Transcripts For CSPAN3 Justice Thurgood Marshalls Legacy 20170703

Thurgood marshall. This is dedicated in this courthouse where he served on the Second Circuit. We welcome our cspan audience to our proceedings as well. Our gathering is at the intersection of two initiatives which have engaged the courts of the Second Circuit the last two years. Initiatives, which i had the privilege of proposing which have taken life because of the creative and dedicated work of remarkable colleagues of the bench bar and our court staff. But first, the 125th Anniversary Commemoration of the second court of appeals chaired by Richard Wesley has several components, including scholarly values and Public Events as we take stock of our past to better understand how our work has evolved. So as to better meet the challenges of the present and the future. The second initiative, justice for all, courts and the community is a project of all the courts of the Second Circuit. A project which, through a wide range of Civic Education ongoing 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. Early in the new year, we will be going live with our Civic Education website, which can be found on which youll be able to find on the court of appeals website and we invite you to explore it. Thurgood marshalls life is very much a part of both of these initiatives. As to our courts history in 1961, president john f. Kennedy appointed Thurgood Marshall as a Circuit Court judge in this court until 1965 when president lyndon b. Johnson appointed him first and solicitor general of the United States and then as an associate justice of the United States Supreme Court, the first africanamerican appointed to that highest court in our land in a career on the court that spanned approxima spanned 32 years. In this building, Justice Marshall occupied chambers on the 20th floor. His successor in that space, our belov beloved wilfurd who occupied that space succeeding Justice Marshall. Over the years, judge feinberg had an opportunity to move to bigger quarters as he gained in society but never level Justice Marshalls chambers. He said to me, if its good enough for Thurgood Marshall, its good enough for me. Second circuit marshall wrote 98, 12 concurrents and 12 dissents as david on our Staff Attorney Office noted in his article for the 125th anniversary collection of biographies of judges of the Second Circuit published by the cornell law review. Now, in the last few years, we have taken steps to assure that Thurgood Marshalls legacy is appropriately honored here in this courthouse. Two years ago, Pulitzer Prize winning author of the devil in the grove, and the dawn of a new age in america delivered the lecture of our court about marshalls courageous defense in 1949 of the four young black men in lake county, florida, accused of raping a white woman. In our lobby, as you know doubt observed, everyone who enters this building will see the photographs of various aspects of Justice Marshalls incredible career. In development with deep appreciation to circuit judge ralph winter and southern disstrict judge Paul Engelmayer and our testify require specific library team headed by lopez is an exhibit of the life and times of Thurgood Marshall as a civil rights leader who worked tirelessly to rid this country of racism and segregation. As the executive director of the ncaap and brown versus board of education and solicitor general and jurist on the Second Circuit and in the Supreme Court, you will be able to see the videos and hear Thurgood Marshalls voice arguing in the Supreme Court. Youll have a sense of the impact on the world with which he interacted. Moreover, students of all ages will be able to explore further the legacy of Thurgood Marshall when this spring we innauguarate on the fifth floor of this courthouse a Civic Education and youll be able to see the life of Thurgood Marshall. Thats a project which i cochair with judge victor morero of the Southern District of new york. Today, we are graced by representatives of the marshall family. His son thurgood jr. , his wife teddy, Justice Marshalls grandson patrick and with great thanks to ira feinberg, we have with us here as well an Outstanding Group policy. The executive director of the American Law Institute and former dean of the ny school of law and leading expert on environmental law. A highly regarded litigator, Sheryll Cashin, a distinguished scholar of social policy and judge Paul Engelmayer. Without further delay, i turn the proceedings over to judge wesley. Judge wesley . [ applause ] three seats left. I have to say, im a little nervous standing in the well are such a distinguished panel. Im glad i havent been a lawyer for po yea30 years. I dont know how id fair with the group up there. A bit of administrative stuff. Please turn off your cell phones. Please turn off your cell phones. If they ring, i will be very unhappy. Thank you, chief, for your kind introduction. In 2014, the Second Circuit resolved to present a series of programs during the 20162017 term to commemorate the 125th anniversary of this great court. To that end, a committee of judges, Court Personnel and lawyers was presented 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. Todays Panel Discussion is the fifth in a series of programs planned by the committee and executed through the hard work of the court family and its friends. In the next few months, Court Personnel will reenact famous appeals heard at the court. A distinguished scholar will deliver a First Amendment case. A panel of lawyers and judges will explore the circuits relationship with its state high Court Cousins with regard to certified question procedures and much, much more. A copy of the calendar of events was given to you and is available to you at the Registration Desk and also is available to you on our website. Todays 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 africanamericans during the 20th century. I suspect Many Americans could tell you that Thurgood Marshall was the attorney who successfully argued brown versus board of education but i fear that a few have a sense of marshall as a historic figure. And id confess that i was among them until i read richard kugers most magnificent book. Recently, gilbert king in his book mentioned by the chief, devil in the grove, gives us a sense of the america in which marshall lived with daily danger in fighting racial prejudice and injustice. Marshall, as the chief said, has a connection to this court. He served here for four years before being appointed solicitor general by Lyndon Johnson in 1965 and later the Supreme Court in 1967. A great year for me. That was the year that i graduated from high school. Makes me feel old now, to be honest with you. Following the Supreme Court appointment, he became the circuit justice for the second serk k circuit justice. Its sort of a judicial godparent for the circuit in d. C. Looking after us as the Second Circuit. It had been our intention to begin with a presentation by marshalls 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 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. Its clear that ralph treasured the experience. Judge winter delivered a eulogy at marshalls funeral in 1993 and a copy of that eulogy has been provided to you on a program produced by our library staff. With your indulgence, let me read to you from a several small portion of this memorable address. Marshall was appointed to the Second Circuit only on an interim basis, the method by which judicial appointments were made while congress was not in session. The judge served on an interim basis until confirmed or not confirmed. For marshall, the interim was long. Eight months on the Senate Judiciary committee and 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 judges office. Can you imagine that, having to pick up your files and move them around . I try to think about my colleagues accomplishing that. Hmm. Back to winter. In spite of the strain of serving as a judge without being confirmed, marshall carried out his responsibilities with his characteristic goodhumored perspective on life. Most famous men or women rarely live up to their press clippings 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 loveable 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 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 and loved by his clerks and in the imprint of his personality is stamped on them. Thurgood marshall was the Irresistible Force for justice, the i am moveable 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 that we have of him. Today we will hear from people who worked at the Supreme Court with Justice Marshall. Marshall had a tremendous influence on the Juris Prudence as a lawyer and as a judge on the high court. Todays discussion through todays discussion, well learn how marshalls influence on our national Juris Prudence continues today through the law clerk he trained. This will be a memorable afternoon and evening. Our panelists knew one of the great figures and leading to the discussion is Paul Engelmayer, 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. He clerked at the d. C. Circuit and following a distinguished career at the United States Attorneys Office in the Southern District and actually a stint at the solicitor generals office, judge engelmayer joined a firm, wilmer. It sounds like a law firm you want to spend 700 an hour on. And thats for the associate. I know. You can tell ive been off the bench for 30 years. In in 2011, judge engelmayer filled the vacancy created and senator grassley gave the judge a hard time for a few weeks but ultimately thought the better of his hold on the judges nomination. And for good reason. Judge engelmayer on july 26th, 2011, was confirmed by a vote of 980. Now, ive gone back and looked at the vote on june 12th of 2003 and my vote was 970. Judge engelmayer, i dont know how you got that extra vote. I dont know. 