marshall had spurned his offer of a seat on the federal trial bench. (“My boiling point is too low for the trial court,” Marshall had explained. “I’d blow my stack and then get reversed.”) That initial offer had come from Robert Kennedy. “You don’t seem to understand,” he warned Marshall. “It’s this or nothing.”  “I do understand,” Marshall lectured him. “You don’t know what it means, but all I’ve had in my life is nothing. It’s not new to me, so goodbye.”

For much of that life, Marshall had been the founder and principal litigator of the NAACP Legal Defense and Educational Fund, fighting, against great odds and at enormous personal risk, to dismantle Jim Crow in Southern schools, courtrooms, lunch counters and voting booths — that is, when he wasn’t struggling frantically to spare individual indigent blacks from the electric chair or the rope. “Folks would come for miles, some of them on muleback or horseback, to see ‘the nigger lawyer’ who stood up in white men’s courtrooms,” an N.A.A.C.P. official would later recall. Not all of Marshall’s beneficiaries, though, were black: By helping to invalidate ­Texas’ whites-only primaries, thereby adding thousands of black voters to the rolls, he helped make Lyndon Johnson a senator.

“He is one of the most distinguished lawyers in the land,” Senator Jacob Javits of New York said in introducing Marshall to the Judiciary Committee. Javits’s words were echoed 24 years later when the first President Bush introduced Marshall’s replacement, Clarence Thomas. But in Marshall’s case, they were true.

In what was really Marshall’s first victory over the segregationist senators, they did not dare challenge his civil rights work. Instead, seeking to exploit concerns about crime — riots in Detroit and elsewhere were taking place during the hearings — they asked him about (and, in effect, blamed him and people like him for) recent Supreme Court decisions expanding the rights of criminal defendants. At one point Senator Ervin, not yet the avuncular figure of the Watergate hearings, complained that the Fifth Amendment was never meant to invalidate “voluntary confessions.”

“Well, Senator, the word ‘voluntary’ gets me in trouble,” Marshall replied. “I tried a case in Oklahoma where the man ‘voluntarily’ confessed after he was beaten up for six days.” The hearings, startlingly unscripted compared with today’s antiseptic proceedings, furnished one of the first debates on originalism — the idea that the Constitution was frozen in time rather than, as Marshall argued, a “living document” — and which, in this instance, was the refuge of bigots. They also featured Senator Thurmond trying to trip Marshall up on historical trivia that no one but a specialist, and certainly not Thurmond himself, could possibly have known.

“Are you prejudiced against white people in the South?” Senator Eastland asked Marshall. It was not, as Haygood writes, the “penultimate” question, but it was the ultimate one, and Marshall handled it with aplomb. Shortly thereafter, he was overwhelmingly confirmed, and far more easily than Haygood leads us to expect he would be. Miraculously (though Haygood fails to point it out) only one Republican, Thurmond, voted against him. For all his fears, Lyndon Johnson was famously persuasive (and were Marshall to falter, he even had another black candidate, William Coleman, waiting in the wings). He could also count noses.

Haygood, the author of previous biographies of Adam Clayton Powell Jr., Sammy Davis Jr. and Sugar Ray Robinson, is passionate and, at times, eloquent. But “Showdown” can be very rough going. There are spasms of bad writing, filled with tortured metaphors and redundancies: A “risky tightrope” and “Jewish synagogues” are but two. “The entire American federal judiciary was nearly all white,” he writes. Characters are continually reintroduced, characterizations and facts needlessly repeated. Grousing about such potholes can seem petty. But they’re distracting, and besides, a figure and a story this grand deserve better.

Haygood hypes. He repeatedly and portentously calls Marshall “Thurgood Marshall,” in much the way Bill Clinton morphs into “William Jefferson Clinton” whenever he wants to sound solemn. He tells us such confirmation hearings were “gravely important, the highest mission for judiciary members,” only to concede later on that before Marshall came along, they were often perfunctory: For instance, both William J. Brennan Jr. and an earlier Johnson nominee, Abe Fortas, sailed through in under a day. And happy though he surely was at Marshall’s swearing in — it was no accident that Justice Hugo Black, once a member of the Ku Klux Klan, administered the oath — can one imagine Lyndon Johnson ever being “delirious with joy”?

There are many mistakes. The Federal troops Dwight Eisenhower sent to Little Rock did not, as Haygood tells us, remain there “for an entire year.” Franklin Roose­velt wasn’t president — or Eleanor first lady — when World War II ended. Sometimes he seems tone-deaf. Even before Atticus Finch’s recent unmasking in “Go Set a Watchman,” can it really be true, as Haygood writes, that “Negroes would tell you Thurgood Marshall was Atticus Finch before Atticus Finch”?

Inexplicably, the book omits Marshall’s oral argument in Brown v. Board of Education. And, apart from some condescension from Joseph Kraft of The Washington Post — Marshall “will not bring to the court penetrating analysis or distinction of mind,” he predicted — there’s next to nothing about press coverage of the hearings. Instead, Haygood relies almost entirely on transcripts for his account.

Haygood offers little meaningful eyewitness testimony. The endnotes confirm his dependence largely on previously published books; his account lacks the grit and specificity that comes with original research. How and with whom did Marshall prepare for the hearings? How was this outspoken and salty man — he later called Eastland “the meanest son of a bitch that ever walked the earth” — taught to hold his tongue? Which senators did Johnson lobby most aggressively, and how? It’s hard to believe that Johnson’s papers, which Haygood says he consulted, don’t provide at least some clues.

One might think there was neither the time nor space for these queries, but that’s not it. Instead, the book subjects readers to something Marshall himself never faced: a filibuster. Or filibusters. Again and again Haygood detours, into everything from the flight of John ­Wilkes Booth to the making of “Guess Who’s Coming to Dinner.” As interesting as these digressions — and digressions from digressions — can be, they don’t warrant the copious space he gives them. Though Haygood quite rightly loves his story, he also doesn’t love it enough; otherwise, he’d have stuck more closely to it.

Haygood has done a great service by reminding us of an extraordinary man at an extraordinary moment. He correctly notes that someone even remotely like Marshall, with his liberal record and instincts, would never be confirmed today. But for the real inside story of how all this happened, we’ll just have to wait — for Robert Caro.