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**APRIL 8, 2022**

Kuttner on TAP

Cry, the Beloved Country

****

Comparing the Senate's decorous treatment of Thurgood Marshall with
the Republican inquisition of Ketanji Brown Jackson

Watching the Republicans' frat-boy hazing of Ketanji Brown Jackson
made me wonder how Thurgood Marshall had fared in his confirmation
hearings when Lyndon Johnson elevated him to the Supreme Court in 1967,
more than a half-century ago. So I checked the transcript
. The
comparison underscores just how far this country has fallen.

The Dixiecrats who still dominated Southern Senate seats knew that
history was not on their side. The momentum was with civil rights. They
did not wish to seem rude or condescending to an eminent Black jurist.
They were serious legislators, albeit defenders of a racist order, and
they gave Marshall the respect of engaging him on serious legal issues,
if only to build a record. It takes today's Republicans to make
yesterday's racists look good.

The Judiciary Committee chair, James Eastland, one of the Senate's
most flagrant racists, engaged Marshall on whether he supported two
famous cases on the rights of criminal suspects,

**Miranda** and

**Escobedo**, citing as proof a newspaper article reporting that "you
did agree with the

**Miranda** case and the

**Escobedo** case."

Marshall replied, "I don't think that I have ever said I disagreed
with it."

John McClellan of Arkansas, another notorious white supremacist, opened
by saying that his questions "do not go to the legal ability or training
or character of the nominee," and then had a respectful discussion with
Marshall on the

**Miranda** ruling and on the case for more expansive use of
wiretapping.

So it went. Sam Ervin, a segregationist yet a constitutional scholar who
was later the hero of Watergate, took almost an entire day discussing
with Marshall the finer points of law. The only line of questioning
close to the kind of hazing to which Republicans subjected Judge Jackson
came from the ultra-racist Strom Thurmond.

Thurmond fell back on the hoary tactic used in literacy tests to prevent
Blacks from registering to vote by posing preposterously arcane
questions that no legal expert could answer off the cuff.

Senator Thurmond: "What purpose did the framers have, in your
estimation, in referring to the incident involving former Representative
Samuel Hoar in Charleston, S.C., in December 1844, as showing the need
for the enactment of the original version of the 14th amendment's
first section?"

Judge Marshall: "I don't know, sir."

Senator Thurmond: "Why do you think the framers said that if the
privileges and immunities clause of the 14th amendment had been in the
original Constitution the war of 1860-65 could not have occurred?"

Judge Marshall: "I don't have the slightest idea."

Even Thurmond displayed a certain grudging respect for Marshall.

And let's recall, the nominee was not a carefully restrained Black
woman sitting judge. It was

**Thurgood Marshall**, no less, the former director-counsel of the NAACP
Legal Defense Fund, who had argued

**Brown v. Board** and countless other landmark civil rights cases.

And here's the most appalling comparison of all. In the end, every
single Republican voted to confirm Marshall, except for Thurmond, a
longtime Dixiecrat who had recently defected to the GOP. Justice
Marshall won confirmation overwhelmingly. Only 11 senators
voted no.

****

~ ROBERT KUTTNER

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