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tv   Remembering Justice Thurgood Marshall  CSPAN  April 15, 2018 7:25am-8:31am EDT

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jus. kagan: my first conversation with the justice actually came before i met him. it was -- at that time he was -- he picked clerks without interviewing them. he had some form of clerks that did his election. i had been through their process, and he decided to make me a job offer. and he called me. it was the summer after i graduated from law school. he called me and, i remember the call came into the longer view office, and they had to find me and get me and i came back and found a phone. and finally got him on the
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phone, and he said, so you want a job? and i said, i would love a job. and he said what, you already have a job? [laughter] jus. kagan: and i was like, oh my gosh, he didn't hear me. i said no, no i really, i just said i would love a job and i want this job and i don't have a job. i don't know if you already have a job -- [laughter] jus. kagan: this went on three or four times before he figured it out and he took pity on me or i am not sure which happened first. but the only other thing i remember about that conversation before he hung up the phone was he said, i hope you like writing dissents. [laughter] jus. kagan: and we did write our share of dissents that year. judge ginsburg: i was in the office when he played that on
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another replay. [laughter] judge ginsburg: so what about your first impression? judge engelmayer: similar phone call without the already you have a job, but you still want the job? he said you got it, then get ready to write dissents, then he got off the phone. i was a summer associate studying for the bar, and this all happened in maybe 35 seconds. there is this quality of, somebody just pulled a prank on me. i don't know if this happened. instead the next hour trying to figure out where you go to confirm thurgood marshall has just made you a job offer? [laughter] prof. kennedy: i had a similar telephone call. i remember the first time i met justice marshall face-to-face. i was very nervous about it, very nervous because -- the
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reason i was, it was a big deal anyway. a justice, someone you will work for. but it was even bigger than that for me because i had heard about thurgood marshall all my life. i third -- i heard about thurgood marshall all my life because my father in columbia, south carolina went to see justice marshall argue a case, rice versus elmore. he was one of the last of the white primary cases. and throughout my childhood, i heard my father talk about the importance of that case for him. my dad didn't really, didn't know what the legal issue -- the state action issue, but he didn't pay attention to that. the thing my father talked about over and over and over again was
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that the judges in the courtroom called thurgood marshall mr. marshall. and the reason why that was so significant is that because of jim crow etiquette, black men were not referred to as mr.. if you were a black physician, you might be called dr. so-and-so. if you were a black minister, you might be reverend so-and-so, but typically black men did not get the honor of mr., and it was a sign of how distinguished thurgood marshall was that the judges and the other lawyers called him mr. marshall. when i heard about that all the time growing up. so with that backdrop of course, it was a tremendous honor.
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jus. kagan: was it part of why you became a lawyer? prof. kennedy: in part, sure. again, i am sure it influenced my brother. i have an older brother who is older by a year. but we heard about, we heard about that argument. 100 times. judge ginsburg: i don't know whether it is one of the books, but there is a story that when the justice was practicing in his early 50's and he needed to see the chief justice. the chief justice was not to be found. but he knocked on a door in the hotel, a hotel in connecticut with big conventions, and
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anyway, big hotel there. knocks on the door. jus. kagan: mayflower. judge ginsburg: somebody had given him a tip, and there was the chief justice. he was playing poker. he was playing poker with president truman and two other men. i don't know who they were 30 went over to the chief justice and opened up this paper and must have had an affidavit on it because the chief justice looked up and said, mr. marshall, is all of this true? he said yes. signed the paper, left. never noticed that it was the president in the room. [laughter] judge ginsburg: never said anything to him or if he doubted -- did notice, didn't say anything. [laughter] jus. kagan: a little bit more informal back then. judge engelmayer: i remember him telling that story, saying if you have the guts to open that
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door, i have the guts to sign it. judge ginsburg: much better. thank you. [laughter] judge ginsburg: and a first impression when you finally met him? prof. kennedy: he was, you know, he was a large man, and very imposing. i think nowadays sometimes you know the views you get of an avuncular, you know, completely welcoming he was a top boss. -- welcoming. he was a tough boss and intimidating. and he definitely laid down how he wanted things done. and you knew how he wanted
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things done, and you paid attention. so i made from the very beginning, from the get-go with me for any event, i was very attentive to him. and over time i suppose the intimidation went away, but i always found him imposing. judge ginsburg: i think it was a combination of his physical stature, manner, and just knowing him as a historical figure essentially. i think it was that that was intimidating, or at least overwhelming at first. jus. kagan: go ahead. judge engelmayer: he -- as intimidating as he was, i think back also on how accessible he was in the sense that he really understood what he was -- you really understood as his clerk what he was thinking about, cases, historical events he was recounting.
