WASHINGTON — When Thurgood Marshall arrived at the Capitol for his Supreme Court confirmation hearing on a July day in 1967, the 58-year-old lawyer was the most celebrated legal advocate in the civil rights movement. He had braved death threats and successfully argued more than two dozen cases before the Supreme Court, including decisions that ensured Black voters could cast primary ballots in Texas and ended government-mandated segregation in public schools.
But that wealth of experience and proof of surpassing talent did not stop Strom Thurmond, the segregationist senator from South Carolina, from treating Marshall like a none-too-bright schoolboy, as he quizzed the judge for an hour with more than 60 arcane historical and legal questions dating from events in the 19th century.
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Who drafted the 13th Amendment? What was the name of the committee that reviewed the 14th Amendment in 1866, and who were its members? What was the objection to the first section of its original draft? Thurmond’s barrage of “gotchas” felt never-ending.
“I don’t know, sir,” Marshall replied again and again, as the senator pressed on.
The esoteric probing was Thurmond’s way of hinting that “Marshall wasn’t intellectually up to the job,” said Harvard Law School professor Mark Victor Tushnet, who clerked for Marshall and has written two books on him.
It was a strategy some other segregationist senators also deployed against Marshall at the time. And it’s one that, more than a half a century later, the first Black woman to be named to the Supreme Court may well face, too — though, likely, in an updated form. Thurmond’s unabashed racism has given way to something subtler, but no less insidious: The claim that a justice nominated in part because of his or her race is presumptively less qualified, that the bar must have been lowered.
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President Biden has yet to announce his nominee to the Supreme Court, but already his pledge to choose the court’s first Black woman has rankled some Republicans, with several far-right lawmakers and influential leaders suggesting that Biden is choosing diversity over qualifications, even though all of the women rumored to be on Biden’s short list hold first-rate legal credentials — the match or greater, certainly, of most recent white nominees. They’re calling his intention to pick a Black woman racist, “demeaning,” or even illegal.
“It’s offensive,” Texas Senator Ted Cruz said late last month. “Black women are, what, six percent of the US population? He’s saying to 94 percent of Americans: I don’t give a damn about you.”
The rhetoric raises the depressing prospect that Biden’s nominee could face a version of the ugliness Marshall stared down decades ago, and lays bare how little opponents of diversifying the federal bench have updated their playbook since then.
Much has changed about the United States and the confirmation process itself since Marshall was confirmed, and Biden’s nominee will not confront a Senate where many of its members are still openly arguing for segregated schools. But some obstacles to adding fresh voices to the Supreme Court have remained constant over its 233-year history: Women and people of color short-listed for the federal bench often find themselves passed over, and the handful who make it to the nomination process have tended to face higher scrutiny over their qualifications. Opponents’ arguments have tended to distort and obscure the biases and prejudice baked into a process that has resulted in 115 justices since the court’s founding in 1789 — all but seven of whom have been white men.
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“None of the men have been asked who does the laundry at their home — not that I have confirmed,” said Renee Knake Jefferson, a professor at the University of Houston Law Center, alluding to a question posed to conservative Justice Amy Coney Barrett by Republican Senator John Kennedy during her nomination hearing in October 2020.
Biden first promised to nominate a Black woman to the Supreme Court as he campaigned for president. It was an idea pushed for by South Carolina Representative Jim Clyburn, a key Democratic ally who saw it as a long-overdue step, and a way to energize Black voters. Within days of his inauguration, Biden sent out calls for candidates to nominate for federal judgeships, seeking to prioritize the need to bring demographic change and fresh perspectives to courtrooms across the country. Only 70 of all 3,843 federal judges ever appointed since 1789 — or 2 percent — have been Black women, according to the Federal Judicial Center, the federal judiciary’s research and education branch.
At the top of Biden’s list of potential picks for the Supreme Court are highly respected judges, including Ketanji Brown Jackson, 51, a former public defender and federal district judge who now sits on on the US Court of Appeals for the DC Circuit; US District Court Judge J. Michelle Childs, who has the loud support of Clyburn and Republican Senator Lindsey Graham; and California Supreme Court Justice Leondra Kruger. Another potential nominee is Sherrilyn Ifill, a law professor and president of the NAACP Legal Defense Fund whose legal path is most in line with Marshall, who was long the NAACP’s lead counsel.
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Not all Republicans have been opposed to seeing a Black female nominee. “Put me in the camp of making sure the court and other institutions look like America,” Graham told CBS’s “Face the Nation” last month.
But reaction, particularly from far-right lawmakers, has been negative. Some, like Senator Roger Wicker of Mississippi, have openly argued the pick would be a beneficiary of “affirmative action,” hinting that no one on Biden’s short list is qualified for the job.