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 set of challenges that we faced in making today a reality. Ladies and gentlemen, i give you the honorable paul a. Engelmayer who will introduce our distinguished panel and serve as a moderator for todays discussion. Judge engelmayer . [ applause ] thank you, judge wesley, thank you chief katzmann and i want to thank everyone who is here and in courtroom number 1703. Tonights turnout, which encompasses 650 people is a record for this 80yearold courthouse. Part of that is because we have a worldclass panel. But it also speaks, i think, to the giant to whom were paying tribute tonight. Its been 25 years since he retired and nearly 24 years since he died. But Thurgood Marshall, the lawyer, Thurgood Marshall the justice still inspires us. He was transformational. Thanks to his brilliance and courage and vision in so many areas, civil rights and civil lib b liberties, our role in 2016. Our panelists tonight have one thing in common. Each of us have had good fortune to spend a year clerking for judge marshall who was already a Living Legend by the time we got to meet him, including ralph winter who unfortunately was unable to attend tonight because of an illness. Ralph, as you heard, was his very first clerk on the Second Circuit and Sheryll Cashin clerked for him in his final year in october term 1990. In between, greg discakant and ricky revesz clerked in 1984 to 1984. Elena kagan clerked in 1987 to 1988 and i clerked the following year, 1988 to 1989. Elena, in fact, along with her coclerks trained me and my coclerks. And so i can say that i had the rare privilege, although i cant say that i had the presence to appreciate it at the time, of being clerked by one past and one future Supreme Court justice. Each was shaped by the times, by the courts changing composition and by the years docket. But certain aspects of a clerk was perennials and thats what court clerks called him at his request. He didnt want to be called justice or mr. Justice or at the most formal, judge. He in turn called us knuckleheads and other nicknames that perhaps well get to tonight. So one thing that a t. M. Clerkshipment was lots and lots of time with him. We would spend an hour across the conference table from his clerks in his private Conference Room near his cherished and the court heard argument in 170 cases which was fairly typical for his tenure and so there were lots of those hours. T. M. Would discuss the cases that had just been argued, hed make notes in his behinder with his blue pencil until he arrived at a decision about how to vote. To be presence as he talked through cases, whether landmark cases or soon to be forgotten cases was a thrill. It was literally being a witness to history. And then would come what the four of us my year called story time. T. M. Would talk about his roots in baltimore, his early career as a criminal defense attorney representing black defendants in the deep south charged with murder and rape and who were facing the Death Penalty if mob justice didnt get to them first. The civil rights cases that he brought leading up to and following brown, his years on the second serk kcircuit, on th Supreme Court, his views about law and life and politics and current events, his heroes, his villains. He was a master story teller, he was very vivid and blunt. He didnt pull any punches. As you heard, he was riotlessly funny. My year he had just turned 80. There was constant speculation about when he might retire. One day he told us he didnt plan to leave the Supreme Court until age 110. And we asked him what would cause him to leave then. His answer was this. And i quote, shot by a jealous husband. So so those post conference discussions, as much as anything, were how t. M. s clerks got to know him. Our discussion tonight, i hope, will illuminate this great man who we so admired as well as his work as a Supreme Court justice. Im going to begin in a moment by asking each of our panelists to take a moment and share with you what their year with t. M. Was like. Im then going to put some more substantive questions to the panel, a number of whom have written about Justice Marshall and ask their discussion. I plan to use a fair amount of time at the end. Apart from our panel, we are fortunate to have two dozen other marshall clerks, including if i may single out an article 3 colleague, judge douglas ginsburg. Well open the podium to former clerks who wish to share a brief thought or story about t. M. And to get the panels take on what they said and then, time permitting, well take questions from the audience. With that, lets get started. Im going to begin by asking each of our panelists, what was your like working for Thurgood Marshall. Elena, lets start with you . Well, first let me say how thrilled i am to be here and what an honor, so chief katzmann and judge wesley, thank you for inviting me to this wonderful event. In the room i see so many judges from the Second Circuit and former t. M. Clerks and part of the justices family members. I think that the t. M. Family really is a family and its wonderful to be here for this celebration. So it sounds like my year was like your year, paul, which i guess is not surprising since we were in adjacent years. I mean, i think that when youre a clerk at the Supreme Court for anybody, you feel as though youve won the lottery. Its a great job. Its a very heady kind of experience for a 28 or 30yearold but i think that there was Something Special about clerking for Justice Marshall or, as you say, we used to call him t. M. Or just judge because you were aware that you were clerking you said a Living Legend. He was he was not just a Living Legend by the time we began to clerk for him which was pretty 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 present company accepted. No. You know, they are known for what they do on the court. Sometimes theyre not even known for that. But i mean, i have to think that he is if theres anybody else like him, im not thinking of it. Somebody who had never served a day as a justice of the Supreme Court would have gone down in the history books. I think that he was the greatest, most influential lawyer of the 20th century and to walk into that set of offices and to realize that you were clerking for somebody who had that place in American Life and not just a matter of the important things he had done. Why was he the most important lawyer of the 20th century . It was because he did more justice for more people than any other lawyer did and to feel as though you had been picked somehow you had won this lottery, you got to spend a year with this incredible man was a very, very special thing. And then, as you say, it was the year that was not a moment when you felt disappointed. I mean, he was larger than life and whatever you thought about him going in, you thought more coming out. And the times i remember most are the times you remember most, paul, which was the times we spent in our office talking about cases and also talking about life and it was, he walked into his office and you would start with the cases and you would go over every case and you would talk about what to do about them and he would ask questions and you would give your views and then he would tell you sometimes that your views were wrong and i remember when you pressed too hard on something where he disagreed, he would point to the commission on the wall and make you get up out of your chair and go to the commission on the wall and read whose name was on it. And then the other thing he used to do on those occasions, you know sometimes when you my clerks do this to me a lot. They say, look, you have to do this. You have to vote this way or vote that way or write this opinion or write that. And he would say, there are only two things that i have to do. Stay black and die. So you would have thought we would have learned to avoid that grammatical construction, you know . But we would