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tv   Justice Thurgood Marshalls Legacy  CSPAN  February 11, 2017 9:59am-12:02pm EST

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if any of you were interested in the topics discussed, all three of their books are available in the museum store today. they will be in the lobby to talk more, signed the books, and interact with us. please if you have any more questions, they will be here in the lobby. thank you all for coming today. thank you. [applause] [captions copyright national cable satellite corp. 2017] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit] >> you are watching american history tv. follow us on twitter for information on our schedule and to keep up with the latest industry news -- history news.
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tv,ext on american history former law clerks to supreme court justice thurgood marshall examine his legacy. he served from 1967 to 1991. panelists, including supreme court justice elena kagan, remember that time working for the first african american member of the court and discuss his opinions on landmark cases. we recorded this at the u.s. second circuit court of appeals in new york city. it is about two hours. >> today is a special day. in theus are here thurgood marshall u.s. courthouse to celebrate an american hero, thurgood
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marshall, whose memory this magnificent courthouse is dedicated, in this courthouse where he served on the second circuit. we welcome our c-span audience to our proceedings as well. our gathering is at the intersection of two initiatives which have engaged the court of the second circuit the last two years. initiatives which i had the privilege of proposing and which have taken life because of the creative and dedicated work of remarkable colleagues of the bench bar and our court staff. the one hundred 25th anniversary commemoration of the second circuit court of appeals, wonderfully chaired by richard wesley, has several components, including scholarly volumes and public events, as we take stock of our past to better understand how our work has evolved to
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better meet the challenges of the present and future. the second initiative, justice for all: courts and the community, is a project all of the courts of the second circuit, a project through which a wide range of ongoing civic/ education activities seeks to bring courts and communities closer together to promote public understanding of the courts and to help courts better understand the communities we serve. we will the new year, be going live with our civic education website which can be you will be able to find on the court of appeals website. and we invite you to explore it. thurgood marshall's life is very much a part of both of these initiatives. as to our court's history, in 1961, president kennedy
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appointed thurgood marshall as the circuit judge on this court where he sat in this very court until 1965 when president johnson appointed him first as solicitor general of the united states and then as an associate justice of the united states supreme court, the first african american appointed to that , in at court in our land career on the court that spanned 32 years. in this building, justice marshall occupied chambers on the 20th floor. oursuccessor in that space, alsoed wilford kleinberg occupied that space succeeding justice marshall. years, judge feinberg had the opportunity to move to bigger quarters as he gained in seniority. but he never left justice marshall's chambers. as he said to me, if it was good
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enough for thurgood marshall, it is good enough for me. second circuit judge marshall wrote 98 majority opinions, eight concurrences, and 12 as our staff attorney noted in his article for the 125th anniversary collection of biographies of judges of the second circuit published by the cornell law review. in the last few years, we have taken steps to assure that thurgood marshall's legacy is appropriately honored here in this courthouse. two years ago, gilbert king, ,ulitzer prize winning author delivered the lecture of our court about marshall's courageous dissent in 1949 -- defense in 1949 of the four young black men accused of
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raping a white woman. in our lobby, as you no doubt observed, everyone who enters this building will see the photographs of various aspects of justice marshall's incredible career. in development with deep appreciation to circuit judge ralph winter and southern district judge paul engelmayer, both marshall clerks, and our terrific library team, is an exhibit about the extraordinary life and times of thurgood is a courageous civil rights leader who worked tirelessly to rid this country of the scorch of segregation and racism. as the executive director of the naacp legal and education defense fund, is a plague is attorney in brown v board of education, as solicitor general, as a jurist on the second circuit and on the supreme court, you will be able to see the videos and here thurgood
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marshall's voice arguing in the supreme court. you will have a sense of the which on the world's with he interacted. students will be able to explore further the legacy of thurgood spring wehen this inaugurate on the fifth floor of this courthouse a state-of-the-art learning center, a civic education initiative. and you will be able to see in permanent ways the life of thurgood marshall. that is a project which i cochair with judge victor marrero of the southern district of new york. today, we are graced by representatives of the marshall family. jr.,on, thurgood, thurgood's wife, and his grandson. iraqgreat thanks to
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kleinberg, we have an we have his-- former clerks. the program we are about to witness consists of a stellar assemblage, many of them are friends of mine of long-standing who took time from their busy schedules to participate and who i think most warmly. elena kagan, a supremely talented and brilliant supreme court justice, like her former boss, also a former solicitor general, and before that the dean of the harvard law school. a renowned scholar of public policy. the director of the law institute and former dean of the nyu school of law and leading expert on environment to law. iskant, aiscount -- d highly regarded litigator. sheryll cashin, a distinguished
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scholar of social policy. and judge paul engelmayer, a superb judicial colleague of the southern district of new york. without further delay, i turn the proceedings over to judge wesley who has magnificently overseen this 125th anniversary celebration. judge wesley. [applause] judge wesley: three seats left. [laughter] i have to say, i am a little nervous standing in the well with such a distinguished panel. i am glad i have not been a lawyer for 30 years arguing. i don't know how i would fare with the group i am facing. a bit of administrative staff.
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please turn off your cellphones. please turn off your cellphones. if a ring, i will be very unhappy -- if a ring, i will be very unhappy. thank you for your kind introduction. circuit the second result present a series of programs during the 2016-17 term to commemorate the 105th anniversary -- 125th anniversary of this great court. to that and, court personnel and lawyers were appointed to plan a number of events and publications that would tell the story of the second circuit as reflected in its jurisprudence, its impact on the cultural and economic climate of our nation, and the lives of the judges who have labored here. the names of those folks who have served on that committee are on the back of your program. today's panel discussion is the fifth in a series of programs planned by the committee and
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executed through the hard work of the court family and its friends. months, courtw personnel will reenact several famous appeals heard at the court. a distinguished scholar will deliver a lecture on the memorable first amendment case. a panel of lawyers and judges will explore the circuit's relationship with the state high court cousin with regard to certified question procedures. and much, much more. a copy of the calendar of events was given to you and is available at the registration desk and also available on our website. today's program focuses on a man who during his time before he came to the bench played an active and vital role in the fight for equal justice for african americans during the 20th century. i suspect many americans could tell you thurgood marshall was the attorney who successfully
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argued brown versus fortune education -- board of education. but i fear a few have a sense of marshall as an historic figure. i confess i was among them until magnificentrd's book, "simple justice." recently, gilbert king in his gripping book, has also pulled yths of the past to give us a sense of the danger he faced fighting racial injustice and prejudice. marshall has connection to this court. he served here for four years before being appointed solicitor general by lyndon johnson in 1965 and later to the supreme court in 1967. 1967, a great year for me. that was the year i graduated from high school.
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makes me feel old now, to be honest with you. following the supreme court appointment, he became the circuit justice for the second circuit. of aircuit justice is sort judicial godparent for the circuit looking after us on the second circuit. that had been our intention to begin with a presentation by marshall's first clerk at the second circuit, our very own judge ralph winter. judge winter is recovering well from a recent medical procedure but regrettably is unable to be with us today. i speak, i know that i speak for all of my colleagues when i say that we look forward to having judge winter back with us again soon in good health. many of us have heard his delightful stories about his time with marshall. it is clear ralph treasured the experience. judge winter delivered a eulogy to justice marshall at
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marshall's funeral at the national cathedral in washington in 1993. a copy of that eulogy has been provided with -- to you with the program beautifully reproduced by our library staff. with your indulgence, let me read to you from judge winter's memorable address. marshall was appointed at second circuit only on an interim basis, an interim appointment was a method by which judicial appointments were made while congress was not in session. instead of life tenure, the judge served on an interim basis until confirmed or not confirmed. the marshall, the interim was long. his nomination request for eight months in the senate judiciary committee. during that time, he was treated as a visiting judge and had no permanent chambers in this building. every two weeks or so, he would pack up his files and move them to a vacationing judge's office.
