WASHINGTON – The first black woman to be nominated for the Supreme Court will likely face questioning at her Senate hearing that would have been known to Thurgood Marshall, the first black man to serve on the Supreme Court.
Judge Ketanji Brown Jackson’s nomination was brought to the Senate amid a national crime wave led by Senate Republican Minority Leader Mitch McConnell, R-Ky.
“In the midst of all this, the criminal investigation brigade sits right in Judge Jackson’s corner,” McConnell said in the Senate.
Other Republican senators and some in the conservative media have focused on Jackson’s work as a federal public defender, which has included representing several men held without charge at the Guantanamo Bay Naval Base. Jackson’s testimony before the Senate Judiciary Committee begins Monday.
Fifty-five years ago, a group of Southern senators, almost all Democrats, took advantage of urban unrest and American fears of crime to try to derail Marshall’s nomination.
“I know there is a crisis in this country, a crime crisis. And I know that the Supreme Court’s philosophy on these vital issues will, one way or another, have immeasurable consequences and I think it’s already having serious consequences for the crime situation,” Sen. John McClellan, D-Ark. said during Marshall’s hearing before the committee.
The Supreme Court, led by Chief Justice Earl Warren, had expanded the rights of those accused of crimes in a series of decisions, including the famous Miranda case, which restricted police questioning of suspects without the presence of a lawyer.
But concerns about crime are inseparable from racial issues, wrote author Wil Haygood in Showdown, his account of Marshall’s confirmation.
The only notable opposition to Marshall came from McClellan and the other ardent segregationists on the committee, Sens. Sam Ervin, DN.C., James Eastland, D-Miss. and Strom Thurmond, RS.C. They were determined to make life difficult for Marshall, the famous civil rights attorney. Marshall had argued in the Brown v. Board of Education case, in which the Supreme Court outlawed official racial segregation.
The previous three Democratic presidential elections had been confirmed by oral votes in a Democrat-controlled Senate within a month of their nomination.
The party still held the reins of the Senate in 1967 when President Lyndon Johnson maneuvered to create an opening of the Supreme Court and then attempted to fill it with a landmark decision.
Until then, Marshall was a judge on the federal Circuit Court of Appeals and, at the time of his appointment to the court, was serving as Attorney General, Johnson’s chief attorney on the Supreme Court.
But Marshall’s brilliant resume didn’t impress Southerners.
“They were pretty awful for Marshall. Thurmond, in particular, kept asking questions that were like trivia questions. ‘Tell us the names of the people on the committee who rejected the 14th Amendment,'” said Carolyn Shapiro, a professor at the Chicago-Kent School of Law who has researched Supreme Court nominations. This amendment, which includes due process, equal protection, and citizenship clauses, was passed by Congress in 1866 and ratified two years later.
The same senators had previously voted against Marshall’s confirmation in the Circuit Court of Appeals and sought to block passage of the 1964 Civil Rights Act.
But they insisted that Marshall’s race had nothing to do with their view of his nomination.
Ervin declared his opposition in the Senate just before the final vote on Marshall. “I know that in doing so I am exposing myself to the simple but false accusation of being a racist. I have no prejudice in my mind or heart against any man because of his race. I love men of all races,” Ervin said.
Instead, Ervin said, Marshall would be another “rights activist” to solidify Warren Court’s direction.
Senator Robert Byrd, DW.Va., who later recanted his segregationist views, said it would be politically wise for him to support Marshall because Marshall is black. “Nevertheless, I consider it my duty as a Senator under the Constitution not to let Mr. Marshall’s race influence my decision. Having reached the final conclusion that Mr. Marshall was white, I would vote against him. I cannot, therefore, let the fact that he is a Negro influence me to vote for him when I would not otherwise,” Byrd said.
In the end, the Senate confirmed Marshall by a vote of 69 to 11, a healthy margin but just a few votes above what was needed at the time to overcome a filibuster. Johnson and his teams worked hard to persuade fellow Marshall opponents simply not to vote, Haygood wrote.
Marshall was a target for people who didn’t apologize for their rejection of civil rights for black Americans, Shapiro said.
More than half a century later, much has changed, she said, but race remains at the center of American politics.
President Joe Biden vowed during the 2020 campaign to bring a black woman to the Supreme Court for the first time.
Jackson, along with other Biden nominees, was asked if she had ever taken part in a riot. The senators also wanted her to tell them what role race plays in the judgment.
“We’re in a moment of political division and a lot is about race,” Shapiro said.
Marshall endured five days of questioning spanning three weeks. It took another month for his nomination to reach the Senate. He was sworn in as a judge on September 1, 1967.
Democrats who control the Senate have a much faster timeline in store for Jackson. She will testify for two days, which is standard practice for Supreme Court attorneys these days. Barring one major misstep, Jackson could be confirmed before Easter.
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