talk about the cases and then at a certain point when we were done, he would segue to, as you say, storytelling and he was the greatest storyteller ive ever met in my life. He was just a raconteer. It was the material. Not a lot of people had the kind of stories that he had to tell about the changes that he had seen in the country, about his own legal career, his i mean, they were they were incredible stories of his especially of his years in the Legal Defense fund crisscrossing the jim crow south. But he was also just a phenomenal storyteller. He could and it was like 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 thought, why are we laughing so hard . This is a terrible story, you know . And he never repeated a story. This was the most remarkable thing to me. I dont know. Its become even more remarkable with the years. I feel like i repeat a story on thursday that i told my friends on monday. And i he never repeated a story. It just a new one would come out every single day, every single day. And the thing i most regret about my clerkship year was that not a one of us had a sense to just write them all down as soon as we left his office, because, you. To me a terrible loss, just the the way he spoke, the way he told stories, the kind of history that he had to tell. So it was an incredible time for me. It was a year that i think of as one of the luckiest things in my life that i had, that i got to spend it there with him. So, with that. Okay. I enjoyed all the clerks we loved it. Hopefully we dont repeat ourselves too often in saying how important the privilege of working with tm was. But it was pivotal in my life, my coclerks, my colleagues, a wonderful experience and great great family. I clerked for tm in 75, 76. One year after water gate ended with the mixon resignation. It was a different time. When i was hired i applied to Justice Marshall was one of my long time heroes, i was thrilled. I was clerking for the time at skelly right. It was an old Drinking Buddy of thurgoods. Item sure youll hear thurgood has many drinking buddies ks they tended to enjoy bourbon. And i got the call from marshall that said to me if your good enough for kelly right youre good enough for me. I later learned it was one of his lines, if youre good enough for Henry Friendly youre good enough for him, if youre good enough for ed whine feld youre good enough for him. But dont matter, he was a humble man in the end and weathermaker desperate to be good enough for him. It was an interesting year, november 12, 1975. Justice douglas resigned from the court under pressure from his colleagues. In 1975 paul stevens were nominated to the court 19 days later. December 17, the Senate Control senate learned to moved to appoint justice tm and he served out his time. It was a different time, one could say. The biggest case of our year, buckley against fa lay owe, money equal speech case, the death case which was near and dear to Justice Marshalls heart, greg against georgia. We wrote the sense which were fun and exciting. We wrote the most boring court opinions. Chief Justice Burger and Justice Marshall were not close and somehow we got the dogs. I wrote a i drafted for the judge a opinion on the constitutionality of horses and bureaus act. They tended to be unanimous opinions but Justice Marshall cared about the draft and was noless demanding in the quality of majority of opinions that we got to write our draft as for the desent. And we got to be members of the family. Goodys here im elated to see him. He was summer assisted in the u. S. Attorneys office for the Southern District of new york for new york fans. And we got to foe sissy and john and be apart of the family. It was an absolute thrill. Well, i join this distincted panel thats giving thank for that great opportunity and seeing to chief judge cast lin and judge wes lynn thank you. One of the highlights of my life was recommending allay that kag began for a courtship with Justice Marshall and going to visit and seeing what her time there was light. I wont tell you about my interview for the clerk ship. I had one horrible colds where you have no voice and terrible thing are coming out of your nose. And i which would db called the clerk and gapsed and said could it possibly postpone the interview. It was a long pause, you dont cancel an interview with judge marshall. So, i come with my box of tissues and the judge looks at me, i cant get a word out. He said my daddy had a cure for what you had, you take client nine and whisky and you leave out the climb nine. And he said do you want the job. I said thank goodness. Yes. And they push me out of there i dont think nobody wanted him to get a cold. So, it was the era of many cases, there were about 183 that year. And when the cart would come down the hallway, the squeaky wheels and wed have, you know, 30 a day to do. I remember the first day it took me all day to understand wat issue was, i thought there was no way im going to be able to do this job. And the judge would have a blue pencil and write comments on the petitions. We wrote memos on every sing petition, he was not in a sert pool and he was proud of that. And the comments was one of the ways in which we learned. We learned a lot about what he thought matter requested which battles he thought were worth fighting. Just two other words, one teasing was the mood of the came bers, constant teasing set the tone by the judge. Nicknames of every sort. I was the only woman in this chambers or many other chambers, or two other women, clerks, and there are lots of names im not going to repeat. But, at one point, i dont know, one of my coclerks had the brave moments to say to him and say why do you call us these names. He said youre going to get called worse. It was a really good lesson. My year was october i started. It was a president ial election, president reagan election and the senate chain to be publicly controlled. And there was a moment when Justice Brennan came to the chambers and the two justices looked at each other and theres this sense of oh my goodness the world has changed and they walked down the haul arm and arm. And it feels a little like that to other people at other times as well. My year also my year also had a women if the military case, my fellow clerks told me i wouldnt allowed to take part in it because i was biased. And abortion cases and many others. Look, Thurgood Marshall was my hero my whole life. I went law school because of the Civil Rights Movement. To me the can to hear his stories and learn from him was incredible. The big surprise to me was an outstanding lawyer he was. And i think about him just about every day. Im particularly honored to be here. Its wonderful to be the panel, my fellow law clerks. I want to go back to the call. By the time that i got my clerk ship, turkey m did not interview applicants. So i was looking in this building for judge feinberg who was another spectacular experience in my life and we were talking to the judge. My coperson and i were in the judges chambers talking about the case. They actually talked quite frequently. The judges naent came in and said Justice Marshall is on the phone so judge feinberg went to get his phone. And the assistant said no, its for rickey. And so i kind of like sheep ishly, it was early in the term, i look at the judge like can i leave your presence the discussion of this important case to take a call from Justice Marshall. But he was wonderful, i can reassure you this will be fine. So i left the judges chambers i went to my desk, picked up the phone and this gruff voice got on the phone and says, you still want a job. And i you know i said yes, i would love this job. And he said good, you got the job, see you in july. For a minute, i wondered if this was some friend of mine, but i didnt quite foe how you go about figuring this out. It wouldnt obvious, what do you do. So, you know, i figured it was okay, it was really. I waited a few days and called one of her present clerks and i didnt think i couask if this w really and i said have you guys figured out wen were to start. And she said like yes, come july 14th. I didnt meet him until a few weeks later. 