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can you imagine having to pick up your files and moving around? back to winter. in spite of the strain of serving as a judge without being confirmed, marshall carried out his responsibilities with his characteristic good-humored perspective on life. most famous men or women rarely live up to their [indiscernible] as a person. thurgood marshall, the person, lived up to and even outdid his press clippings. he was a warm, friendly, incredibly witty man. a totally lovable human being. i was his clerk in his first year as a judge on the court on which i now sit. every morning, he presided over a coffee hour attended by clerks from other chambers. the atmosphere was one of earthy stories, salty language, and booming laughter. he was universally kind to an left by his clerks.
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in the imprint of his personality is indelibly stamped on them. thurgood marshall was the irresistible force for justice. , the immovable object against injustice and a warm and kind human being. alas, he was mortal. although that, believe it or not, came as a surprise. but his legacy to the nation is indestructible, as are the cherished memories we have of him. today, we will hear from people who work at the supreme court with justice marshall. marshall had a tremendous influence on the jurisprudence of our country as a lawyer and judge on the high court. throughdiscussion -- today's discussion, we will learn how marshall's influence on our national jurisprudence continues today through the law clerks he trained. i am absolutely certain this will prove to be a memorable
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afternoon and early evening. of theelists knew one great figures of the american experience in the 20th century. isding the discussion today the honorable paul engelmayer from the southern district. judge engelmayer is a graduate of harvard college and law school who worked as a reporter for the "wall street journal" between college and law school. decided to get a real job, i guess. c circuit at the d and then for justice marshall from 1988 until 1989. following a distinct career at the united states attorney's office in the southern district and a stint at the solicitor general's office, judge a law firm.oined i love that name. it just sounds like a law firm you want to spend $700 an hour on. [laughter] and that is for the associate. [laughter] you can tell i have been on the
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bench for 30 years. in 2011, president obama nominated judge engelmayer to fill the vacancy created when we were fortunate enough to receive jerry lynch as our colleague here on the second port. senator grassley gave the judge a hard time for a few weeks but ultimately thought the better of his nomination, and for good reason. on july 20 6,er 20 11, was confirmed by a vote of 98-0. i have gone back and looked at the vote on june 12 2003. 97-0.e was judge engelmayer, i don't know how you got the extra vote. congratulations. judge engelmayer, on behalf of the court, i want to thank you for helping us plan this event and for all of your assistance in conquering the endless challenges we faced in making today a reality. ladies and gentlemen, i give you
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the honorable paul engelmayer who will introduce our distinguished panel and serve as moderator of today's discussion. judge engelmayer. [applause] judge engelmayer: thank you, judge wesley, thank you chief justice. i want to welcome everyone here in person and watching remotely. tonight's turnout is approaching 650 people across four courtrooms. it is a record for this 80-year-old courthouse. part of that no doubt is because we have an absolutely world-class panel. it also speaks to the giant to whom we are paying tribute tonight. 25 years since he retired and nearly 24 years since he died, but thurgood marshall, the lawyer and justice, still inspires us.
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he was transformational. thanks to his brilliance, courage, and vision, civil rights [indiscernible] in 2016 is a more just world. our panelists tonight have one thing in common. each of us had the great good fortune to spend a year clerking for justice marshall, who by the time we got to know him was already very much a legend. including ralph winter who unfortunately was unable to attend tonight due to illness, we stand and welcome thurgood marshall's entire career on the bench. himyll cashin clerked for in his final year on the supreme court in october 1990. clerkeden, greg diskant 1975-76. clerked 1984-85.
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elena kagan clerked 1987-88. and i clerked for the year, 1988-89. elena trained me and my co-clerks. i had the rare privilege, although i cannot say i had the prescience to appreciate it at the time. [laughter] a being tutored at once by two supreme court justices, one present and want future. each of our years had a different texture and character. each was shaped by the time, the changing composition of the court, and the year's docket. certain aspect of a clerkship or perennials. that is what we called him at his request. judge.ed to be called he called us knuckleheads, and
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affectionate term, and other nicknames perhaps we will get to. one thing that the clerkship myth was lots of time with him after oraly argument, we would spend an hour or so across the conference table in his private conference room near his cherished bust of frederick douglass. my year, the court heard arguments in 170 cases, which was fairly typical for his tenure. so there were lots of those hours. he would discuss the cases argued. he would make notes in his binder with his trademark blue pencil until he arrived at a decision as to how to vote. to be present as he talked through cases was a thrill. it was literally being a witness to history. and then would come what we called storytime. would talk about the story of his life, his early career as
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a criminal defense attorney representing black defendants in the deep south charged with murder and rape and facing the death penalty if mob justice did not get to the first. the civil rights cases he brought, including the desegregation cases leading up to and following brown, his years on the second circuit, his years on the supreme court, his views about law and life and politics and current events, as heroes, his villains. he was a master storyteller. he was very vivid and black. he did not pull any punches. he was righteously funny. my year, he had just turned 80. there was constant speculation about when he might retire. one day he told us he did not plan to leave the supreme court until age 110. we asked him what would cause him to leave then. his answer was this. and i quote. "shot by a jealous husband." [laughter]
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judge engelmayer: those post-conference discussions as much as anything were how t.m.'s clerks got to know him. i hope the discussion tonight illuminatenate -- this great man and his work as a supreme for justice. i will put more substantive questions to the panel, a number of whom have written about justice marshall and invite their reflections and discussion. i plan to leave a fair amount of extra time at the end. apart from our panel, we are fortunate to have two dozen other martial clerks -- marshall clerks, including an article three colleague. we will open the podium to former clerks who wish to share a brief thought or reflection and get the panel's take on what they said.
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and then time permitting, we will take questions from the rest of the audience. with that wind up, let's get started. i'm going to begin by asking each of our panelists what was your you're like working for thurgood marshall. elena, let's start with you. justice kagan: first, let me say what an honor it is to be here. [indiscernible] it is a wonderful event. seeing so many judges from the second circuit and former t.m. members, ifamily think the t.m. family really is a family. it is wonderful to be here for this celebration. it sounds like my year was pretty much like your year. we were in adjacent years. when you are a clerk at the supreme court for anybody, you
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feel as though you have won the lottery. it is a great job. it is a very heady experience for a 28 or 30-year-old. but i think there was something special about clerking for justice marshall. as you say, we used to call him t.m. or just judge. because you were aware you were clerking for a living legend. he was not just a living legend by the time we began to clerk for him which was late in his career, he was a living legend the moment he stepped onto the court, which is not true of most justices. most justices -- judge engelmayer: present company excepted. justice kagan: they are known for what they do on the court. sometimes, they are not even known for that. [laughter] justice kagan: i have to think if there is anybody else like him, i am not thinking of it.
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somebody who had never served a day as a justice of the supreme court and would have gone down in the history books. i think he was the greatest, most influential lawyer of the 20th century. to walk into that set of offices and realize that you were clerking for somebody who had that place in american life, and not just as a matter of the important things he had done, but i mean, why was he the most important lawyer of the 20th century? because he did more justice for more people than any other lawyer did. to feel as though you had been picked somehow, you had one this lottery so that you got to spend a year with this incredible man was a very special thing. was aen, as you say, it year where there was not a
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moment where you felt disappointed. he was larger than life. whatever you thought about him going in, you thought more coming out. most or theremember times you are member most, which was the times we spent in his inner office talking about cases but also talking about life. he walked into his office and you would start with the cases. you would go over every case. we would talk about what to do about them. he would ask questions. you would give your views. and then he would tell you sometimes that your views were wrong. i remember when you pressed too hard on something where he disagreed, he would point to the commission on the wall. and he would make you get up out of your chair and go to the commission on the wall and read whose name was on it. [laughter] the other thing
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he used to do on those occasions, he had a saying. my clerks do this to me a lot. they say you have to do this. you have to vote this way or that way or right this opinion or that. he would say there are only two things i have to do. stay black and dark. -- stay black and die. [laughter] justice kagan: you would have thought we would have learned to avoid that. but we would talk about the cases. at a certain point when we were done, he would segueway to storytelling. he was the greatest storyteller i have ever met in my life. her -- racck into onteur. part of it was the material. not a lot of people have the stories he had to tell about the changes he had seen in the country.
