Thurgood Marshall & LBJ: From the Johnson Tapes
By David Coleman and Keri Matthews
Thurgood Marshall (July 2, 1908 – January 24, 1993) was the first African American Solicitor General and the first African American Supreme Court justice, appointed to both positions by President Lyndon B. Johnson. Marshall was born in Baltimore, graduated from Pennsylvania's Lincoln University, and studied law at Washington DC's Howard University School of Law. By the time Johnson became president, Marshall had already had a long and distinguished legal career. He had won his first Supreme Court case in 1940 and since then had enjoyed an extraodinarily successful record of 29 wins from his 32 cases. Famously, he successfully argued the crucial 1954 case of Brown v. Board of Education case for school desegregation. Marshall had also been a key player in the Civil Rights movement, having been Chief Counsel of the NAACP (National Association for the Advancement of Colored People). In 1961, President John F. Kennedy appointed Marshall to the U.S. Court of Appeals for the Second Circuit.
With such an impressive and distinguished record, Marshall had become an ideal candidate to help with LBJ's efforts to break down racial barriers to promotion to top government positions. Johnson appointed Marshall as Solicitor General in 1965 and made it clear then that after Marshall built up more experience in that office that he hoped to be able to appoint him to the Supreme Court before the end of his presidency. But before he did so, he wanted to be sure that there could be no criticism whatsoever that Marshall did not have the necessary experience. As he told Roy Wilkins, the Executive Director of the NAACP, "I want to build him up where he's impenetrable when he becomes a Supreme Court justice."
In these calls, Johnson explains that he was grooming Marshall for the Supreme Court as part of his broader efforts to "be the first president that really goes all the way" with Civil Rights and that "I want to do this job that [Abraham] Lincoln started and I want to do it the right way." On June 13, 1967, Johnson nominated Marshall to the Supreme Court to replace Tom C. Clark. Marshall was overwhelmingly confirmed by the Senate on August 30, 1967, and served on the Court until his retirement in 1991.
In this call, President Johnson asks New York Judge Thurgood Marshall to be Solicitor General to replace Archibald Cox, who was planning to resign his post and return to his position at Harvard University's Law School. In 1961, President Kennedy had appointed, Marshall, at the time Chief Counsel for the NAACP, to the United States Court of Appeals for the Second Circuit.
Johnson said he had been considering the offer for weeks and laid out a number of reasons for it, among them that "I want to do this job that [Abraham] Lincoln started and I want to do it the right way" and that "I want to be the first president that really goes all the way." While also carefully clarifying that he was not making any promises about future positions, Johnson also made it clear that he wanted to groom Marshall for "something better," a reference to a seat on the Supreme Court. Two years later, Johnson would indeed nominate Marshall to the Supreme Court to replacing the outgoing Associate Justice Tom C. Clark.
Johnson's persuasion worked. Marshall accepted the position on the spot and in August 1965 became the first African American Solicitor General of the United States.
Following up on the earlier call, Thurgood Marshall calls President Johnson to reschedule his visit to the White House for Friday. Believing that he was being put through to a secretary or aide, Marshall doesn't initially recognize the President's voice.
In this call, President Johnson and Attorney General Nicholas Katzenbach∇ discuss their strategy for paving the way for nominating Thurgood Marshall as Solicitor General, a Cabinet-level position, without tipping off potential critics and while still satisfying Deputy Attorney General Ramsay Clark's recommendations to promote Constance Motley.
The appointment of Arthur Goldberg∇ to be U.S. Ambassador to the United Nations in 1965 created a vacancy on the Supreme Court. Johnson had just appointed Thurgood Marshall as Solicitor General in order to groom him for the Supreme Court--something Johnson had hinted at to Marshall earlier and said explicity in this call with liberal public intellectual and economist John Kenneth Galbraith--but Johnson judged that it was still too soon to nominate Marshall as Goldberg's replacement.
President Johnson called Roy Wilkins, the Executive Director of the NAACP, to discuss the potential appointment of Robert Weaver∇ as Secretary of Housing and Urban Development. Both Johnson and Wilkins were concerned that naming Weaver, an African American, to the Cabinet-level post could provoke political problems that might interfere with HUD's work.
Johnson held the example of Thurgood Marshall's grooming for the Supreme Court up as the model that he'd like to follow for promoting outstanding African American candidates to senior government positions.
Thurgood Marshall and LBJ discuss various possible appointmens, including Frank Williams to head the Peace Corps and Ralph Spritzer to go to the Federal Power Commission. They also discuss Civil Rights leaders' recent criticism of Johnson and the Voting Rights Act.
LBJ and Nicholas Katzenbach briefly discuss a recent column by David Lawrence of U.S. News and World Report criticizing the idea of appointing Marshall to the Supreme Court.
Just before announcing Thurgood Marshall's nomination to the Supreme Court, President Johnson and Attorney General Ramsay Clark discuss how the nomination will be received along with an article in that morning's Baltimore Sun accurately predicting Marshall's nomination.
In this call, Thurgood Marshall's wife, Cecila, called to thank President Johnson for his support of her husband. The previous day, August 30, Thurgood Marshall was confirmed by the Senate by a vote of 69 to 11 as the 96th Justice of the United States. In the process, he became the first African American member of the Supreme Court.
Photos and original tapes courtesy of the LBJ Library.