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. I mean, we dont if our life times get the chance to meet a lot of people who really changed the course of our society. And and muchless so do we get a cans to actually spend literally hundreds of hours in their presence talking to them or at least hearing their stories, since it was mostly a oneway conversation, although every once in a while we actually did get to say something. And this was some significant things about the term, the court decided garcia versus san antonio Public Transit authority overrules national authorities, that was a very important case. It was also the year in which the number of Death Penalty cases skyrocketed. This was 1984, and in the first few months there were Death Penalty cases all time. Wed split them up and stay up essentially most of the night because these cases ended up getting reaching the court after midnight for execution scheduled for 2 00 a. M. We knew the papers were coming because the Clerks Office would get copies of the papers filed if the District Court in the afternoon, it would twaenl make it to the Supreme Court in the evening. It was a lot of these cases, we were up there in the middle of night most of the days. We were talking to the judge and said we didnt imagine it would be the many cays like this. And he said oh, dont worry about it, itll come to an end pretty soon. And i looked at him, he said yes, you know theres an election in november. After the election you see a lot fewer of these cays. These are das running for election. And it was powerful obviously and he was right. But there were cases after that but the volume went way down. And he cared enormously about each of these cases. In fact, these papers wouldnt get logged in until late at night and it was a protocol about it. The justice and sissy, his spectacular wife would disconnect their phone in the evening. But wen this was a Death Penalty case coming wed have to call sissy in the afternoon to tell her that wed be calling late at night. And then shed liu the phone connected. So, there was a fax machine, i think only one at the court it was if the Clerks Office and the circuit justice would sit in the chief justice Clerks Office waiting for these papers to come. And justice wyden was a circuit justice in the case, and when the cases came in Justice White went to ask each clerk how is your boss voting. And i said Justice White im going to just run up the chambers and call the justice. And he said, what document, like, dont you know how hes going to vote, he votes like stay all the executions. I said yeah, i know that but he wants us to call him and he wants him to describe to him the legal issue. If someones 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 actually very late at night but he couldnt really argue, i had to call my boss. So i called him and he come back and he said well, how is your boss voting, and i said my boss is voting to stay the execution. So, and that was unusual, i was the only law clerk, all of us when we were there we were the only law clerks body to place those calls. The thing i remember the cases were fascinating, it was an enormous privilege to work on them. But what i remember the most was like, my colleagues in this group were the stories. And and often in our year, the stories, he actually came to us. I shared an office with my colleague rick pel das and it was a huge arm care in that office. And in the afternoons the justice often stopped by and sat if that chair and started telling stories. We also came in on saturdays as did he, and sometimes saturday hed come in and go straight to the chair where hed sat and tell stories. And it was a patrol call if the protocol in the court that if other chambers stopped by when the judge was telling the story they had to stay for how ever long it took. It was an unwritten protocol. It was a particular saturday whereby the afternoon, id say there were 33 clerks, id say 25 or so were in the office, the office wouldnt that big. Most of them was sitting on the near, half were starving because they hadnt had lunch and the justice was still telling stories. The topic of that day was the strategy leading to board of brown education. What was in the message was that while the goal of all this litigation that stand more than a decade was eventually bringing to the court the argument that separate but equal was a violation of constitution. The last thing he wanted was for this argument to come up too soon because he thought that without all the building cases the court was not going to joseph rule plus c. So what he explained to us, it was a strategy about how to keep this argument away from the court. And all the thinking that went into how not to answer a question if this question was ever asked directly in an oral argument in the early cases. It was amazing, i think given the way our society has involve evolve he had absolute control of how these arguments were presented. In these issues how ever important theres going to be lot of different groups competing for Foundation Funding and someones going to have an idea that theyre going to do ber by bringing the argument ahead of someone else. And by force of his intellect, personality and press steej he was able to control the way these were presented to the court over a period or decade and i thought that was the most apazing accomplishment and the biggest take away i got. It is such an honor to be here with the tm family. And i see so many faces, and i wont call any but im 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 Justice Marshall was the best year of my life. And it started just the same as you. I got a call, no interview, you still want the job, want the job, yeah i want to job. And when i started, i wouldnt 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 with this rough voice saying sheryl, he wanted me to write a statement for him and he dictated what he wanted me to write. And i was like i just got a call from Thurgood Marshall. He took us to lunch, i was the only woman too martha in chambers. He took us to lunch in the fist week, the first week he said to me, when are you get married gal. I was like why are you asking me that and nobody else, but he was very preoccupied with when i was getting married, and i was gal. For me, Thurgood Marshall went to college with my grandfather at lincoln university. Not only were they colleagues they were Fraternity Brothers together. For me, it was like he was something of a surrogate grandfather, and i relished for me the highlight i would in addition to the time clerk conferences with him i would often just go and sit with him and talk to him and he would tell stories about martin, martin carpenter was a lot isaac him, a crazy guy who was sort of a cut up in school and didnt get serious until later. And by the way, Justice Kagan i did keep a diary because paul had warned me about these stories. And i would run back to my desk after every session and write down stories ks and we need to talk about what if anything 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 biographies of tm, how language ton hughes was the person who pierced his social consciousness. And i can get into that later. But the stories, and i recall these moments with tears, as you said would be streaming down your face and we could make you cry both with tragedy and comedy and it was like pure gold. I mean whether dark or funny hed do that to you. Everything from going down to the village with Langston Hughes to partying with a crowd to his stories to the south, gilbert kings excellent book, double in the grove its fantastic. He once narrowly escaped a lynching to his 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 some very boring one meritime case, very boring majority opinions i got to help him craft a descent in a School Segregation case. In that context i read every single schools case that had ever been decided by the court. And i spent a great amount of time talking to him about this and this was his last year in the court, active year if the court. He was 82 and feeble and yet when id talk to him about some of these cases, he would just light up, you know, particularly early cases, a case from 1927, a case in which the china girl had to basically be a negro. In this moment i can feel a glimmer what it must have been like to be a lawyer at adf. So that was very special for me. A signature moment, ill never forget this, and scott you may remember this. Toward the end of the term im twilling away on this dissent, hes having a conference with us about our work and when were doing. He asked me gal, when you gone have that draft to me in the school case. I said well, i think i need about a month to get it together. And he paused and looked at me and said, i love you gal, but you got a week. And you know, it reminded me i learned so much in gilbert kings book about what that work ethic done. And damn if i didnt get it done in a week. To this day when im on a tight deadline, i remember that you know, you think you need longer than you can but somehow youll manage if you just bear down and get it done. And, you know, the other thing about this year, and then ill wrap it up. This was the only year on the court for Justice Marshall without brennan there. And, scott will remember this, he was the senior liberal justice and for the first time on the court, hes having to kind of assert a leadership role and this man who had been silent at the bench suddenly started talking. And he started like and he would ask these questions, not every single case but hed ask these questions that were clearly designed to rattle the lawyers, just go for the jugular and it was delicious to watch. So