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in the left -- roughest language and most exquisite language would tell you that heroes, the villains, what he thought about the advocacy. we had just seen -- he would share views about colleagues. he read us allow the letter. he was about to read into the chief justice on the occasion of the annual holiday party which -- my cohorts and i have a copy of this, essentially the following, dear chief, as usual i will not attend the annual christmas party. i still believe in the separation of church and state. so he was letting us into the tent. as imposing as it was, i appreciate as well that he gave us access to his take on just about everything. jus. kagan: you know, he cared a lot about what we thought about things. he listened to us and asked us questions.
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there was a real dialogue between the clerks and the justice, but gosh did he know who was boss. sometimes you would get this treatment of, he would point over to his wall where there was an omission, and he would say now what is over there? can you take a look? whose name is on that commission? [laughter] jus. kagan: and then he had this other -- sometimes people would say, well you have to do any of these things. you have to, in that case i told you before, you have to vote for mr. torres. he was a there are only two things that i have to do, stay black and died. [laughter] jus. kagan: he didn't repeat stories, but that expression you repeated a lot. prof. kennedy: he had another one that went along with that. i remember once arguing with him about a case, and he said thank
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you very much and sort of put his hand up. let me try again. it is a couple times, then finally i said, thurgood, let me say, two years ago you said this. and if you go the way that you want to go, that you are proposing to go, you will be completely contradicting what you said two years ago. then he looks at me, and he says, do i have to be a damn fool all my life? [laughter] judge ginsburg: before i forget, i want to talk about -- as many as there were, i never heard one in which he was the hero. it was just what happened. jus. kagan: you have to look it
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up afterwards to find out. judge ginsburg: he was not self-aggrandizing in any way. but i think he very much wanted to pass on to us and ultimately well beyond us a real sense of what it was like for him. many years later -- he did sit down with juan and talk about a lot of things. he had not talked about them for publication before. i thought the only thing, the only jarring note in that whole book was the subtitle of the book. it was thurgood marshall, american revolutionary. revolutionaries don't follow the rules. revolutionaries were out in the streets, and he had no affection for people out in the street. none. jus. kagan: i am sure randy has some thoughts on this with his relationship with the civil rights movement generally. prof. kennedy: well, it was a
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complex one. on the one hand he was mr. civil rights, and over a long time, through just extraordinary work, amazing diligence, amazing persistence along with extraordinary skills, created the groundwork for the civil rights revolution. at the same time, he was, he viewed the world very much through a lawyers lens. his way of doing things was to attack through the courts what you didn't like, have those things invalidated, and after they were invalidated, that he was not a fan of direct action. and there was tension i think. it is documented.
