Marshall Faced 'Em Down

Clarence Thomas won't be the first black nominee to the Supreme Court to undergo tough questioning in confirmation hearings

STROM THURMOND of South Carolina, the ranking Republican on the Senate Judiciary Committee, might reflect with irony on his role as one of Clarence Thomas's chief defenders. Thurmond will stand up for the black Supreme Court nominee in the confirmation hearings that begin tomorrow.Nearly a quarter century ago, Thurmond and other Southern senators bitterly opposed Thurgood Marshall, the first black nominated to the Supreme Court. Their questions regarding Marshall's judicial philosophy barely concealed their determination to discredit him. Nonetheless, Marshall testified for less than seven hours in July 1967. Most senators on the committee made brief appearances; more than half never questioned the nominee. The media circus that now accompanies Supreme Court confirmation hearings was notably absent. Marshall's nomination also lacked the blatant lobbying that has become ritualized with nominees since 1968, with an array of interest groups anxious to appear in person and on the record. The Liberty Lobby was the only organization to send a spokesman, who denounced Marshall's alleged ties to communists. The Judiciary Committee traditionally had treated nominees with deference. Since Felix Frankfurter's nomination in 1938, the committee largely avoided substantive questions, and implicitly accepted Frankfurter's contention that nominees must avoid commenting on specific issues lest they appear to have prejudged any matter. The growing dissent toward the Warren Court sharpened demands for closer scrutiny of Supreme Court nominees. Southern congressmen, anxious to maintain white racial supremacy, joined with law-enforcement officials who deplored the "Miranda" ruling and others that allegedly offered unfair advantages to criminal defendants. When Lyndon Johnson nominated Marshall in 1967, assaults on the Warren Court had become commonplace. And now, the president had chosen a black man, one who had successfully argued for the overthrow of official segregation. Southern senators had been passive toward most previous nominees, but, as John McClellan (D) of Arkansas warned, "The time has come when I can no longer be silent and not inquire into the philosophy of those who are nominated." MARSHALL carefully refrained from any extended debate with the senators. When asked about a particular issue, he merely replied that it might be a subject for future litigation and he could not prejudge the matter. Such vagueness - evasiveness, his opponents surely would have said - only exasperated his interrogators. More than 90 percent of the questions came from the Southerners - McClellan, chairman James Eastland (D) of Mississippi, Sam Ervin (D) of North Carolina, and Thurmond. Eastland desperately tried to pin Marshall down as a radical. When he asked if Marshall would decide cases according to his sense of right and wrong, the nominee bluntly answered that "my own sense of right and wrong is the Constitution itself." Was Marshall prejudiced against white people in the South? "Not at all," he answered. Would he give the South "fair and square treatment?No question whatsoever." Inevitably, Eastland turned to his last refuge: red-baiting. He noted that Marshall once used a document also reprinted in a work by the "leading Communist theoretician in the United States." More than anyone, Strom Thurmond, the original Dixiecrat and, in 1967, a recent convert to the Republican Party, deliberately sought to embarrass Marshall. Thurmond raised arcane questions concerning the history of the 13th, 14th, and 15th Amendments, but soon revealed that he had more in mind than fighting the Lost Cause. He asked Marshall whether the 13th Amendment's provision against involuntary servitude abolished all compulsory labor for the benefit of a private person. The query was hardly benign. Thurmond wanted a recognition that federal or state legislation requiring anyone to render services to all persons, such as restaurant service, was a form of involuntary servitude. Marshall refused to concede that premise. Marshall met Thurmond's hostility with ill-disguised disdain. Thurmond cited an 1850 statement by a South Carolina senator that "free men of color" in his state were not citizens but had "high civil rights," including the right to acquire property and the protection of their property rights. That, Thurmond boasted, showed that South Carolina was a "national leader" in granting civil rights before the Civil War. Marshall knew his history: "Well, I don't agree that at that time South Carolina was the leade r in giving Negroes their rights." The opposition was futile. At the end of August, the full Senate confirmed Marshall, 69 to 11, with 10 Southern Democrats and Thurmond voting no. Marshall's record as a crusading lawyer against desegregation, his nearly four years on the US Court of Appeals, and two years as US solicitor general hardly made him a "stealth" candidate. His views on law, courts, and social issues were easily accessible. So, too, were Robert Bork's in 1987. Unlike Marshall, Bork refused to let the record speak for itself, and proved the adage that it takes two to make a fight. That cost him dearly. The Marshall nomination is far removed from Thomas's. The two men, a generation apart, differ profoundly in their personal histories, the history that formed the context of their lives, and in their ideological approach to the issues of race. What also may be different is the Senate's insistence on inquiring into Thomas's judicial philosophy and views on pending issues. It remains to be seen whether Thomas will follow Marshall's or Bork's lead.