Others have gone so far as to mount a preposterous cry of reverse discrimination. “I thought we were done with racism in this country — we should look at character, accomplishments, and the ability to do the job,” Georgia Representative Marjorie Taylor Greene told former Donald Trump adviser Steve Bannon on his podcast.
Such remarks forget our history. Biden is not the first president to promise to name a Supreme Court nominee from a certain demographic. Just weeks before Election Day in 1980, Republican President Ronald Reagan pledged to nominate the first woman to the Supreme Court, and the move was considered a victory for the feminist movement of the preceding two decades. At a North Carolina rally a day after the death of Justice Ruth Bader Ginsburg in September 2020, Trump also promised to fill her vacant seat with a woman — “a very talented, very brilliant woman.”
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Selection to the Supreme Court is by its nature a political appointment, and there are no hard and fast requirements on who can become a Supreme Court justice. “There is nothing written in stone that they even have to be a lawyer,” said Justin Hansford, a professor at Howard University School of Law and executive director of the Thurgood Marshall Civil Rights Center. “This is not the honor roll.”
Yet, senators who oppose the nomination of women or people of color to the bench often focus on a supposed lack of credentials to explain their animus. The court has only ever had five female justices: Sandra Day O’Connor, from 1981 to 2006; Ruth Bader Ginsburg, from 1993 to 2020; Sonia Sotomayor, who has served since 2009; Elena Kagan, who has sat on the bench since 2010; and Barrett, who was confirmed in 2020. It has only ever had two Black justices, both men — Marshall, from 1967 to 1991, and Clarence Thomas, from 1991 to the present.
Thomas, now a cornerstone of the Supreme Court’s right wing, characterized his confirmation hearing as a “high tech lynching” after senators permitted his former employee Anita Hill to testify that he sexually harassed her. Other women who had made similar accusations were not allowed to testify, and Thomas was confirmed shortly after.
President George H.W. Bush considered only two judges, both people of color, to fill the seat on the court that had been Marshall’s. He chose Thomas, he said, because he was the “best man” for the job.
“I don’t feel he’s a quota,” Bush said in announcing his pick, with Thomas at his side.
Trying out the “unqualified” argument against Marshall, a former federal appellate judge and lawyer who had racked up a dizzying number of civil rights wins in front of the Supreme Court, was patently ridiculous. But that didn’t stop some segregationist senators from trying.
Thurmond turned to a list of questions on the 14th Amendment — one of the post-Civil War amendments designed to undo the evils of slavery — drafted with the help of a consultant, Tushnet said. When Marshall could not name the lawmakers on the committee tasked with reviewing the 1868 law, Marshall later recalled in a radio interview that Thurmond had treated him like a “stupid guy” on the Senate floor.
Massachusetts Senator Ted Kennedy at one point had interceded, asking Thurmond to clarify his own question. “I thought rather than repeating the question maybe there was some other way that you could arrive at it,” Kennedy said, according to a transcript.
“I don’t think I can make it any plainer, if you know the answer,” Thurmond responded, prompting laughter from the audience and giving historians cause to believe that the senator didn’t know many of the answers to his own questions.
The Senate confirmed Marshall with a vote of 69 to 11.
The racism of Marshall’s era was explicit, and as the first Black justice, Marshall couldn’t just be a good lawyer, he had to be one of the best. Tushnet and other law professors have seen some strides in representation on the nation’s highest court since then. “You don’t have to be the most prominent lawyer in the country anymore, you can be good, and that is a good thing,” Tushnet said.
But in at least one respect, Marshall’s confirmation process was likely easier than the one Biden’s pick will face. Even as the nation was embroiled in a violent and bloody battle over civil rights, the Senate’s confirmation processes were less politicized than today’s overall, with most judges confirmed with large bipartisan majorities. Marshall also had the unwavering support of most Republican and Democratic lawmakers, who did not always agree on how to achieve racial progress, but saw it as a top priority for the country. As the court has slowly become slightly more diverse, the urgency seems to have dissipated, Hansford said.
“The public was so in the midst of the civil rights movement that people were more passionate about seeing a Black justice on an all white Supreme Court than they are now,” said Hansford said.
In at least one recent poll, 76 percent of respondents said they wanted Biden to consider “all possible nominees,” while only 23 percent preferred he “only consider nominees who are Black women, as he had pledged to do.”
Some activists are anticipating the nominee will face ugly racist attacks online, and are launching an online campaign and rally outside the Supreme Court to push back against them.
Zinelle October, executive vice president of the progressive legal organization American Constitution Society, said the commentary from some conservatives on candidates’ qualifications before Biden even names his nominee “speaks volumes.” But the flagrant unfairness has not tempered her excitement, she said.
“It makes quite a difference to see people who look like you thinking about these decisions, bringing their lived experiences to these decisions,” she said of Supreme Court cases that often disproportionately affect Black Americans and people of color. “The courts do not reflect the people that they serve, and they absolutely should.”