68 N.Y.U. L. Rev. 237 (1993)
Thurgood Marshall's Struggle

handle is hein.journals/nylr68 and id is 255 raw text is: THURGOOD MARSHALL'S STRUGGLE
I had been clerking for Justice Marshall for two months when he
called me to his study and asked me to read the materials concerning his
nomination to the United States Court of Appeals for the Second Circuit.
Within an hour, the Supreme Court Library had sent me a thick volume
containing the transcripts of Marshall's confirmation hearings before a
subcommittee of the Senate Judiciary Committee and of the debate on
the Senate floor.' Almost nine years later, I still feel a mixture of anger
and sadness when I recall what I read-anger because the most signifi-
cant lawyer of twentieth-century America was subjected to such humilia-
tion, and sadness because, as late as the 1960s, key members of the
United States Senate found it politically advantageous to publicly display
such gross intolerance.
Thurgood Marshall was nominated to the Second Circuit by Presi-
dent Kennedy on September 23, 1961. Congress adjourned four days
later without taking any action on the nomination. Marshall then re-
ceived a recess appointment on October 5 and took his oath of office on
October 23,2 becoming the second black federal circuit judge in the his-
* Professor of Law, New York University. I served as Justice Marshall's law clerk during
the 1984 Term. I have more than the usual share of debts. I am grateful to the Honorable
Nicholas deB. Katzenbach for sharing with me his recollection of the events; to the Honorable
Wilfred Feinberg, the Honorable Gregory Kellam Scott, and Professors Vicki Been, Christo-
pher Eisgruber, Pamela Karlan, William Nelson, Burt Neuborne, Richard Pildes, and Howard
Venable for their comments on an earlier draft; to the Public Services Department at the Li-
brary of the New York University School of Law, in particular to Carol Alpert, Ronald
Brown, Elizabeth Evans, Gretchen Feltes, Leslie Rich, and Jay Shuman, for help that went
well beyond the call of duty; and to Anthony Crowell, Washington College of Law, American
University Class of 1997, and Frank Ferrell, Harvard Law School Class of 1995, for their
research assistance. Of course, I am solely responsible for any errors that might remain. A
prior version of this Essay was presented at a Brown-Bag Lunch and a Legal History Collo-
quium at the New York University School of Law. The generous financial support of the
Filomen D'Agostino and Max E. Greenberg Research Fund at the New York University
School of Law is gratefully acknowledged.
I The recent biographies of Marshall deal with his appointment to the Second Circuit
fairly summarily. See, e.g., Michael D. Davis & Hunter R. Clark, Thurgood Marshall: War-
rior at the Bar, Rebel on the Bench 235-40 (1992); Carl T. Rowan, Dream Makers, Dream
Breakers: The World of Justice Thurgood Marshall 279-81 (1993). The bulk of this tribute is
based on the review of primary historical materials that previously had not been examined.
2 Recess appointments for judicial positions were far more common in the 1950s and
1960s than they are today. For example, Chief Justice Earl Warren and Justice William Bren-

Imaged with the Permission of N.Y.U. Law Review

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