Presidential Power &
The Supreme Court
June 20, 2008
LBJ Broke New Ground; Will the Next President Have a Similar Opportunity?
When he tapped Thurgood Marshall for the U.S. Supreme Court in the summer of 1967, Lyndon Baines Johnson made history: The great-grandson of an African American slave was nominated to join the nation’s highest court.
“Lyndon Johnson was tremendously proud of the nomination,” says USC legal scholar Mary L. Dudziak. “Johnson was focused on what the achievement would say to all the African American children in the land, what they could aspire to in their own lives.”
After the Marshall appointment, it would be another 14 years before another appointment of equal symbolism occurred: the nomination of Sandra Day O’Connor by Ronald Reagan.
In the past two decades, the nomination and confirmation process has been more about the politics of right vs. left than about reflecting the new diversity of America, says Dudziak, who sees the upcoming centennial of Marshall’s birth on July 2 as an opportunity to reflect on the politics and symbolism of Supreme Court nominees.
Dudziak’s new book, Exporting American Dreams: Thurgood Marshall’s African Journey, traces Marshall’s progression from civil rights attorney to a legal figure of international prominence who, among other achievements, crafted a draft bill of rights for Kenya, which in the early 1960s was transitioning into statehood after years of British colonial rule.
“Marshall had faith in law as a means of social change,” says Dudziak. “It came out of his experience trying to achieve social change in a context that was laced with violence. He believed that law had historically played a role in putting down African Americans through slavery and disenfranchisement — and that it was in part through law that equality would be achieved.”
Marshall’s faith was ultimately returned when he was confirmed by the U.S. Senate, despite the long shadows of prejudice and the social unrest of the period. Marshall said of LBJ, “I don’t see how he got it through, but he did,” notes Dudziak in her book. “This is a shining hour,” Sen. Mike Mansfield said when announcing the news to Johnson. “We have come a long, long way toward equal access to the Constitution’s promise.”
Will the next president of the United States have a chance to make history with a Supreme Court nomination? Dudziak says an obvious opportunity — the appointment of an openly-gay jurist to the court — could become a political battleground, as Marshall’s nomination was. But with more support for full inclusion of gays and lesbians, this milestone will eventually be achieved, she says.
Dudziak believes there is an opportunity for the next president to speak directly to the American public through the nomination process. “Either candidate might break barriers and make history with a court appointment,” she concludes.
Mary L. Dudziak is Judge Edward J. and Ruey L. Guirado Professor of Law, History and Political Science at the USC Gould School of Law. She is also a member of Princeton University’s School of Social Science Institute for Advanced Study. To read her blog about Exporting American Dreams: Thurgood Marshall’s African Journey, click here.