Thursday, November 17, 2005

Advice to Thurgood Marshall

Mark Graber

Dear Thurgood:

The girl and boys at Justice believe we have developed a plan to ensure an easy, uncontroversial confirmation process. Just play along with us and you’ll be on the Court in no time.

1. Our plan is to emphasize your nomination as alleviating the gross and unfair underrepresentation of justices from geographically small states. As everyone knows, the constitution was supposed to guarantee powersharing arrangments between the geographically large and small states, but because of overreaching by New Yorkers, Californians and others, William Brennan is the only member of the present court from a geographically small state. President Johnson will soon hold a nationally televised news conference where he will stress that your appointment is designed to remedy this historic inequity. Please highlight your Maryland roots at all opportunities and tell the press how proud your are to follow in the footsteps of Roger B. Taney, the last Supreme Court justice to represent that state. Your state may be small in space, but it is rich in legal heritage.

2. Remember that you joined the NAACP Legal Defense Fund only because of their great dental plan and the opportunities to travel to the rural south that were not being offered by more prestigious firms. As a junior staffer, any memo you may have written or case you may have litigated was at the behest of your superiors, so you should not be held personally responsible for any views you may have expressed. As director of the LDF, by comparison, your policy was to encourage independent action by junior staff attorneys (you always felt stiffled by Charles Huston). Hence, the responsibility of all actions taken under your leadership falls on those junior attorneys. Your job as leader was merely to provide a supportive environment for younger attorneys to hone their litigation skills. And continue to emphasize the dental plan, the frequent opportunities to travel to Washington DC, and the probability that you would develop the leadership skills necessary to sit on major corporate boards as your reasons for accepting leadership positions at the LDF. When pressed make the following analogy. No reasonable person would hold a president or cabinet member responsible after learning that their subordinates were torturing Vietnamese prisoners outside of Saigon. How then, could any reasonable person hold the LDF leadership in New York responsible for the decision of some hothead fresh out of law school to challenge a school choice plan in Jackson, Mississippi.

3. At every opportunity remind everyone that Plessy v. Ferguson is a superprecedent, that not being overruled, that case is entitled to great weight in your legal judgments. On capital punishment, we believe the best strategy is to claim that you have never thought or discussed whether that procedure is constitutional. If pressed on the capital cases you litigated, remind persons that you did so merely as a staff attorney and that they were always litigated on their particular facts. Indeed, confining cases to their particular facts is a particular wise strategy. Thus, while you can endorse the Supreme Court’s conclusion in Powell v. Alabama that the defendants were entitled to counsel, be clear that your opinion might have been different had counsel had less than 30 minutes to prepare a defense for six, as opposed to nine, defendants. Similarly, you should emphasize your belief that the due process revolution is only clearly stare decisis in cases involving southern police officers who physically resemble the character Rod Steiger played in In the Heat of the Night, and that the right of birth control announced in Griswold v. Connecticut might be limited to happily married couples.

4. There are several cliches you must remember to articulate in any answer of more than thre esentences. The first is your reverance for the constitution. The wit of man, you should point out, reaches its apogee with the electoral college, a life tenured judiciary, and the solomonic commandment that the right to a jury trial shall always be preserved whenever the value in controversy is more than twenty dollars. As a judge, you will never legislative from the bench. We are not entirely sure what this means, but we know it must be emphasized. Possible meanings include raising millions of dollars even though you are running unopposed, having an affair with a staffer, and bouncing checks. Don’t do these things or anything else someone decides is legislating from the bench. Remember you are a impartial referee, not like those zebras from Russia or the people who judge women’s figure skating. Come to think of it, maybe we should junk that metaphor.

5. Be sure to bring your family to the Senate confirmation hearings, but only the photogenic ones. Kids with braces are out. We will supply more attractive substitutes.

You have worked hard for this Supreme Court appointment. Just remember that, if successful, you will have a lifetime to fight for your heartfelt beliefs. Just not now.


Thanks, Mark.

I believe the only thing you missed was for TM to emphasize that all those Second Circuit opinions in Bill of Rights cases were results dictated by his deep and abiding reverence for Supreme Court precedent and the rule of law, and that they should not be read as indicating in any way how he might rule in similar cases should be be confirmed (except for when they should be read that way).

Great post, but wasn't Plessy already history by the time Thurgood was nominated?

Yes, in fact, he was at the party when Jack Greenberg won Brown v Board FOR Marshall's NAACPLDF. The story of the party, and of the genius of Thurgood Marshall, can be recalled in Charles Black's famouse tribute to Louie Armstrong.

If the late Charles Black had prepared an advice memo for nominee Thurgood Marshall, he would have told Marshall to tell the Senators how he lived his life and how he practiced law and that he did so proudly.

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