ESSAY: On the Gorsuch Nomination -- and Remembering Thurgood Marshall

By Kimberly Fain

President Trump has offered us, so far, quite a first 100 days.  There has been the political whiplash, after eight years of our first black President, to an almost all-white-male Cabinet.  There has been a series of extreme executive orders, which have prompted mass protests in the streets and judicial rebukes.  And there has been, almost lost amid all of the manic energy emanating from 1600 Pennsylvania Avenue, the nomination of Judge Neil Gorsuch for what appears to be his inevitable seat on the Supreme Court.

With the nation on the brink of what is likely to be a very damaging addition to the High Court, it is tempting, if a bit masochistic, to think back to a very different historic Supreme Court nomination — one that Lyndon Johnson made in 1967.  It was another era in which the nation was deeply divided, and changing rapidly, but rather than looking backward to an older America, Johnson looked forward — which he showed when he nominated Thurgood Marshall to be the the first African-American on the Court.

It is a story told compellingly in Will Haygood’s Showdown: Thurgood Marshall and the Supreme Court Nomination That Changed America — one of the best books of 2015 according to the Washington Post and NPR, and a New York Times Editors’ Choice — which feels all the more relevant today (and all the more so during Black History Month).  Haygood reports that the Johnson Administration received its worst hate mail not over the Vietnam War, but over the Civil Rights Movement — but he still chose a nominee who, by virtue of philosophy, legal career, and identity could be counted on to propel the nation forward.

Johnson had no doubt that Marshall was well-qualified to be a Supreme Court justice.  Marshall was the most famous and accomplished NAACP lawyer of the era, who had excelled as an advocate before the Court, arguing some of the most significant legal challenges to white supremacy.  In Shelley v. Kraemer (1948), the justices struck down restrictive covenants, which prevented a homeowner from selling to a black buyer. In Sweatt v. Painter (1950), the Court ordered the University of Texas to admit the first black student to its law school. Marshall’s marquee case was, of course, Brown v. Board of Education (1954), in which the court ordered desegregation of the public schools of Topeka, Kansas.

Beyond his demonstrated legal acuity, Marshall held another attraction: LBJ was convinced his presence on the Supreme Court could quiet the racial uprisings that were roiling urban America.  Employing his trademark “Johnson Treatment,” carefully mixing cajoling and threats, LBJ leaned heavily on Senators to see the nomination as he did.  “Thurgood Marshall,” Johnson told anyone who would listen — and he made them listen — “was the right man at the right time to go onto the Supreme Court."

In making the nomination, Johnson was motivated by deep convictions that appear to have played no part in President Trump’s selection of Gorsuch: that it is important to to choose a justice who makes marginalized Americans feel more fully part of the Union, and one who comes down firmly on the side of progress.

Johnson was acutely aware that African-Americans felt disenfranchised — quite literally, since it was so difficult, in much of the country, for them to cast a ballot — and that this was a major impetus for black outrage.  If African-Americans saw themselves represented and capable of influencing their own destinies, they would feel a vested stake in the system. Perhaps, in Johnson’s assessment, less inclined to spill their socio-economic frustration into the streets.

In addition to idealistic commitment to equal rights and concern about African-American anger, Haygood readily concedes that Johnson had another interest in black enfranchisement: political self-interest. One of the key early voting rights victories had occurred in LBJ’s home state of Texas.  In Smith v. Allwright (1944), a case that Marshall argued, the Court struck down Texas’s all-white Democratic primary.  Haygood notes that overturning these discriminatory laws in the Smith case "would come to greatly improve the future fortunes of the Texan Lyndon Johnson as he launched a bid for the U.S. Senate." Blacks were not yet as overwhelmingly Democratic as they would be after Johnson’s support of the Civil Rights Act of 1964 — but even in the 1940s, it was clear that greater black enfranchisement would help Johnson and his party.

Republicans today like to boast about being the Party of Lincoln, suggesting that blacks should still be grateful to them.  Of course, Republicans long ago gave up any right to calling themselves the party of civil rights — and Haygood provides some of that history.  He argues that the GOP’s betrayal of African-Americans dates back to 1906 in Brownsville, Texas, when President Theodore Roosevelt dishonorably discharged black soldiers based on flimsy claims from white townspeople that they injured a white police officer and murdered a white bartender. According to Haygood, the townsfolk’s concerns were actually over what they perceived to be sexually aggressive African-American soldiers and their fears for Southern white female virtue. Without investigating the servicemen’s side, the government accepted the word of white civilians over black men who had served their country.

There were, of course, many more indignities and injustices to come, and Haygood traces a good deal of it.  One thing that shines through his history is how central Marshall was to the dawning of the civil rights era — and to the dawning of Johnson’s career.  Johnson won a seat in the U.S. Senate — his steppingstone to the presidency — due in significant part, Haygood notes, to “Negroes who now, because of Thurgood Marshall and the Smith decision, could vote without disruption in the state.”

Haygood does not shy away from the large helping of self-interest in LBJ’s support of Marshall, but there is also, unmistakably, idealism in the mix — a genuine desire to build a nation more inclusive to all Americans.  There is nothing in Trump’s selection of Gorsuch that suggest such a unifying intent. Indeed, as the GOP has become increasingly identified as the party of voter suppression, of rolling back civil rights, of oppression of immigrants, and of intolerance, there is reason to believe Gorsuch represents precisely the opposite.

There may, of course, be more Trump Supreme Court nominations yet to come — ones that, depending on who leaves, could push the Court in a radically new direction.  When Trump was finalizing his Supreme Court short list, there were three white males on his list — and not one who had Thurgood Marshall’s record of compassion and advocacy for the nation’s most vulnerable.  As Trump’s opponents rise up in opposition, Haygood’s wonderful history of LBJ’s nomination of Marshall is a much-needed counter-history — of how things once were, and how we need them to be again.


Kimberly Fain is an attorney, and teaches African American literature at Texas Southern University. She has two published books: Colson Whitehead: The Postracial Voice of Contemporary Literature and Black Hollywood: From Butlers to Superheroes, the Changing Role of African American Men in the Movies. Follow her on Twitter at @KimberlyFain