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about his own legal career. i mean, they were incredible stories, especially of his years in the legal defense fund crisscrossing the jim crow south. but he was also just a phenomenal storyteller. make you weep, make you laugh, make you do both at the same time. there were times when we were really just like falling off our chairs we were laughing so hard. and then you would go, why are we laughing so hard? this is a terrible story, you know. he never repeated a story. this was the most remarkable thing to me. it has become even more remarkable with the years. i feel like i repeat a story on wednesday i have told my clerks on monday. he never repeated a story. it was like a new one would come out every single day.
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the thing i most regret about my clerkship year was that not one of us had the sense to just write them all down as soon as we left his office because i can recapture maybe .1% of them. and that seems to me a terrible loss. spoke, the way he told stories, the kind of history he had to tell. it was an incredible time for me. it was a year i think of as one of the luckiest things in my ite that i got to spend there with him. so with that. we loved it. it was the most exciting time of our life. hopefully, we do not repeat ourselves too often in saying how important the privilege of working with t.m. was.
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it was pivotal in my life, my co-clerks, my colleagues. a wonderful experience and a great family. in 1975-76,r t.m. one year after watergate ended with the nixon resignation. so it was a different time. when i was hired, i applied to justice marshall who was one of my longtime heroes. i was thrilled. i was clerking at the time for skelly wright, who was an old drinking buddy of thurgood's. as i'm sure you will hear, thurgood had many drinking buddies. they tended to enjoy bourbon. if you were a thurgood drinking buddy, you more or less could do no wrong. i got the call from justice marshall who said to me, if you are good enough for skelly wright, you are good enough for me. i was so flattered and astonished he said this to me. i was clearly -- completely
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enraptured by him. i later learned it was one of his lines. if you are good enough for an weinfeld, you are good enough for him. [laughter] but no matter, he was a humble man in the end and we were all desperate to be good enough for him. that was an interesting year. 1975, justice douglas resigned from the court under pressure from his colleagues. 1975, ther 28, republican president, gerald ford, nominated john paul stevens to the court. 17, thelater, december democratic-controlled senate voted to confirm justice stevens and he was sworn in and served out the term. it was a different time. [laughter] gregory diskant: one could say. we may cases our year,
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talk about these later a little bit. the money equals speech case. case which was near and dear to justice marshall's case. we wrote the most boring court opinions. chief justice burger and justice marshall were not close. dogs.w, we got the i drafted for the judge an opinion on the constitutionality of the wild free roaming burros act. marshall cared about the craft and was no less demanding in the quality of the majority opinions we got to write and draft as for the dissents. and we got to be members of the
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family. i'm delighted to see him. he was the southern summer assistant. and john know sissy and be part of the family. it was an absolute thrill. join this: i distinguished panel in giving thanks for this great thank youy and say so much. i have to say one of the highlights of my life was recommended elena kagan for a clerkship with justice marshall and then going to visit and seeing what her time there was light. i want to tell you about my interview for the clerkship. i had one of those horrible colds where you have no voice and terrible things are coming out of your nose. i called the clerks and said, could i possibly postpone the interview?
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there was a long pause. "you don't postpone a meeting with justice thurgood marshall." i come with a box of kleenex under one arm. i am a wreck. they usher me into the office. the judge looks at me. i cannot get a word out. he said my daddy had a cure for what you have. you take quinine and whiskey and you leave out the quinine. [laughter] dean minow: and then he said, do you want the job? i said yes. they pushed me out. i think nobody wanted to get the cold. [laughter] dean minow: it was the era of many cases, there were about 183 that year. when the cart would come down the hallway, the squeaky wheels with the petitions, we would have 30 a day to do. i remember the first day, it took me all day to understand
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what the issue was. i thought there is no way i would be able to do the job. the judge would have a blue pencil and write comments on the petitions. we wrote memos on every petition. he was not in a pool and proud of that. the comments were one of the ways in which we learned. we learned a lot about what he thought mattered and a lot about what battles he thought were worth fighting. two eat up other words -- other words. one was the mood of the chambers, constant teasing set the tone by the judge. nicknames of every sort. i was the only woman in his chambers. there were lots of names that i am not going to repeat. point, onew, at one of my co-clerks at the brave moment to say to him, why do you call us these names? he said, you're going to get
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called worse. it was a really good lesson and reminder. my year, it was october term 1980i started. there was a presidential election. you may recall it. president reagan was elected and the senate changed to be republican-controlled. there was a moment when justice brennan came to the chambers and the two justices looked at each other, and there is this sense of my goodness, the world has changed. they walked down the hall kind of arm in arm. a moment like that. my year also -- [laughter] dean minow: my year also had a women in military case. my fellow clerks told me i was not allowed to take part in it because i was biased. [laughter] dean minow: abortion cases and many others. thurgood marshall was my hero my whole life. i went to law school because of the civil rights movement. i had previously worked on
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school reform. for me, the chance to hear his stories and learn from him was incredible. the big surprise for me was what i now standing lawyer he was. absolutely spectacular. i think about him just about every day. i'm very it is wonderful to be on a panel with justice kagan and my fellow clerks. i want to go back to paul. by the time i got my clerkship, t.m. did not interview applicants. i was lurking in his building -- clerking in this building for justice kleinberg, another spectacular experience in my life. my co-clerks and i were in the judge's chambers talking about some case. was justice for the second circuit so they
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talked frequently. the judge's assistant came in and said justice marshall is on the phone so judge kleinberg went to get his phone. the assistant said, no, it is for ricky. [laughter] prof. revesz: it was early in the term. i sheepishly look at the judge like, can i leave your presents and the discussion of this important case to take a judge from justice marshall? he reassured me it would be fine. i left the chambers and went to my desk and i picked up the phone. voice said, do you still want a job? i said yes, i would love this job. he said good, you have a job. see you in july. for a minute, i wondered if this was a friend of mine calling.
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[laughter] prof. revesz: i did not quite know how you go about figuring this out. it was not obvious what you would do. it was probably real. i waited a few days and called one of his current clerks. i did not think i could ask if this was real, but i said evie figured out when we are supposed to start? they said yes, you should come july 14 or something. i have never met him when i came. i think he was on vacation so i did not meet him until a few weeks later. it was an amazing experience. i had become a u.s. citizen only three years before that. the idea i was going to walk into this building and be in the presence of a figure of history was amazing. in our lifetimes, get the chance to meet a lot of people who really change the course of our society.
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much less so that we get a chance to actually spend literally hundreds of hours in their presence talking to them or at least hearing their stories. it was mostly a one-way conversation, although every once in a while, we did get to say something. there were some significant things about the term. the court decided garcia versus san antonio public transit authority. that was a very important case. it was also the year in which the number of death penalty cases skyrocketed. this was 1984. in the first few months, there were death penalty cases all the time. we would split them up. we would stay up most of the night because these cases ended up getting -- reaching the court after midnight for executions scheduled for like 2:00 a.m.
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we knew the papers were coming woulde the clerk's office get copies of the papers filed in the district court in the morning. the court of appeals in the afternoon. they would make it to the supreme court in the evening. there were lots of these cases. we were up there most of the night many days. one day, we talked to the judge and said we could never imagine there would be dismay cases like this. he said, don't worry about it. it will come to an end soon. there is an election in november. after the election, you will see a lot fewer of these cases. these are d.a.'s running for reelection. obviously.rful, and he was right. there were cases after that, but the volume went way down. he cared enormously about each of these cases. in fact, these papers would not get logged until late at night. there was a protocol about it.
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hisjustice and sissy, spectacular wife, would disconnect their phone in the evening. when there was a death penalty case coming, we had to call her in the afternoon to tell her we would be calling late at night. then she would leave the phone connected. fax machine, i think only one in the court, in the clerk's office. would sit justice waiting for these. justice white was a circuit justice for the case. each chamber's law clerks were standing around this desk. when the papers came in, justice white went to ask each clerk, how is your boss voting? and i said, i'm going to run up to chambers and call the justice. he said, what do you mean?