thats my year. You know everybody was talking about their time with with Justice Marshall so i wanted to put in mind. It standarded the same way. He called me over the summer. I was still hanging around Harvard Law School was taking bar review courses and i was in the law view offices when the call came. I got on the phone, and he said so you still want a job. And i said exactly what rickey said. I said id love a job. And he said, whats that, you already have a job. And of course, you know, im turning white. And i said no no no, no i dont have a job. What i said was id really love this job, and i want this job. I dont know if you already have a job. And this went on you know, like two more times. I dont know if you already have a job. I dont know. Finally he took pity on me. He said okay well, i guess if you dont have a job, you can have this one. You know, and see you july 4th, whatever, july 14th. What have it was. That was my destruction to Justice Marshall. Lets turn now more substantively as Justice Marshall as a tm as you heard tended not to get the majority but he wrote lots and lots of. And working on dissent with tm was really a staple with marshall. Martha you have written about Justice Marshall dissent so item going to ask you to lead off this discussion. What was his he trying to accomplish . Part of the phrase he used very often was pick your battles. That was a surprise tome because i had worked for a different judge who basically sometimes switched hi vote to be able to dissent, he just loved dissenting. And this was a very different idea and it was very clear tat judge had the recognition that he needed to work with his colleagues. That he also wanted to get the kind of attention that comes and not be dismissed as someone who always dissent and therefore not be paid attention to. He wanted to sustain the morale authority that cams from, you know, this is the moment to dissent. And this he was very explicit about, he said we wont have the energy if were going to dissent on every one of these. That was his philosophy. On other cases this were lots and lots of cases where there were dissent. I really watch that pick up over the court of his time on the court. I read all the dissent to write my tribute to him wen he retired from the court and it was very striking that he was bearing witnesses and committed to telling the truths about human beings and peoples experiences, particularly people who in one way or another had been marchalized by society. And one example famous dissent is United States versus crafts, 1973. The majority reject a due process challenge to a filing fee, someone seeking bankruptcy. Its like a butt of a joke. You dont have the money to pay for the bankruptcy. Well, in any case the majority has a statement saying, look theres an installment plan that the court offers so people can pay the filing fee just spread out over a long time and it as up to be weekly, not much more than two packs of cigarettes and a little less than a movie. So in his dissent, Justice Marshall says it is perfectly proper for judges to disagree about what the constitution requires, but it is disgrateful for an interpretation of the constitution to be premised on an unfounded assumption about how people live. And he went on to spain what that am of money meant to a poor person. That is just an example of what hed do over and over again in dissense and he would highlight, heres the details of actual life, and so just bear with me, i read of of the dissent, he accented and identified the life of poor people, minors, native africanamerican, members of religious minorities, noncitizens, fathers, women, rock music fans, anyone who might seek an abortion, student. Residents in puerto rico, members of racial minorities, protesters and people with long hair. And in each of these instances he described, you know, get behind the image. Lets try to figure out who these people are and hear something about their lives. Another was defending the rule of law and objecting to the abuses of power by government officials. And related to that particular sense about abused in his view by judges if their lack of candor, and he would often talk with historical analogies, he was a master of the the analogy. Find a way to draw a connection between this and that case. So just one example, skinner, which i think was your year, sinner versus railroad executive association in which there was a challenge to mandatory good and urine testing for Railroad Workers and the majority upheld this mandatory testing. And in his dissent, Justice Marshall says we have to be careful when people talking about emergencies. The chaim is theres an emergencies, theres dangers and therefore we have to give way. Our usual concerns about searches and seizes and prophesy and then he goes on in a paragraph, remember the japanese internism, remember the mccarthy era and remember the judges have had about approving those thing. There was a sense of history, barring witness to the history, reminding people of the hor. And also really being very very concerned and here its very explicit in one case and ill end with this one. Being very concerned that if the kour course are no longer trusted by the most marginalized in society that that would be terrible for everybody. And there he said that if the government expects the victims of the system to use the official channels to regress and protest then those channels ber be available. Ill jump in. I had very much to t same experience as martha did. And what struck me was what a historian he was and how he tried to use his dissent to unpack history. My year was times for him, a bit of an apop lippic year. It was the 88 and 89 year. It wouldnt clear what it was going to mean. The court heard a whole series of cases that threatened to upset some very important pillars of the law as he saw it, with whether its scrutiny for public action. Court sue respond te took the Race Relations and contracting case and from time to time he was would allow himself to be heard if all that is happening could brown be far behind. He said that. In all fairness he quickly rolled that back and said i dont think thats going to happen ks but he was concerned. He used his disaccepts in one of these cases, the richard case. The scrutiny case. The case where the court adopted scrutiny for affiaffirmative action. The case had come out of virginia. An affirmative action plan that have been upheld at Supreme Court level. T measuring thought it was outrageous that the court was imposing scrutiny and overturning this. He began the decision, and this was important to him to say this is the capital of the confederacy folks, and it ought to be a sign of racial progress when the the capital of the confederacy recognizes a problem of the racial in its mythids. This is our history year. My year was reenstated and i dont think there was an issue that was closer and more important to his heart than the Death Penalty. In 1973, firmen against Georgia Court invalidated the Death Penalty because it was improperly enforced. Tm thought we were done the Death Penaltys done. Reinstating the Death Penalty as to the United States for airplane piracy and suddenly it was back. And and in march of 76, the death case, griffins against georgia was argued and Justice Marshall talked a lot about death. He told us stories, some of which are in the devil in the grove if youve read it, about defending people, mostly black men falsely accused of rape or murder. And if he won a life sentence, a guilt verdict and a life sentence, that was a win. He would not appeal a case in which a life sentence was imposed, because under the law at that time, if you appealed and won there could be a retry and the death imposed. And i just see him right now sitting in front of me shaking his head and saying i have seen so many incident negro men and boys sentenced to death. He always used the word negro, he was not a fan of black and africanamerican, he fought for negro and that was what he always said. I have seen so many innocent negro boys sentenced to death i could never, never support the death. And the case was argued and sadly, for those who are on the tm side of the ledger, by 72 vote, in greg the death was reinstated. I went back before today just to reread the dissent and i was somewhat surprised at its lack of passion. That is to say, Justice Marshall engaged on the levers of the argument. 