The first black woman appointed to the Supreme Court is likely to face questioning during her Senate hearing that would have been familiar to Thurgood Marshall, the first black man to serve on the High Court.
Justice Ketanji Brown Jackson’s nomination came to the Senate during what Senate Republican Minority Leader Mitch McConnell, R-Ky., has called a national crime wave.
“In the midst of all this, the soft-on-crime squad is squarely in Judge Jackson’s corner,” McConnell told the Senate.
Other Republican senators and some in the conservative media focused on Jackson’s work as a federal public defender, which included representing several men held without charge at Naval Base Guantanamo Bay. Jackson’s hearing before the Senate Judiciary Committee begins Monday.
Fifty-five years ago, a group of Southern senators, nearly all Democrats, used riots in cities across the country 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 one way or another on these vital issues will have untold consequences, and have already been, in my view, grave consequences on the crime situation,” said Sen. John McClellan, D-Ark. ., said during Marshall’s hearing before the commission.
The Supreme Court, under Chief Justice Earl Warren, had expanded the rights of those accused of crimes, in a series of decisions that included the famous Miranda case which limited police questioning of suspects without the presence of a lawyer.
But concerns about crime were inextricably linked to the issue of race, author Wil Haygood wrote in “Showdown,” his account of Marshall’s confirmation.
The only significant opposition to Marshall came from McClellan and the other ardent segregationists on the committee, Sens. Sam Ervin, D.C., James Eastland, D-Miss. and Strom Thurmond, RS.C. They were determined to make life difficult for Marshall, the famous civil rights lawyer. Marshall had argued Brown v. Board of Education in which the Supreme Court had prohibited official segregation.
The three previous Democratic presidential picks had been confirmed less than a month after their nomination by voice votes in a Democratic-controlled Senate.
The party still held the reins in the Senate in 1967 when President Lyndon Johnson maneuvered to create an opening in the Supreme Court, then sought to fill it with a revolutionary choice.
At the time, Marshall was a judge on the Federal Court of Appeals and served as Solicitor General, Johnson’s top Supreme Court attorney, at the time of his appointment to the court.
But Marshall’s stellar resume didn’t impress Southerners.
“They were pretty awful with Marshall. Thurmond, in particular, kept asking questions that sounded like trivial questions. “Tell us the names of the people on the committee who rejected the 14th Amendment,” said Carolyn Shapiro, a Chicago-Kent School of Law professor who has studied Supreme Court nominations. This amendment, which includes the 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 confirming Marshall to the appeals court and tried to block passage of the 1964 Civil Rights Act.
But they insisted that Marshall’s race had nothing to do with their opinion of his nomination.
Ervin explained his opposition to the Senate just before the final vote on Marshall. “I know that by doing this I expose myself to the easy, but false, accusation that I am a racist. I have no prejudice in my mind or my heart against a man because of his race. I loves men of all races,” Ervin said.
Instead, Ervin said, Marshall would be another “judicial activist” to cement Warren’s court leadership.
Sen. Robert Byrd, DW.Va., who would later recant his segregationist views, said it would be politically smart for him to support Marshall because Marshall was black. “Yet I consider it my duty as a senator, under the Constitution, not to let Mr. Marshall’s race influence my decision. Having reached the definitive conclusion that Mr. Marshall was white, I would vote against him. So I can’t let the fact that he’s a nigger make me vote for him when I wouldn’t otherwise,” Byrd said.
In the end, the Senate confirmed Marshall by a vote of 69 to 11, a healthy margin, but only a few votes beyond what was needed to overcome a filibuster at the time. Johnson and his teams lobbied to persuade Marshall’s other opponents not to vote, Haygood wrote.
Marshall was a target for people who did not apologize for their opposition to civil rights for black Americans, Shapiro said.
More than half a century later, a lot has changed, she says, but race remains at the center of American politics.
President Joe Biden pledged during the 2020 campaign to appoint a black woman to the Supreme Court for the first time.
Jackson, along with other Biden nominees, was asked if she had ever been in a riot. The senators also wanted her to tell them what role race plays in judging.
“We are in a moment of political division and a lot of it revolves around race,” Shapiro said.
Marshall endured five days of interrogation spanning three weeks. It took another month before his nomination reached the Senate floor. He was sworn in as a judge on September 1, 1967.
Democrats who control the Senate have a much faster timeline for Jackson. She will testify for two days, a common practice for High Court candidates these days. Barring a major misstep, Jackson could be confirmed before Easter.