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don't you know how he is going to vote? he votes to stay all of the executions. [laughter] i said, i know that, but he wants us to call him and he wants us to describe to him the legal issue. if someone is going to be executed, he wants to know something about the case and then he will tell us his vote. justice white was extremely annoyed. it was very late at night. he could not really argue. i had to call my boss. i called and come back. how is your boss voting? i said my bosses voting to stay the execution. that was unusual. i was the only law clerk -- all of us when we were there were the only law clerks who placed those calls. everyone else had the case described were exactly the same. the cases were fascinating.
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it was an enormous privilege to work on them. , my i remember the most group, forin this the stories -- were the stories. often in our year, the stories came to us. i shared an office with my colleague, rick. there was a huge armchair in that office. in the afternoons, the justice often stopped by and sat in that chair and started telling stories. we also came in on saturdays as did he. some saturday mornings, he would come in and go straight to the chair where he sat and would tell stories. there was sort of a protocol in clerk -- that he a clerk when a judge stopped by to tell a story had to stay as long as it took.
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we could not leave while he was talking. it was unwritten protocol. there was a prudent nuclear -- there was a particular saturday, there were 33 clerks our year. i would say 25 or so were in the office. the office was not that big. most were sitting on the floor. half of them are starting because they had not had lunch, and the justice was still telling the stories. they were stories -- that day, the topic of that day was the strategy leading to brown versus board of education. the message was that while the thatof all this litigation spanned more than a decade was eventually bringing to the court the argument that separate but equal was a violation of the constitution, the last thing he wanted was for this argument to he heldtoo soon because without all the building bought cases, the court was not going to overrule plessy.
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us wast he explained to a strategy about how to keep this argument away from the court. in all the thinking that went into how not to answer a question if this question was ever asked directly in oral argument in the early cases. the most interesting thing given the way our society has evolved is he had absolute control of how these arguments were presented by any lawyer in any court around the country. these days for any issue, no matter how important, there will be lots of different groups competing for attention, competing for publicity, competing for funding. as someone is going to have the idea they will do better by bringing an argument i had someone else. by force of his intellect and personality and prestige, he was able to control the way these issues were presented to the courts over more than a decade.
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i thought that was an amazing accomplishment and probably the biggest take away i got from the year of clerkship. prof. cashin: it is such an honor to be here with the t.m. family. [indiscernible] i'm very happy and honored to be asked to talk about my year clerking. before i got married and had children, i always said my year with thurgood marshall was the best year of my life. it started just the same as you. i got a call, no interview. you still want the job? [laughter] , if. cashin: when i started was not even sure he knew my name. the first time i realized he knew my name, the first week we were on the job, justice brennan retired and i got a call. he wanted me to write a statement for him. he dictated what he wanted.
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i just got a call from thurgood marshall! [laughter] prof. cashin: he took us to lunch. scott, you will remember this. he took us to lunch at first week. the first thing he said to me was when you get married, gal. why did you ask me that? you did not ask anybody else that. he was reoccupied about when i would get married and i was "gal " the whole year. for me, justice marshall went to college with my grandfather at lincoln university. not only were they classmates, they were fraternity brothers together and with langston hughes who was also a fraternity brother. for me, it was like he was something of a surrogate grandfather. i relished -- for me, the to theht, in addition clerks conferences with him, i
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would often go and sit with him and talk to him. he would tell stories about mark carpenter. he was a lot like him, a crazy guy who was a cut up school and did not get series and later. one of the many stories, and by the way, justice kagan, i did keep a diary. paul had warned me about these stories, and i would run back to my desk after every session and write down stories. we need to talk about what i can do with this diary. one of the most profound stories he told me that year was how, and this is in one of the ion for fees of t.m. --biographies of t.m., how langston hughes was one of the people who pierced his social conscience. i can get into that later. the stories, i recall these moments where tears would be streaming down her face.
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he could make you cry both with tragedy and comedy. it was like pure gold. whether dark or funny, he would do that to you. everything from going down to the village with langston hughes to party with the hip literary crowd, to his exploits in the south, the kind of stories in gilbert king's excellent book, " devil in the grove." it is fantastic. he narrowly escaped lynching, to frat boy pranks, to how he successfully defended men accused of rape. the highlight for me that year in terms of the work was i got to, in addition to working on opinions, imajority got to help him craft a dissent in a school desegregation case.
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board of education, city of oklahoma. in that context, i read every single schools case ever decided by the court. i spent a great amount of time talking to him about this. this was his last year on the court, after beer on the court. he was 82 and feeble. i would talk to him about some of these cases. -- light up. them particularly the early cases, , the case in which a chinese girl basically had to be a negro. i could feel a glimmer of what it must have been like to be a lawyer then. that was very special for me. a signature moment, i will never forget this. of the term, i am toiling away on this dissent, he
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is having this conference with us about our work and what we are doing. he asked me, gal, when are you going to have that draft in the school case? i said i think i need about a month to get it together. he paused and looked at me and , but i love you, gal you have got a week. [laughter] it reminded me, i learned so much in gilbert king's book about what the work ethic was. to this day when i am on a tight deadline, i remember that. you think you need longer, but somehow you will manage if you bear down and get it done. year,her thing about this and then i will wrap it up, this was the only year on the court for justice marshall without brennan there.
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scott will remember this. he was the senior liberal justice. for the first time on the court, he is having to kind of assert a leadership role. this man who had been silent at the bench suddenly started talking. he would ask these questions. not every single case. but inevitably, he would ask these questions clearly designed to bridle the lawyers. just go for the jugular. and it was delicious, absolutely delicious to watch. that is my year. everybody was talking about their call was justice marshall so i want to put in mind. it started exactly the same way. he called me over the summer. i was still hanging around harvard law school. i was taking longer view courses. -- longer view -- longer view courses -- law review courses.
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i got on the phone and he said, you still want a job? i said, i would love a job. he said, what is that? you already have a job? [laughter] justice kagan: and of course, i am turning white. no, no, i don't have a job! what i said as i would really love this job. i want this job. "i don't know, if you already have a job." [laughter] justice kagan: and this went on like two more times. "i don't know, if you are you already have a job, i don't know." finally, he took pity on me. he said i guess if you don't have a job, you can have this one. [laughter] justice kagan: c july 4, c july 4,t was --
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whatever it was. that was my introduction to justice marshall. let's go toayer: justice marshall as a dissenter. t.m. tended not to get majority opinions. he wrote lots and lots of [indiscernible] [laughter] judge engelmayer: working on dissent with t.m. was a staple of clerkship. martha, i will ask you to leave this part of the discussion. what was his philosophy about dissenting? what was he trying to accomplish? dean minow: one of the phrases used very often was "pick your battles." i have worked for a different judge who basically sometimes switched his vote to dissent. he loved dissenting. this was a very different idea.
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judge hady clear the the recognition he needed to work with his colleagues, but he also wanted to get the kind of attention that comes and not be dismissed as someone who always dissents and therefore not be paid attention to. he wants to sustain the moral authority that comes from -- this is the moment to dissent. this he was very flippant about. he said we will not have the energy if we dissent on every one of these. that was his philosophy. on the other hand, there were lots and lots of cases where there was dissent. i really watched that pickup over the course of his time on the court. i read all of the sense -- the dissents to write out my tribute for him when he retired from the court. it was striking he was bearing witness and committed to telling the truth about human beings and people's experiences,
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particularly people who in one way or another had been marginalized by society. dissentple, the famous is united states versus kratz, 1973. the majority rejects the due process challenge for someone seeking bankruptcy. it is likel the butt of a joke. you did not have the money to file bankruptcy? they said this is an installment plan the court offers so people can pay the installment fee spread out over time. it adds up to being weekly not much more than two packs of cigarettes and a little less than a movie. in his dissent, justice marshall said it is perfectly proper for judges to disagree about what the constitution requires. but it is disgraceful for an interpretation of the constitution to be premised on an unfounded assumption about how people live.