35 states has enacted these laws, so he was arguing about the terrance and retribution and decide of that sort. And i wondered, why didnt he talk about what he knew, which is the death was often wrongly imposed on innocent people. And i thought as i thought about that, that, you know, at that time, you know, we didnt have the best unfortunate reservoir of the Innocence Project and dna analysis that teaches us that its true, that people with an young due undue number of occasions convicted wrongly. And had he written the decision in his heart which is, i, Justice Marshall know people are are wrongly convicted all the time and we cant sentence them to death. He didnt have a sense to say that he was just a lawyer, hed sound like their mother or wife, so he didnt write that but thats what he felt. As years went by and he was talking about it, he never lost interest in the horrible crime by the state of executing people. On that court, striking as well, the vote was 72 to uphold the death, three justices on that court later said they were wrong. Justice blackman was on that court. He said ill never again tinker with the mechanics of death. Justice stevens was on that court newly confirmed, he said he was the it was the only vote if his career he regrets. So there could have been a 54 reverse outcome and it just didnt happen. I remember the reporter from the Washington Post who was covering the Supreme Court that year called it the most boring term in modern Supreme Court history. But, the case that i remember Justice Marshall felt most strongly about my year was given that that youve probably never have heard of, but it was a really important case for him. Cater math accept versus dickerson Public Schools. It was a case about a young girl, i think it was in kansas maybe, a young white girl who lived in a rural area and who was many 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 poor family could pay. And the question was whether that was a violation of the equal protection clause. I remember it was a case that i was assigned to and i went into his office along with my other clerks one day and to talk about this case and i said to him, judge i just you know i just dont think that you can rule for girl. And he said why not. I said i understood gennesy not a suspect class and education never held to be a faculundamen right. So i think and theres a rational basis for this so i think, you know, its the you have to rule for the School Distri district, in that have to kind of way. And this was definitely one that he did not have to do that, thank you. And you know, people are talking about nicknames, i was shorty always except on the really bad days when i was really really really knuckle head and that was definitely a knuckle head kind of day. And you know, he just looked at me and he 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. Thought it was incredible that anyone would think anything else. And we went back and forth and back and forth on that opinion. You know i would draft something and he would send it back, this is not good enoughism and i would draft it again and hed send it back and say make it more powerful. But he cared so much about that case, i dont think there was anything that was as closer than his soul. And as i said it was an africanamerican child it was a white child in the middle of some big fair quite state. But the idea that the state was doing somebody to deprive a child of a of an education, the opportunity to better your life, he just couldnt imagine it. That also was a 72 case. All right lets move top to another topic. Even knows weve heard of course about tms interest both as a lawyer and on the bench of civil rights. As a justice what other special interests to him. Greg earlier you said lester clerk you want to lead us off . Well, an issue that, you know obviously many of our dissent were on criminal justice and raishl issues and the like. He was very interest in libel law. Now, he theres obviously some relationship between the press and the Civil Rights Movement and of course times against sullivan was you know that in advertisism and in support of martin lieutenanuthe. He offended the Baltimore Office the ballamor afro american was his client. They had a very close relationship, he loved newspaper man. When the brown decision came down the baltimore africanamerican headline read thurgood wins, and of course he did. And so, in the mid70s when i was clerking there were big libel cases. In 74 a couple years earlier gurts had been decided saying that the actual malice standard would apply not only to Public Officials and public figures there could be a category of limited purpose of public figures yet to be declined, to improve people that thrust themselves into public controversy. And so a case came our way, fire stone against time, or time against fire stone which was a salacious divorce case out of florida, mary alice fire stone just sued her husband, he had sued her back for aadultery and cruelty and all this stuff, the trial record of the drug had some powerful comments. According to testimony on behalf of the defendant, extramarital of the plaintiff were bizarre and would have made dr. Florals hair curl. Indications about the husband, he was guilty of bounding from one bed to another. So the divorce was granted, the judge said while he discounted some of this stuff, nonetheless its the courts finding that Neither Party is domesticated. Therefore, the marriage was at an end for lack of domestication. Thy Time Magazine reported this story saying this case had been because of the adultery. Mary fire stone sued in florida because any idiot would know you cant get alamo any granted if the grounds for divorce were adultery so the lack domestication must mean Something Else even though the lack of domestication wouldnt grounds for divorce in florida law. The case came to the Supreme Court where justice windcrest running for the court found that mary Alice Firestone was not a public figure, notwithstanding the 47 articles in the miami he rolled and the articles in the press that she held and the fact that she was a member of the sporting set in palm beach and was regularly covered. And Justice Marshall dissented saying she had whatd he say, that he must assume that it was by court cost that mrs. Firestone became an active member of these sporting set. Then, the thing that caught his attention was the alternative suggestion from the court that although times report was certainly a rationale interpretation of an ambiguous Court Document that that was not a defense. And the justice thought that was outrageous and the get leeway and that was the essence of dissent. By basically he loved reporters, loved tallying around, he sort of grew up if the front page era ben hicks and charles mcar they are mcar they ares play. Let me broaden out the question, other than his views if law were there other so this was a mining statute. The required coal of certain miner claims to make yearly filings in order to keep the claims and the statute says these filings need to be made before december 31st. Failure to comply with this requirement now as you may have already imagined these poor claimants filed their claim on december 1st 32st and this case made it to the Supreme Court. It seemed the was confused about what it meant. Apparently these claimants had got. Advice from employees of the saying any time before december 31st of year would be fine. If the claims were filed by pail which these people had not done, as long as the claims were received by john 17, there was timely and there was no evidence it had bumpeen mailed particular time as long as it was received by january. The justice also dissented indicating the agreement with much dissent. The statute before december 31st it had to be interpreted that way even if Congress Might have meant or said by the end of the year maybe this wouldnt the worlds best drafted statute. I didnt work on the case my cocherk and colleague did. All of us thought that the justice was making a mistake here and very much wanted him to join the stevens dissent. And i think rick felt this most forcefully among us. And we had many discussions about this case. Justice took this very seriously. We were in there in his private study many times talking about this, trying to persuade him to behave drop his position, which he actual felt very very strongly about. And he humored us for a while, but after a while, these discussions actually came through an abrupt end when the justice said with some annoyance in his voice, i was general of the United States. You cant run a government if some court decide before december 31st does not mean what tb just because it might lead to a hash result. Even though has constructioncon decisions didnt make this obvious. From time to time you saw he has the sense of responsibility of a government lawyer. In this case, i think in my mind illustrate that very clearly the fact that, that he came a across with a lot of zero hements. It would not have been crazy for him to join dissenting approach that justice steven, powell and bring fan has taken but in that moment he was the general. And not just in that moment. I had a case like this called torres. It was a case where employment discrimination group, group of latino competen latino employees who said their employer discriminated against him. For some reason the lawyer who filed an appeal did not include one of the names of the plaintiffs. You