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there was real tension between him and the students who were the people who engaged in sit-ins. there was tension between him and martin luther king jr. there was tension. he respected them, and they respected him, and to move the world in a way that the champions of the civil rights movement moved the world, hugh needed all sorts of people. you need a division of labor. you needed people who saw things in different ways and pushed in different ways. but yeah, it was a complex relationship with some of the other members of the, of -- champions of racial justice. judge ginsburg: division of
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labor reminds me, there was one among the clerks in my years -- did you have anything like that? a division of labor among the clerks? jus. kagan: what was it? judge ginsburg: bill bryson took all the criminal and criminal procedure cases. jus. kagan: served him well. judge ginsburg: karen took all the civil rights and related, anything related cases, and i got what was left. jus. kagan: [laughter] judge ginsburg: so that was international case on securities and labor and, there was, there was never a moment in which -- never a matter in which we had any disagreement or had to work out exactly what he wanted to say because we were completely on the same wavelength. he was -- in that respect he was a conservative person. he wasn't trying to upset the securities laws [laughter] or make waves just to make waves. judge engelmayer: the way he did it with us, he made it clear
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early on that we were to be looking over one another's shoulders. he tells us early on if i am mad with you, i am met with all of you. so we would look over one another's work. we were particularly conscious of his -- and he was completely intolerant of lateness. you could not be late about anything. one minute was too late. so you know, he sort of had a collective punishment. one other thing i remember about the year, and it had to do also with capital punishment. on the night of an execution, there would always be one clerk who had to stick around for anything late-breaking.
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and some of the time, when everything had been done, the person who had to stick around had to call up the justice at a specific moment. i did a bunch -- it a bunch because me and my fellow clerks -- they were married. i was unmarried. i volunteered to stick around. nobody was looking for me. but on those evenings when i would call, i would pray that mrs. marshall -- [laughter] prof. kennedy: i would be praying that mrs. marshall wouldn't be home because it made a big difference. the difference it made was this. if mrs. marshall answered the phone, the justice would come on, and he would be very civil. he would be very nice, very light, very civil.
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jus. kagan: [laughter] prof. kennedy: if she did not answer the phone, and it got to him first, it could be a very tough conversation. [laughter] judge engelmayer: i remember about the capital cases that charged to us not merely to execute the, the formal dissent based on his categorical view. he said to us, i want you to calm each of these cases -- comb each of these cases to see if there is ground to get this reversed. this was not an abstract point. he wanted to save a life. those phone calls also came with a question. have you dug into this? is there something specific we can say? jus. kagan: this is one of my most vivid memories. for many reasons, the capital punishment played an even more significant role in the court than it does today.
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first up, there were more executions, so you know, a week, there would usually be several executions of week at that time. -- a week at that time. there were fewer procedural bars, so a lot of what we do now is people on death row,, and there is no way to cure their merits -- death row, up, and there is no way to hear their merits. there are rules now that many, many more claims are procedurally barred than they were then, and the third thing was the death penalty law was much less relative. you didn't have -- there were a lot more open spaces in terms of what was allowed and not allowed. they were really quite numerous, these executions. it was a serious issue that remained open, and you could get to it. randy talked about dissent and
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denial in one area of the law, but i remember it wasn't just the typical like saying that he and justice brennan used to talk about. how did it again -- go again, the one-liner? >> [indiscernible] jus. kagan: yeah. but we spent, we drafted so many dissents from denial and death -- in death penalty cases i would be surprised if we didn't do 25 of them, 30 of them in a year. judge ginsburg: i must've been there. either i was completely oblivious or i was there during the interim when there were no penalty cases, 74 and i can 75. does that sound right? jus. kagan: yeah. judge ginsburg: thank goodness. chilton, where are you? how much time to we have? what do we have? >> [indiscernible]
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judge ginsburg: that is fine, but why don't you just tell us your favorite recollection of the year, not just in chambers but the year that you spend here? jus. kagan: somebody else start. judge engelmayer: this is an outside of chambers memory. holiday time late one day, he told us that he was going to take us out to lunch the following day at a seafood restaurant. and we get into a car. we go to a seafood restaurant in anacostia. we walked in, he is leading the way. as thurgood marshall walked into the packed dining room, people realized, then slowly one by one everybody, they just got up and just stood for a minute. they stood for maybe 60 seconds, then he nodded and everyone sat down.
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but it was a moment that allow you to see him the way the world saw him and reminded this was not your ordinary supreme court justice. this was a working for a living legend. and there were moments with elevator operators or tourists who bumped into him. that moment out in the world and suddenly you realize, put aside what we have been talking about and in the conference room, forget about storytime and the individual cases. this is the magnitude of the man. this is what he is meant to our country. and we saw it again after he passed away and they had the honor of the guard. we took an hour shift in the middle of the night as people streamed in. and people were overly, overly emotional, people bringing copies and leaving them. you could sense the gratitude and to him and just the enormous spacey had occupied -- enormous space he had occupied.