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and then he went on to explain what that amount of money meant to a poor person. whatis just an example of he would do over and over again in his dissents. he would highlight the details of actual life. just bear with me. soead all of the dissents, you are going to hear he dissented and identified the experiences of poor people, prisoners, minors, older people, minority political parties, people with disabilities, native members of religious minorities, immigrants, noncitizens, fathers, women, rock music fans, anyone who might seek an abortion, students, residents of puerto rico, members of racial minorities, protesters, and people with long hair. and in each of these instances, he described get behind the image.
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let's try to figure out who these people are and here is something about their lives. another theme in his dissents was defending the rule of law and objecting to abuses ofwas dw and objecting to abuses of power by government officials, and related to that, particularly stinging dissents and out of uses in his view by judges and their lack of candor. he would often talk with historical analogies. he was a master of the analogy. to draw connection between this case and that case. just one example. skinner, which was in your year. skinner versus railroad labor executives association in which the was a challenge to mandatory blood and urine testing for railroad workers. and the majority upheld this mandatory testing. in his dissent, justice marshall says we have to be careful when people talk about emergencies. the claim is there is an
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emergency, there are dangerous, and therefore, we have to give way the usual concerns about searches and seizures and privacy. and that he goes on in a paragraph, remember the japanese internment. remember the mccarthy era. judgesr the regrets that have had about approving those things. the sense of history and a sense of bearing witness to the history and reminding people of the history. and also, really being very concerned. he was very explicit in the city of mobile versus goldman 1980. i should and one -- and with this one. being very concerned with if the courts are no longer trusted by the most marginalized in society , that would be terrible for everybody. and there he said if the government expects the victims of the system to use the redress channels for and protest, those channels that better be available.
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>> i will jump in. experience as martha did, and what struck me was what it is -- what a historian he was. times and apocalyptic year. 1999 -- 1989 was the first year of justice kennedy. court heard a whole series of cases that threatened to upset some very important pillars of the law as he saw it. whether fixed route need for affirmative action, or to reverse roe versus wade in the webster case, or whether to reconsider and historic 971,ruction of section race relations and contracting
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case. from time to time, he would allow himself to be heard if all that is happening, could brown be far behind? in fairness, he would then quickly roll that back and say i don't really think that's going to happen, but he was concerned. ofused his dissent in one these cases, richmond versus grows in case, the strict scrutiny case, where the court exquisitely adopted strict scrutiny for affirmative action racial classifications to make the following point. the case had come out of richmond, virginia. richmond adopted a municipal ordinance patterned on a contracting affirmative action plan that had been upheld by the supreme court of the federal level in the case. he thought it was outrageous that the court was now imposing strict scrutiny at overturning this. he began the decision -- this was important to him, to say this is the capital of the confederacy, folks. it ought to be assigned of racial progress when the capital
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of the confederacy affirmatively acknowledges a problem of racist termination in its midst and acts forthrightly pattern on the federal statute to adopt it. youris our history, decision is a storable. likening affirmative action to straight on determination that he devoted his career to fighting. [indiscernible] i don't think there was an issue that was closer or more important to his heart than the death penalty. 1973, the board had invalidated the death penalty, it was arbitrarily imposed. tm thought we were done, the death penalty is gone. enacted laws reinstating the death penalty as did the united states for airplane piracy.
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indenly, it was back and march of 1976, it became >> against georgia -- greg against georgia and justice marshall a lot about death rate -- death. people,ut defending mostly black men falsely accused of rape or murder. if he won a light sentence, a guilty verdict and a light sentence, that was a win. he would not appeal a case in which a light sentence was imposed because under the law at that time, if you appealed and won, there could be a retrial and the death penalty imposed. i could see him shaking his head
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and saying i have seen so many innocent negro men and boys sentenced to death. the word negro. he was not a fan of black or african-american. he fought for negro and that is what he always said. i have seen so many innocent negro boys sentenced to death, i could never, never support the death penalty. sadly,e was argued and sidehose who were on tm's of the ledger, by a seven-to 7-2 vote, it was reinstated. i went back to reread the dissent, and its lack of passion. marshallo say, justice engaged on the levers of the arguments, was it antithetical
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to a evolving societal standard. it's hard to say since 35 states have enacted these laws. he was arguing about the terms and retribution and ideas of that sort. i wondered why didn't he talk about what he knew, which was the death penalty was often wrongly imposed on innocent people? at thatught about that, time, we didn't have the vast unfortunate reservoir of the innocence project or dna analysis that teaches us that -- andue that people are undo number of occasions are convicted wrongly. had he written the dissent that was in his heart, which is, justice marshall know that innocent people are convicted all the time, and we can't sentence them to death, he didn't have an empirical basis
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to say that. he was just their lawyer, he would sell like their mother or their wife. so we didn't write that. but that's what he felt. , he never losty horrible crime by the state of executing people. court, in striking as well as the vote was 7-2 to uphold the death penalty. courtjustices on that later said they were wrong. justice blackmun was on that court, he says i will never again tinker with the mechanics of death, justice stevens was on that court, and he said it was the only vote in his career he regrets. courte powell was on that and said it is biographer that it was a mistake. 5-4e could have been a reverse outcome.
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justice kagan: the year i served was not a year of big cases. a reporter for the washington post called of the most boring term in modern supreme court history. of the case that i remember justice marshall felt most strongly about my year was given that you probably have never heard of -- it was a really important case for him, cameron versus didn't -- dickens public-school. i think it was in kansas. it was a young white girl who whod in a rural area and was many, many miles away from the public school. and the school district imposed a very substantial fee for bus service to the school, more substantial than this for family could pay.
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the question was whether that was a violation of the equal protection clause. it was a case that i was assigned to and i went in to his office along with my other clerks one day to talk about this case. i said to him judge, i just don't think that you can rule for the girl. and he said why not? he is not aest is suspect class and education is ever been held to be a fundamental right, so i think rational basis for me, which is the lowest tier of constitutional scrutiny applies. and there's a rational basis for know, you think, you have to rule for the school district, and that have to kind of way. this was definitely one that he did not have to do that, thank you.
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are talking about nicknames, i was shorty, always. dayst on the really bad when i was really a knucklehead, and that was definitely a knucklehead kind of day. he just looked at me and said what is this court set up to do, except to make sure that children in this position can have the opportunity of a public education? it was incredible that anybody would think anything else. forth onnt back and that opinion. i would draft something and he would send it back, this is not good enough. i would draft it again and he would send it back and say make it more powerful. he cared so much about that case that all think there was anything that was closer to his soul. as i said, it was an african-american child, it was a white child in the middle of some big square very white state
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wasthe idea that the state doing something to deprive a child of an education, the opportunity to better your life, he just couldn't imagine it. --t also was a seven-to case 7-2 case. judge engelmayer: everyone knows about his votes as a lawyer, as a justice, what other areas of laws engaged in what issues were a particular special interest to him? you were the earliest of us to clerk. >> an issue -- many of our dissents were on criminal justice and racial issues and the like. mr. diskant: he was very interested in libel law. there's obviously some relationship between the press
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and the civil rights movement, and times against sullivan was about an advertisement in support of martin luther king. but tm love the press. when he was a young lawyer before he got full-time engaged in civil rights work, he defended the baltimore afro-american in the offices of mr. mcguinn. i don't know whether he has a first name, as far as i know, it was mr. mcguinn. in the baltimore afro-american was his clients. they had a very close relationship, he loved newspaperman. when the brown decision came down, the baltimore afro-american headline read through good wins -- thurgood marshall wins. and he did. in the mid-70's when i was clerking, it was an area of big libel cases.