had suit brought by four plaintiffs and the last wouldnt name, the last one was he going to lose his claim. All of clerks go in and and his view was no the guy lost his claim because his name was not on the notice of appeal. And we argued with him and i remember him saying Something Like this. He said hebs the only thing you can expect if your a litigant if that the rules are adhered to. And the thing i had always counted on if i was a litigant from unpopular people is at least the judge will follow the rule. And you cant have a system where everyone decides whether the rule is good or bad, whether you want to follow it or not and the greatest protection lies in the rules and sometimes it means youre going to have a result like this and thats just too bad and its a great of having a system of rules. And that was so powerful to me. I had a similar experience. We had a case in which a lawyer had missed a deadline. And i did not but it was a death case. And so his formal assistants on the rule and having no patience for bad lawyering clached with his death context. The person was going to lose their habeas whatever. And the exact same thing you cant do the. And he shouted the stamp, ultimately the five of us scott remember this we had to move him it was very unpleasant it was only because of the death context that he changed his vote. Yes, thats when i learned about that value and your articulating it today, now, i understand a little bit better. All right lets turn now to tm as a story teller. Weve heard revenues to this. He talked a great deal about the battles he had fought in his career. What were the memorable stories and more important what were the point of these stories. Rickey you mentioned an exchange you had with tm. So can you lead us on. So, this is something talked about a lot and obviously it was an extremely dramatic moment in his life. So, i was working one afternoon and hes on his way home and he stops by my desk and says rickey id like you to read a transcript on my confirmation hearing to the Second Circuit. As he leaves i call the library and ask him to send me the transcripts. It turns out there was a lot of stuff to read, i think roughly thousand pages and they were all in different books. So, i read all of this, takes most of the night and i learned a lot in the process. So, he said Justice Marshall he was nominated in september 11 1961 and the senate recessed a few days later. So for most of 1962 he served on a recess appointment and shuttled back to washington for several different hearings before the Senate Judiciary committee. This committee was cared at the time by senator eastland who was a segregational list and not pleased that there were now perhaps going to be a second africanamerican judge on the u. S. Court of appeals, it was only one at a time. To say that these hearings were an ugly affair would be a gross understatement. Many arguments were raised throughout the time, mostly by the lawyer and investigator for the committee. So, just to give you a flavor of what came out. The senate the senators going to be focused for a long time of violation of texas law by a private lawyer in texas who had been retained on a case by Legal Defense fund. Director mcallen was a director of the Legal Defense fund. There was no allegation linking Legal Defense fund or any of its employees to these allegations, private lawyer but lots of time and energy and scrutiny took place. The committee complained at length, though, Thurgood Marshall has worked if new york for a long time, he was admitted to the maryland bar and not to the new york bar. He explained he practiced only in federal court, there was no 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, and they were efforts to suggest that he had or at some time had had common sympathy. He explained he resigned from the National Lawyers guild in 1949 over the guilds criticism of the handling of a trial in the alleged economist. Along the same line, the committee focused on the fact a former member of texas has organized sitting on behalf of the na ark cp. He was also the because hes sitting very orderly unlike other sittings and were pot all orderly so this apparently proved something. Justice marshall explained that among those sittings the naacp were independent and he had no connection to any of these things. This process, no good argument was raised. Other things was that he had experience in the very narrow field of civil rights law and didnt have a good understanding of the security how cases that formed the staple of the work of the Second Circuit. He explains what his experience was, he had by that time argued many cases including the important case of the century for the Supreme Court. That did not seem to convince the senator. Bottom line senator eastland did not want to let his nomination come up for a vote. And he was saved by the public senators from new york. Who he held in extremely high regard and extremely grateful and he had different times or snippet of this story but reading the transcript made it come together. So kcompetent nan and jafts threatened to bring the discussion to the floor. The vote was allowed to take place, the Committee Vote was favorable, 114 and also on the floor, 5416. All the negative votes before the senate were cast by southern senate. After the close to all nighter, the next morning with the justice rived i stopped by and i asked him what he wanted me to do with what i had learned. I sort of assumed he was going to give a speech and wanted a draft writing the, but he said nothing rickey. I just wanted you to know about it. So, when reretired from the court, i wrote about this saga ive i figured if he wanted me to know about it he probably would want others to know about it as well, so this included whoever happened to read my tribute. And the 675 people who i understand are here today. Now one of the interesting aspects of the story and this also came out in the snippets throughout the year. This story colored his view of the leading political figures of the time. And ill mention three. Bobby kennedy was the villain. The justice thought that as attorney general he should have testified on his behalf and he actually had this idea which is actually kwaned in the current times. The administration puts the judicial nominee ghard and the judicial nominee heads for the senate, the attorney general should come and testify. Now we dont see much of that happening. It was a different time. The courts of appeals are much smaller and he obviously was a special case. He was a second africanamerican judge in the country and his nomination had been controversial for that reason. Eastland had tried to talk the administration out of nominating him. Also Bobby Kennedy was close to eastman, worked close to him and thought that Bobby Kennedy should have gotten to eastman and stopped the mistreatment. Especially because the session was coming to an end at that point he recent appointment would have ended. I never checked this. The justice claimed that he could have gotten the second recess appointment but he couldnt get paid to do the job and that somehow another president kennedy said he would pay his salary on the second recess appointment which would have been problematic in what cases of the government peers. I never got to the bottom of that. But Bobby Kennedy was a villain. His views on president kennedy were somewhat more neutral. But the hero in all of this was Lyndon Johnson. And he was the person Justice Marshal regarded as a true champion of civil rights. Johnson persuaded him to give up his judgeship on the Second Circuit. I think it was that difficult decision for him and obviously had nominated to the Supreme Court. The justice believed and he often told us that president johnsons political career came to an end because of his support of civil rights not because of his support of the vietnam war. And this is obviously an untraditional view but one that he felt, he believed very strongly. And we heard praise of Lyndon Johnson at least on a weekly basis but usually many times in a week. Any other brief stories about t. M. With a moral attachment . He liked to tell stories about Race Relations. And they all had a lesson. And they also all had a punch line. So he was very good at taking serious stuff stories and making them humorous but you got to point. One of my favorites is a ralph winter story which im sure he would have told had he been here which is when t. M. Was on the Second Circuit, newly appointed. And he was supposed to go up to another judges chambers for a photo session. The photographer had set things up and in the course of doing that had blown a fuse. So there was a call for an electrician. And there was a call for the electrician and the door opens and in walks Thurgood Marshall. So the secretary says oh, you must be the electrician. Of course he wasnt. But he comes back to chambers and he tells this story. Hes not angry, hes not disappointed. Whats his lesson from this story. At the time the new york trade unions were highly segregated so the lesson from this story is that woman must be crazy to think i would be an electrician in new york city. [ laughter ] you got another story . Yes. Well, one story just illuminated his ability to play all roles. He would tell the parts of everybody. This particular one was about his time as an advocate in the south. One of his roles was to recruit people to be willing to be plaintiffs when they were really putting their lives on the line. He is in a car and he rolls into town and hes surrounded quickly by a group of white men. And he says, this is it. 