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i had that opportunity to look through another's eyes. prof. kennedy: i guess i would echo that and say probably the most enduring snapshot i have of that year was on the very last day. because on that day i mentioned earlier my father, my father came to the court that day. and the justice was very nice to my dad. my dad talked about rice v. elmore and seeing him. and they had a very nice talk. and these two people whom i revere, the memory of that is a
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deep memory with me. jus. kagan: i also remember when my parents came to the court, and he was nicer to me that day than he was before or since. [laughter] jus. kagan: and that was the only day i knew that he liked me. [laughter] judge ginsburg: well, thank you all for being here for this hour. i hope there will be many more in the future with others carrying these stories forward as long as we can. thank you. jus. kagan: it was a privilege. [applause] >> my name is jim o'hara, and i'm a member of the board and of the executive committee of the supreme court historical society. the society is deeply honored to be the host of tonight's
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national heritage lecture. a few observations before the evening is over. first, justice kagan, judge ginsburg, judge angle meyer, professor kennedy, thank you for your insights and stories of your times with justice thurgood marshall. this has been a warm and wonderful evening, and i am honored to have been part of it. the national heritage lecture is sponsored each year by the supreme court historical society. the white house historical society, and the united states cap able historical -- capitol historical society. since 1991 when justice anthony kennedy delivered a rousing talk on president roosevelt's 1937 court packing plan, the three organizations have rotated hosting duties each year.
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this evening's national heritage lecture is of course a celebration of justice thurgood marshall's 50 years after his ascension to the supreme court. the society and all of us here are deeply honored to be joined this evening by his wife, cecelia marshall, his sons thurgood marshall junior and john marshall, his daughter-in-law jean marshall, and his grandson edward patrick marshall. thank you so much for being here and honoring us with your presence. [applause] james: thank all of you for coming and please join us in the
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receptions in the east and west conference room, which are directly to your right as you leave the board room tonight. tonight we will be serving two recipes from justice and mrs. marshall that are featured in the society's most recent publication, table for two. we are serving justice marshall's maryland crab soup and mrs. marshall's mango bread. copies of tables for nine are available at the society's gift shop along with many other books and many other gifts. the gift shop is on the ground floor of the court and will remain open throughout the reception tonight. ladies and gentlemen, the 2018 national heritage lecture is now adjourned. [applause]
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[captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2018] interested in american history tv question mark visit our website. schedule,ew our tv preview upcoming programs, and what lectures, archival films, and more. american history tv at c-span.org/history. as a follow-up to the reason hearings with facebook ceo mark zuckerberg, the communicators look at the privacy issues raised by the spread of personal with theacebook president and ceo of the center for democracy and technology and the attorney and former chair of
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the federal election commission. >> all of the politicians who asked mark zuckerberg questions for 10 hours. everyone of them has been using ed from american citizens to communicate with citizens, to build mailing lists, to target voters. and a lot of this is for good reasons. >> the issue for me is how data is collected, used, procured, and processed by the companies which engage in the online world in a very comprehensive and permissive way. >> watch the communicators monday at 8:00 eastern on c-span two. now, live, we continue our series 1968, america in turmoil. with a look back at conservative politics 50 years ago. perceived liberal excesses and disenchantment with the government gave rise to the political ways.
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the resurgence of richard nixon and a republican presidential victory. ronald reagan made his debut as a presidential candidate, or shadowing the conservative relation to come. mary,ests are robert editor of the american conservative, and author of where they stand, the american presidents in the eyes of voters and historians. george washington university professor in the graduate school of management. he is the author of the right moment, ronald reagan's first victory, and the decisive turning point in american politics. nixon there is a richard accepting the republican nomination for president at the gop national convention in miami beach.

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