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in 1974, a couple of years earlier, a verdict had been decided saying that the actual malice libel standard would apply not only to public officials and public figures, but it could be a category of limited purpose of public figures yet to be defined, but to include people who thrust themselves into public controversy. way,me a case came our firestone against time wartime against firestone. cases a salacious divorce out of florida or in mary alice firestone had sued her husband, he sued her back for adultery and cruelty and all that stuff. the trial record, the judge has an colorful comments. according to testimony on behalf of defendant, extramarital
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escapades of the plaintiff were bizarre and would have made dr. freud's hair curl. on the other hand, testified about the husband would indicate he was guilty of bounding from what bed partner to another with iran exist in the seder -- zeztc possessed -- erotic of a satyr. he says neither party is domesticated. [laughter] thediskant: therefore marriage was at an end for lack of domestication. time magazine reported this in a , thetone one sentence divorcing and granted on the ground adultery. sued in alice firestone florida, because i heard arguments, any idiot with no that you can't get alimony granted if the grounds for the divorce were adultery, so the
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reference to lack of domestication must mean something else, even though the lack of domestication wasn't an actual ground for divorce in florida law. the florida supreme court thought this was an egregious example of negligent journalism and the case came to the supreme court. where justice rehnquist writing for the court found that mary alice firestone was not a public figure, notwithstanding the 47 articles in the miami herald and the 45 articles in the palm beach press, and the press conference she held, and the fact that she was a member of the sporting set in palm beach andwas regularly covered justice marshall dissented, that we must assume it
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was by choice and mrs. firestone became an active member of the sporting set. and then the thing that really cost attention was the alternative suggestion from the times reportthough was certainly a rational interpretation of the end it was court document, but that was not the defense to a private figure libel case. justice marshall thought that , and i was the essence of the dissent. he loved reporters, he left alan around -- he loved palling around. let me -- judge me broaden the question. where there are his views would seem unexpected? >> this was not the world's most
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important case. this was a mining statute that required a certain mining claim to make yearly filings of their intention to keep these claims. in the statutes of these filings needed to be made before december 31. and that failure to comply with this requirement was deemed conclusively as abandonment of the claim. these poor claimant filed a claim on december 21, in this case made it to the supreme court. it turns out that the agency that measured the statute seemed to have been confused about what it meant. apparently these claimants have gotten advice from some employee of the bureau of land management saying that any time during the year including december 31 was fine. there was some regulations set as long as the claims were filed by mail, and received by january
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19, they would be timely. there was no requirement of them having been mailed any particular time as long as the envelope was received by january 19. there was some confusion here. as a result, justice stevens joined by justice brennan's dissent, justice powell also dissented, indicating agreement with much of justice stevens is dissent. justice marshall wrote a forceful majority opinion saying if the statute said before december 31, it had to be interpreted that way, even if congress might have meant it to us that by the end of the year, maybe this wasn't the world test drafted statute. i didn't work on the case, my co-clerk and colleague did. thought that the justices making mistake here. and very much wanted him to join the stevens dissent. i think rick felt this most forcefully among us. we had many discussions about this case.
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the justice took it very seriously. we were in there in his private study many times talking about this. to dropo persuade him his position, which he actually felt very strongly about. while, butus for a after a while, these discussions actually came to an abrupt end when the justice said, with some annoyance in his voice -- i was solicitor general of the united states. if can't run a government some court decides that before december 31 does not mean what it says, just because it might lead to a harsh result. and even though his constitutional decisions didn't make this obvious, from time to time, you saw that he had the sensibility of a government lawyer. in this case, i think in my mind, illustrates very clearly the fact that he came across
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with a lot of vehemence, he would not have been crazy for him to join a dissenting approach the justice stevens, justice powell, justice brennan had taken. in a moment, he was solicitor general. justice kagan: i had a case just like this in my year, where it was an employment discrimination, this group of latino employees who said their employer had discriminated against them, i have lost in the trial court and they took an appeal. for some reason, the lawyer who filed the notice of appeal did not include one of the names of the plaintiffs, and the question have a pseudonym, it'd been brought by five claimants and only four were named, was the last one going to lose his claim for all time? this was one very similar, all the clerks and so you can't possibly lose this claim because
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of a mistake by a lawyer, and his view was known, the guy lost his claimant because his name was not on the notice of appeal. we argued quite vociferously with him and i remember him that shemething like so the only thing you can expect if you are let against is that the rules are here too. and the thing i always counted on why was a litigant for unpopular people was that at least the judges would follow the rules. you can't have a system where everybody just decides whether the rule is good or bad, whether we want to follow it or not, the greatest protection lies in the rules, and sometimes that means you are going to have a bad result like this and it's just too bad, because there's a greater value in having a system of rules that everybody knows is a system of rules. and that was so powerful for me. >> i had a similar experience. the one time he shouted at me, we had a case in which a lawyer
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had missed a deadline and -- it was a death penalty case. insistence on the rules and i having no patience for bad lawyering clashed with his death penalty context and he -- the exactlet same thing, you can't do this, you can't do this he shouted. ultimately, the five of us -- we had to move him. it was very unpleasant. it was only because of the death context that he changed his vote. we ask him that i learned about that value. ,ou articulated better today now i understand. nowe engelmayer: let's turn to tm as a storyteller. allg his stories, we can
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admit he talked a great bit about the battles he fought in his career. what were some of the memorable stories and what were the point of these stories? you and written about a particular exchange you had about the second circuit confirmation. mr. revesz: it was an extremely traumatic moment in his life. afternoon, heone is on his way home and he stops i would liked says you to read the transcript of my confirmation hearing for the second circuit. as soon as he leaves, call the library and ask them to send me the transcript. it turns out, there was a lot of stuff to read, roughly 1000 pages. numeral several hearings that were spaced out throughout the year, so i read all of this. it takes most of the night. i learn a lot.
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so justice marshall was nominated to the second circuit, the senate recessed a few days later and he got a recess appointment. his nomination was resubmitted to the senate of the beginning of the next session. served on a1962, he reset appointment and shuttled back to washington for several different hearings before the senate judiciary committee. this committee was chaired in is,land, where segregation and he was always not pleased there was now perhaps going to be a second african-american judge on the u.s. court of appeals. there was only one at the time on the third circuit. to save these hearings were an ugly affair would be a gross understatement.
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armaments --al arguments were made at the time, mostly by the lawyer and investigator for the committee. just to give you a flavor of what came out, the senate focus for a long time on violation of texas law by a private lawyer in texas who had been retained on a case of a legal defense fund. linkings no allegation the legal defense fund or any employees to any of these , but lots of time and energy and scrutiny took place. the committee, he complained at though there commercially worked in new york at best for a long time, he was not of the new york bar, and he explained that the practice only in federal or in there was no
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requirement for him to be admitted to the bar of the state of new york. his membership in the national lawyers guild, received lots of scrutiny. there were efforts to suggest that he had were at some time had had communist sympathies. he explained that he resigned from the national lawyers guild in 1949 over the guilds criticism of a handling of a trial about alleged communist. along the same line, the committee focused on the fact that a former communist party member in texas had organized sittings on behalf of the naacp. the committee explained the sky was obvious the member of the communist party because the sittings were very orderly, unlike other settings that were not orderly. this had to prove something. explained thatl the time of the sittings, the
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lef and naacp were independent entities and he had no connection to either of these things. no good argument was raised, the other things were that he had experience in the very narrow field of civil rights law and didn't have a good understanding of the securities law cases that form the stable the work, he explains what his experience was, but at that time, he argued many cases, including the most important case of the century for the supreme court. that did not seem to convince the senators. the bottom line is that senator --tland didn't want not didn't want his nominated him up for a vote. he was saved by the senators from new york. who held an extremely high regard, and was extremely grateful. we had a different times her snippetse of -- heard
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of this story. reading the transcript made it all come together. they threatened to bring the nomination to the floor without a committee recommendation. pressure,is of this they allowed a vote to take place, the committee vote was favorable, 11-4, vote on the senate floor was favorable 54-16. all the negative votes before both committees and the senate were cast by seven democrats. after this closed wall miter, the next morning when the justice arrived, i stopped by and asked him what he wanted me to do with what i have learned, and i sort of assumed he was going to give a speech and wanted a draft writing this and he said nothing, ricky. i just wanted you to know about it. [laughter]
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so when he retired from the the saga inte about my tribute to him to the nyu law review. -- sheed he wanted below wanted me to know about it, he would want others to know as well. so whoever happened to read my tribute and the 675 people who i understand are here today. one of the interesting aspect of the story -- this also came out in snippets throughout the year, is that this story: the view of the leading political figures at the time. i'll just mention three. bobby kennedy was the villain. the justice department thought that as attorney general, he should have testified on his behalf, and he actually had this in thehich has waned current times, with a decision but the judicial nominee forward and judicial nominee answer that. the attorney general's income
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and testify. cometorney general should and testify. the court of appeals are much smaller, and he obviously was a special case. it was the second african american judge in the country and his nomination had been controversial for that reason. bobby kennedy had worked for him and thought that body kennedy should have gone to eastland and stopped -- bobby kennedy should have gone to eastland and stop this mistreatment. at that point, his recess appointments would have ended. i directly checked this, the justice claimed that he could have gotten the second recess appointment, but he couldn't get paid to do the job, and that somehow, president kennedy had said that he would pay his salary on the second recess appointment, which probably would have been problematic.
