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.
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