Marshall's early life:
Marshall was born in Baltimore, Maryland, on July 2, 1908. He was the great-grandson of a slave who was born in the modern-day Democratic Republic of the Congo; his grandfather was also a slave. His original name was Thoroughgood, but he shortened it to Thurgood in second grade because he disliked spelling it. His father, William Marshall, who was a railroad porter, and his mother Norma, a teacher, instilled in him an appreciation for the United States Constitution and the rule of law.
His career in law, first as an attorney and later a judge, started with his entrance to law school
Thurgood Marshall in 1936
at the beginning of his career
with the NAACP
In 1930, he applied to the University of Maryland Law School, but was denied admission because he was Black. This was an event that was to haunt him and direct his future professional life. Thurgood sought admission and was accepted at the Howard University Law School that same year and came under the immediate influence of the dynamic new dean, Charles Hamilton Houston, who instilled in all of his students the desire to apply the tenets of the Constitution to all Americans. Paramount in Houston's outlook was the need to overturn the 1898 Supreme Court ruling, Plessy v. Ferguson, which established the legal doctrine called "separate but equal." Marshall's first major court case came in 1933 when he successfully sued the University of Maryland to admit a young African-American Amherst University graduate named Donald Gaines Murray. Applauding Marshall's victory, author H.L. Mencken wrote that the decision of denial by the University of Maryland Law School was "brutal and absurd," and they should not object to the "presence among them of a self-respecting and ambitious young Afro-American well prepared for his studies by four years of hard work in a class A college."
Thurgood Marshall followed his Howard University mentor Charles Hamilton Houston to New York and later became chief counsel for the National Association for the Advancement of Colored People (NAACP). During this period, Mr. Marshall was asked by the United Nations and the United Kingdom to help draft the constitutions of the emerging African nations of Ghana, and what is now Tanzania. It was felt that the person who so successfully fought for the rights of America's oppressed minority would be the perfect person to ensure the rights of white citizens in these two former European colonies.
After amassing an impressive record of Supreme Court challenges to state-sponsored discrimination, including the landmark Brown v. Board of Education decision in 1954, President John F. Kennedy appointed Thurgood Marshall to the U.S. Court of Appeals for the Second Circuit. In this capacity, he wrote over 150 decisions including support for the rights of immigrants, limiting government intrusion in cases involving illegal search and seizure, double jeopardy, and right to privacy issues. Biographers Michael Davis and Hunter Clark note that "none of his (Marshall's) 98 majority decisions was ever reversed by the Supreme Court." In 1965 President Lyndon Johnson appointed Judge Marshall to the office of U.S. Solicitor General. Before his subsequent nomination to the United States Supreme Court in 1967, Thurgood Marshall won 14 of the 19 cases he argued before the Supreme Court on behalf of the government. Indeed, Thurgood Marshall represented and won more cases before the United States Supreme Court than any other American.
A PBS documentary referred to Marshall as "Mr. Civil Rights:"
Civil rights attorney Thurgood Marshall’s triumph in the 1954 Brown v. Board of Education Supreme Court decision to desegregate America’s public schools completed the final leg of a journey of over 20 years laying the groundwork to end legal segregation. He won more Supreme Court cases than any lawyer in American history, making the work of civil rights pioneers like the Rev. Martin Luther King, Jr. and Rosa Parks possible.
At the end of the above clip, Supreme Court Justice Elena Kagan, who clerked for Marshall, calls him "the greatest lawyer of the 20th century."
Kagan would pay a price for that admiration in her own hearings before hostile Senate Republicans. Since Kagan did not have a history as a judge for them to pick through, they instead attempted to smear her with Marshall.
Dana Milbank struck an appropriately snarky tone in The Washington Post:
As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.
"Justice Marshall's judicial philosophy," said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, "is not what I would consider to be mainstream." Kyl -- the lone member of the panel in shirtsleeves for the big event -- was ready for a scrap. Marshall "might be the epitome of a results-oriented judge."
It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African-American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint—literally. Marshall this spring was added to the Episcopal Church's list of "Holy Women and Holy Men," which the Episcopal Diocese of New York says "is akin to being granted sainthood."
With Kagan's confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.
Sen. Al Franken mounted a defense of Marshall:
This brings to mind the snide encounter Justice Sonia Sotomayor had with Sen. Jeff Sessions, who kept trying for "gotcha" but ended up being grabbed himself
Sen. Jeff Sessions (R., Ala.), seeking to discredit Judge Sonia Sotomayor‘s judicial philosophy, cited her 2001 “wise Latina” speech, and contrasted the view that ethnicity and sex influence judging with that of Judge Miriam Cedarbaum, who “believes that judges must transcend their personal sympathies and prejudices.”
“So I would just say to you, I believe in Judge Cedarbaum’s formulation,” Sessions told Sotomayor.
“My friend Judge Cedarbaum is here,” Sotomayor riposted, to Sessions’ apparent surprise. “We are good friends, and I believe that we both approach judging in the same way, which is looking at the facts of each individual case and applying the law to those facts.”