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i never really got to the bottom of that. but bobby kennedy was a villain. his feelings about president kennedy were somewhat more neutral. this wasero in all of lyndon johnson. he was a person the justice marshall regarded as a true champion of civil rights and johnson had persuaded him to give up his judgeship on the second circuit which was a difficult decision for him. and obviously, had nominated to the supreme court. justice believed, and he often told us that president johnson's political career came to an end because of his support of civil rights, not because of his support of the vietnam war. this is obviously an untraditional view, but one that he felt that he believes very strongly. we heard praise of lyndon johnson at least on a weekly
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basis, usually many times in a week. judge engelmayer: any other brief stories about tm? he liked to tell stories about race relations. lesson, and they also all had a punchline. he was very good at taking serious stories and making them humorous, but you got the point. one of my favorites is a ralph winter story which i'm sure he would have told that he been here, which was when tm was on the second circuit, the newly , he was supposed to go up to another judge's chambers for a photo session. the photographer had set things up and in the course of doing that, had blown the fuse. so there was a call for an electrician.
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there was a call for the electrician, the door opened and in walks the target marshall. the judges secretary says you must be the electrician. of course, he wasn't. he comes back to chambers and he tells the story and he's not angry, he's not disappointed. what's his lesson from the story? at that time, the new york trade unit -- unions were highly segregated and so the lesson from the story is that woman must be crazy to think that i could be an electrician in new york city. [laughter] you had almayer: story. dean minow: yes. eliminated his ability to play all roles. he could tell the parts of everybody. this particular one was about his time as an advocate in the south.
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one of his roles with to try to recruit people to be willing to the plaintiffs when they were really putting their lives on the line. he's in a car, he rolls into town and he is surrounded, quickly by a group of white men. he says this is it. this is where i will die. i will die here. he opens the window of the car a crack, and the man right there says you know, no negroes can stay in a hotel here. so you stay ats my house? that was a story that was catching us in our own assumptions, that every white southern person was a segregationist, and was terrible. also in which he played every court. i'm just going to tell one of them, because it is the cleanest one. [laughter] gamble,ow: he loves to this is a joke about someone who
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was in las vegas and lost every cent, every single cent. back in the time when you actually needed a quarter to be able to use the bathroom. anybody old enough to remember this? has notman literally quarter, nothing. he goes to the men's room and he has nothing in his pockets. he's looking pathetic and someone takes pity on him and gives him a quarter. he reaches to use the stall, and lo and behold, the stall door was open. be a good story if you didn't leave there and take that order and then put it in the slot machine, and then the crafts table, the poker table, he invests in the stock to our -- the stock market, and hires a private detective. for me the person who was a benefactor. a year goes by, two years goes
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by, finally the private detectors as i found the man who gave you the quarter in the men's room. in our hero says that someone wanted, i wanted the one who left the stall door open. [laughter] why, but i like the story. as i thought about it, it actually is a pretty deep point. he wasn't looking for handouts, he didn't support handouts, he supported opportunity. [laughter] judge engelmayer: we are running a little tight on time, but i want to make sure i ask at least this one question. it's been 25 years since tm retired. if he were to look at the trajectory of our country and the court over the last 25 years, what do you think he would say?
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cheryl, you were clerking for him the day he announced his retirement. you've written about his perspective. what would he say? professor cashin: that's tough. let me give you a sense of where he was the year i clerked for him. i mentioned i worked on school segregation cases, it was very poignant for me to be working with him on something that was his life's work. if you are familiar with the , dowellducation cases was the beginning of these three cases in the 90's where the supreme court essentially says it's time for federal courts to stop policing school segregation -- school desegregation. this was very painful. and it's clear that we were going to be writing his dissent. beginningld see the
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of the erosion of school integration. and he felt utterly powerless to stop it. i recall the most painful day of that year clerking for him, him rehearsing in the chambers with us what he was going to say to his colleagues. like amrying out things i supposed to keep telling black kids is going to get better? and then he told his painful, tragic story about a black man he met in his civil rights years, who said he really wished he could wake up and be white. he was trying out these really , he was not successful. his best day on the job. it was not his best day. to his colleagues credit, they
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died to put the stake in school to segregation. back at day, he was work and back to being jolly. i wrote a piece about justice on the case that that starts with a k, that was a primary example of his universal empathy. i wrote this piece that said i really felt -- obama was , still isat the time for a few days. that i feltis piece that the multiracial optimistic coalition that would barack
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obama into office twice reflected the society i think marshall imagine the reconstruction was supposed to bring about. he loved lbj, he had wonderful lbj stories. -- toluctant to say conjecture about how he would feel now. that i thing i know think he would clearly find what happened in public education today, and the fact that black and brown children are more segregated today than they have ever been quite depressing, but he did have his ability to get up and keep doing the work. hardened byould be this new generations of young people who are fighting the good fight on the things they care about. judge engelmayer: others?
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it was a clerks reunion in 1987 and an early former clerk -- it was a very depressing speech about how unions were about celebrating things, there was very little to celebrate at that time, during the reagan administration and his former clerk thought our country was going backwards rather than forwards. it was a very grim for trail. timehis was during the when different law clerks were supposed to stand up and give reminiscences. but after that, we were early in the process, but the justice stood up after that talk and walked to the podium and responded very movingly, making very clear his disagreements with this former clerk. that the justice's
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was for the poorest black child in mississippi to have access to as same quality of education a child born into the rockefeller family. the rich family of the time. that his dream was unattainable. but progress had been made and would continue to be made. moreover, he said even if we ever got there, it was still a wonderful dream to have. it change the mood of the evening into a mood of optimism. it's hard to speculate in a different situation when it would have been like, but he had an enormous reservoir of optimism in him, and it came out and across quite frequently. in very important times. >> i agree can really. up.ever gave
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judge engelmayer: i will offer a thought, which is he was pragmatic, and he was also an optimist. he took very much the long view. use to say it to 80 years for the reconstruction amendments to, long, we've got to patients. i think he would find much to celebrate over the last 25 years with the hesitations and reservations that people have mentioned, the election of the first black president. if you look at lawrence versus texas and same-sex marriage cases not as a part of his jurisprudence that was libertarian about freedom to act within personal spaces. he wrote a decision early on that said you can't criminalize possession of obscene materials in one home, you can draw line between that in those cases. he would celebrate that. theink he would celebrate perfusion of public interest law. this is the man who built what amounted to be the public interest firm in the united states.