“I don’t believe for a minute that there are any differences in our approach to judging, and her personal predilections have no effect on her approach to judging,” she told Washington Wire. “We’d both like to see more women on the courts,” she added.
Senate and SCOTUS observers predict more of the same—and worse. Over at FiveThirtyEight, Harry Enten predicted the Supreme Court won’t be getting another Sotomayor anytime soon
Democrats lost the Senate, but so what? President Obama still has two more years and a veto.
But there is at least one area where the GOP’s new Senate majority makes a big difference: a Supreme Court nomination. While it’s still unclear whether Obama will get to nominate another justice, the Republican gains in November make it unlikely a liberal nominee, such as Justice Thurgood Marshall, would be confirmed. And a nominee like the two Obama-appointed justices currently sitting on the court, Elena Kagan and Sonia Sotomayor, would face a possible filibuster.
Only a true middle-of-the-road nominee — such as Justice Stephen Breyer before his nomination hearing — or a perfectly qualified, center-left nominee — such as Justice Ruth Bader Ginsburg — would be a favorite to be confirmed.
We know this thanks to research spearheaded by Lee Epstein, a professor at Washington University in St. Louis, which measured what matters in gaining Senate confirmation. As I noted in September, ideology has become the single biggest factor—the ideology both of the nominee and of the senators. Qualifications are now a secondary consideration. They still matter (see Harriet Miers), but even the most qualified candidate picked from an ideological pole would face a slew of opposition.
Do we really want to see a "middle-of-the-road nominee" selected by President Obama, or even by the next Democrat who occupies the Oval Office? (I refuse to consider a Republican moving in.)
We need another Marshall. Or a Warren, Brennan, Douglas, or Brandeis.
It is nowhere near Christmas, but I've already made my SCOTUS Santa list of potential candidates I'd like to see considered for the court. My wish list includes Richard Revesz, Amy Klobuchar, and Sherrilyn Ifill.
Ifill, a cousin of PBS host Gwen Ifill, would be a fitting successor to Thurgood Marshall on the high court. She currently heads up the NAACP Legal Defense Fund, which he founded.
Sherrilyn Ifill is the seventh President and Director-Counsel of the NAACP Legal Defense and Educational Fund, Inc. Ms. Ifill is a long-time member of the LDF family. After graduating law school, Ifill served first as a fellow at the American Civil Liberties Union and then for five years as an assistant counsel in LDF’s New York office, where she litigated voting rights cases. Among her successful litigation was the landmark Voting Rights Act case Houston Lawyers’ Association vs. Attorney General of Texas, in which the Supreme Court held that judicial elections are covered by the provisions of section 2 of the Voting Rights Act.
In 1993, Ms. Ifill joined the faculty of the University of Maryland School of Law, where, in addition to teaching Civil Procedure, Constitutional Law and variety of seminars, she continued to litigate and consult on a broad and diverse range of civil rights cases while grooming the next generation of civil rights lawyers. In addition to teaching in the classroom, Ms. Ifill launched several innovative legal offerings while at Maryland Law School, including an environmental justice course in which students represented rural communities in Maryland, and one of the first legal clinics in the nation focused on removing legal barriers to formerly incarcerated persons seeking to responsibly re-enter society. From her base in Baltimore, Ifill emerged as a highly regarded national civil rights strategist and public intellectual whose writings, speeches and media appearances enrich public debate about a range of political and civil rights issues.
A critically acclaimed author, her book “On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century,” reflects her lifelong engagement in and analysis of issues of race and American public life. Ifill's scholarly writing has focused on the importance of diversity on the bench, and she is currently writing a book about race and Supreme Court confirmation hearings. Ifill is the immediate past Chair of the Board of U.S. Programs at the Open Society Institute, one of the largest philanthropic supporters of civil rights and social justice organizations in the country. Ms. Ifill is a graduate of Vassar College, and received her J.D. from New York University School of Law.
Who do you have on your SCOTUS candidate list?
All of this is wishful thinking, of course, but dreams can be turned into reality if we are willing to fight for them. We can do it if, you hear me—if—we take back the Senate in 2016. While much of the debate that goes on here and on other political blogs is about the presidential race, we cannot afford to ignore the Senate if we care about SCOTUS.
How can we make this a reality? I hope you'll join me in that discussion. Kyle Kondik over at Sabato's Crystal Ball took a detailed look at a strategy in Senate 2016: Sorting Out the Democrats’ Best Targets. Kondik focused on Illinois, Pennsylvania, and Wisconsin. Prognosticators at the Washington Post are talking about the 10 Senate seats most likely to switch parties in the 2016 elections.
All of this will have no meaning at all unless we are actively engaged in voter registration and GOTV efforts. Of particular importance in the days ahead is marshaling the Latino vote. Spearheaded by Donald Trump, Republicans are doing a bang-up job alienating and angering Latinos and other groups who have an interest in immigration issues. We need to find a way to make sure that anger registers at the ballot box.
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