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and now it's got effective facsimiles in so many different areas. i think you can see that is a different thing. i think he would be thrilled with elena and justice in the mayor. -- justice sotomayor. let me turn the floor over to the marshal clerks. if any of you have a brief memory or question, please come to the podium so that those in the other courtrooms can hear your thoughts. the room and he the thoughts brief. we don't have a lot of time. please verify yourself and your year. >> i was a clerk in the october return of 1990 with cheryl. two quick things occurred to me for my time clerking. the death penalty. this was the year the cheryl legend that judge brennan retired. we already been in a long
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process of the dismantling of a lot of things that were very dear to the justice, but he had an amazing spirit. speaking to this time, it just seems to me that he was always taking the long view. but inspiring us, telling us stories and rallying the troops, never giving up. there's a saying from a philosopher i admire a lot that tommy something important about justice marshall. does oneot by wrath kill, but my laughter. come, let us kill the spirit of gravity. i remember picking up something that cheryl mentioned, and oral argument i think the case was. versus louisiana in which the state was arguing that they should forcibly give this man psychotropic drugs to make insane enough to execute him. saying enough to execute him. enough tom sane
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execute him. this was something he did from the bench, as was humor from the bench. he was asking the advocates for louisiana how you administer these drugs? he said it could be by injection or orally. and he said next time you give him the injections, why don't you just put enough in it to kill him? but hesaid the 14th -- made a very striking point with that little pointed bit of humor, and i think that was the spirit of washington was happening. i think you would bring that spirit and encourage us to have that spirit today. >> and david wilkins, i clerks for the judge in the 1981, 1982 term. my former dean and current dean and here, this is the place where i had my first job with judge feinberg, we have several
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numbers here. it's quite an honor to be here. i want to make three really quick points. one is, to be got on one justice kagan said, justice marshall would have been one of the most famous people of our century if he had never set foot on the supreme court, i just want to say that his legacy, it's not just public interest law. the fact that we equate the legal profession with social justice is because of the campaign that justice marshall and charles hamilton houston and others waged in brown versus board of education. that is the reason why we did it and that is the enduring legacy we need to keep alive. ,he second is about the stories the stories were amazing that one thing to remember about the stories is they weren't just about seeing people. -- about famous people. his greatest stories were about ordinary people. marshall, every clerk, every person in the clerk's
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office by name great he would tell these amazing stories about them, which is the same kinds of stories he would tell about the ordinary people that he met. my contribution that i wrote when justice marshall died was about the relationship between the stories and his great ability as a lawyer. justice is narrative. and he was a master of narrative. the final part is so many of the stories were about his family. goody, john, sisi, little sissy. his entire family, including his extended family, which is law clerks all became a part of. there's one member of that extended family who was with him the entire time on supreme court, sisi was in the solicitor general's office, and that's mr. gagne, who was so much a part of everything we do. he taught me that to be a great
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to be about justice, to be about narrative of ordinary people, and to be about family. for that, i'm eternally grateful. thank you. >> and myra feinberg, clerk for , 1974. marshall in 1973 that was the year of watergate and the last case of my term was a case called united states versus richard nixon which led to the resignation of the president. the story and wanted to tell had to do with your question, paul, about surprising views of justice. court, theg of the clerk's office would role in all of the briefs for the upcoming sitting in the law clerks took turns choosing which case they want to work on thinking they were going to take the big case
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the justice marshall would clearly be interested in writing on. most case, the big case people have never heard of. it was the case that involve the issue of perverse discrimination, which was -- reverse discrimination, which was coming to the supreme court of the first time by a white student denied admission to the university of washington law school, who claimed he had been disseminated against because of an affirmative action program that the school had. at the end of the day, the case because he had been ordered by court order into the law school, and he was graduating the time ports were getting around to writing an opinion. this was back in versus california three years before. the thing that surprised me is that he would think you know where justice marshall is going to come out on this case.
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and he was really troubled by this case. because he believed so profoundly that people ought to be judged on their individual that iand he said to me know where my constituency expects me to be on this case, he was really profoundly troubled at the idea that anybody would be discriminated against on any grounds. image in the panel's authority. >> thank you. and the jackson, i teach law at harvard and i had a great privilege to clerk for the justice in 1977, which was the body term. i want to say thank you to the chief judge and everybody involved in this remarkable events. in the second circuit, he recommended me to justice marshall.
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i also clerked for judge maurice lasser the southern district and it's always a pleasure for me to be back in this wonderful courthouse. i have three comments, first, i remember recommending to the judge that we grant a motion to extend the time in which to file a server edition. i didn't think this was a big deal and he said look here, and i looked, and he's pointing at the signature line. i said what is it? he said who signed that? i looked and said the lawyers secretary. what do the rules say? the rules say it has to be signed with the lawyer. denied. the rules are what protect us, it is a theme throughout the clerkship. .2, mrs. marshall agonized over his dissent in that case for a long time, or his separate opinion, is a very complicated case. by then, he had decided that for affirmative action intermediate
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scrutiny, rather than strict scrutiny would be appropriate approach. in his opinion, my memory is he began by resorting to history, as so many of you have talked people400 years ago, his have been brought here in chains and slavery. and he continued and brought it up to date. the last thing i want to talk about doesn't need saying because we all know so much about his amazing deeds, but he wonderfuly a storyteller litigator, but he was active. he acted his ideals out. here's one very small example. my year, to return ice and 77, there were two women clerks out of the four of us. in my class in law school, there were 15% women. in equalitylieve for one group, he believed in it for all. judge engelmayer: barbara.
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glad. barbara underwood, the state solicitor general i clerked for justice marshall in the 71 term. i was his first women law clerk, and only the fourth at the court . that may seem strange to most of you. this was a time when many judges, including judges who thought of themselves as anti-discrimination judges would say openly but i couldn't have a woman law clerk, after all, we sometimes stay late in the office. and what would people think? [laughter] i won't name the people who said that, but you would be very surprised. justice marshall was ahead of his time on the issue, as with many others. he cared deeply about all kinds of discrimination, it and in particular, about termination against women. he told me it was racist to think that only negroes needed protection against discrimination.
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i thought i would just tell you a little about how i came to be selected and talked about the call. the judge for my clerkship recommended me at that time, interviews were being done by former law clerks. i went to visit a former law clerk at his firm. he filibustered for the whole half-hour and did all the talking himself. -- he saidlly said is there anything else you want to know? i said maybe would like to know something about me. and he said yes, there actually is a question -- don't take this the wrong way, my partners told me not to ask this question, but it's really very important. how do you feel about dirty jokes? breathort of took a deep and said well, if they are funny, i laugh. [laughter] i sort of thought that was the end of it, and he said this is
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very important. the judge likes to be able to tell dirty jokes and not be concerned about them. he also likes his law clerks to increase his repertoire. [laughter] not true, think, actually. but that is what the person said. i went back to the d.c. circuit and told my fellow clerks about this interview. i got a call for an interview with the justice, and my fellow law clerks started plying with dirty jokes. to tell the justice. [laughter] but i triedy style, to memorize a few. [laughter] and i walked into his chambers thinking can i really say have you heard the one about -- [laughter] somehow this at all gotten back to him.
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maybe not every bit of it. at the idea that there was problem. because when i walked in, he put his arm around me and he said i hear there's been some nonsense about my not wanting a woman around here. shit.s a lot of bull he proceeded to ask me about recent case he had been working on, perhaps for the more substances -- substantive law interviews that people have had. discussion, ats the end of which he also gave me the job. judge engelmayer: thank you, barbara. i think this concludes our program. just one more. go ahead. >> i didn't mean to prolong it. grateful all be very for bringing us together today.
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wanted to make two observations. judge engelmayer: introduce yourself. doug ginsburg, 74 term. two points. one, glancing referred to as a point about rule formalism more directly. to keepit's important in perspective that the judge believer in great american constitutions, starting with the courts. of the booksubtitle american radical is entirely misplaced. radicals andn for all the different movements that had arisen out of the plight of the american negro.
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lawexcept the use of the and order procedures. second, while the stories he told he is never the hero. never. [applause] >> i said at the beginning that -- you can see that it was richly validated. can be have a round of applause? thank you [applause] >> let me turn the floor over
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back to chief judge jackson. >> thank you to paul for his spectacular job. [applause] and to atacular -- spectacular man. we are so grateful for these remnants. as you sat on the bench with thurgood marshall -- align >> tonight on lectures in history, professor joel teaches a class about freedom summer, 1964 black voter registration project in mississippi. is a preview. -- here is a preview. reading,ds engaged in here is a volunteer. this is one of the freedom


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