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 negros can stay in a hotel here. And hes nodding like that. And the man says, so will you stay at my house . And that was a story that was catching us in our own assumptions that every white southern person was a segregationist and was terrible. He told jokes also in which he played every part and im just going to tell one of them, because its the cleanest one. [ laughter ] so he didnt love to gamble and this is a joke about someone who was in las vegas and lost every cent. Every single cent. And its back in the time when you actually needed a quarter to be able to use the bathroom. Anybody old enough to remember this . To use a stall in so this man literally has not a quarter, nothing. So he goes to the mens room and he has nothing in his pocket and hes looking pathetic and someone takes pity on him and gives him a quarter. And he reaches to use the stall and low and behold the stall door is open. And it would bbt a good story if he didnt leave there and take the quarter and put anytime the slot story and it wouldnt be a good story if he didnt win big there and take it to the craps table, the poker table, invests in the stock market, doing well and he hires a private detective. Hen he says, please find for me the person who was my benefactor. A year goes by, two years goes by. Finally the detective says i found the man who gave you the quarter in the mens room. And our hero says thats not the one i wanted. I wanted the one who left the stall door open. Now, you know [ laughter ] so, you know, i like i wasnt sure why it was in the story but i liked the story. As i thought about it actually is a pretty deep point. That is he actually wasnt looking for handouts. He didnt support handouts. He supported opportunities. [ laughter ] all right. Were running a little tight on time but i want to ask this question and get everyones take on it. Its been 25 years since t. M. Retired. What would he 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 . Im going to ask you to lead us off. You were clerking for him the day he announced his retirement. Youve recently written about his perspective. What would he say . Thats tough. Well, let me give you a sense of where he was the year i clerkd f clerked for him. I mentioned that i worked on the School Desegregation case. Its poignant for me to be working with him on something that is his lifes work. If youre familiar with the courts education cases, dowel was the beginning of these three theres three cases in the 90s where the Supreme Court essentially says its time for its over. Federal courts to stop policing School Desegregation. And this was very painful. He, like i said its clear that we were going to be writing in dissent. And he could see the beginning of an 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 rehearse in the chambers with us what he was going say to his colleagues, you know. He was saying things, trying out things like am i supposed to keep telling black kids its going to get better . And then he told this painful tragic story about a black man he met this was in his civil rights years who said he really wished he could wake up and be white. You know, he was trying out these really hard things. And he was not successful. And you know, and this was my hardest day on the job. And you know, that was a rough day and i will say to his colleagues credit they waited until he died to really begin to put a stake in School Desegregation. But you know, the next week, next day hes back at work, back to being jolly. But you know, he had tough days like that. And i wrote a piece about Justice Marshals approach to Juris Prudence and that case that you just mentioned, starts with the k, that was one of the prime examples of Justice Marshalls race transcending, his universal empathy for downtrodden people. I really felt that obama was president at the time, still is for a few days, but i said in this piece that i felt that the multiracial optimistic coalition that put barack obama into office twice kind of reflected the society that i think Justice Marshall imagined the Reconstruction Amendments was supposed to bring about. And i was saying i think he would have been tickled to death. He loved lbj, youre right. He had wonderful lbj stories. Im reluctant to conjecture about how he would feel now. But one thing i know that i think, you know, i think he would clearly find whats happening in Public Education today and the fact that black and brown children are more segregated today than theyve ever been quite depressing. But he did have this ability to get up and keep doing to work and i think he would be heartened by the new generations of young people who are, you know, fighting the good fight on the things they care about. Others . So this was a very poignant moment. It was a clerks reunion in 97, a number of you were there. And an early former clerk gave a very depressing speech about how reunions are about celebrating things. And there was very little to celebrate at that time during the Reagan Administration when this former clerk thought that our country was going backwards rather than forwards. A very grim portrayal. And this was during the time when different law clerks were supposed to stand up and, you know, give recommend nins. The justices stood up, walked to the podium, responded movingly, making clear his disagreement with his former clerk. And he said that his dream, the justices dream was for the poorest black child in mississippi to have access to the same quality of education as a child born into the rockefeller family. The rich family of the time. And he observed that his dream was unattainable. But that progress had been made and would continue to be made. He said even if we never got there it was still a wonderful dream to have. He sort of changed the mood of the evening into a mood of optimism. Again, its hard to speculate in a different situation what it would have been like. But he had an enormous reservoir of optimism in him and it came out, came across quite frequently. And in very important times. I agree. Hes a player, he never gave up. All right. Ill offer just a thought, too, which is he was pragmatic and he was also an optimist. And he took very much the long view. He used to say to us, it took 80 years for the Reconstruction Amendment to come along. Weve got to be patient. And i think he would find much to celebrate over the last 25 years with the hesitations and reservations that weve mentioned. The election of the first black president. If you look at lawrence versus texas an the samesex marriage cases, theres a part of his juris pru dense which was liberated with freedom to act in personal spaces. He wrote saying you cant criminalize the obscene materials in ones home. He could celebrate that. I think he would celebrate the profusion of the Public Interest law. This is a man who built what amounted to be the Public Interest firm in the United States and now its got facsimilies in so many areas. And me would see that as a very good thing. And i think he would be thrilled with you and justice sotomayor. I think he would be very proud. So with that let me turn the floor over to our marshall clerks here. If any of you have a brief memory or question, please come to the podium so that those in the other courtrooms with hear your thoughts. But id ask everyone to keep the thought brief. We dont have a lot of time. Please identify yourself and your year. Scott brewer. I was a clerk in the october 1990 with cheryl. Two quick things occurred to me from my time clerking, both about the Death Penalty. One was, this was the year that Justice Brennan retired and we had already been in the long process of the dismantling of a lot of things that were very dear to the justice but he had an amazing spirit. And you know, speaking to this time, it just seems to me that he was always, taking the long view. But inspiring us, telling us stories, rallying the troops, never giving up. And theres a saying from a philosopher that i admire a lot that taught me something or not about Justice Marshal. Not by wrath does one kill by by laughter. Come let us kill the spirit of gravity. I remember picking up an oral argument, i think the case was perry versus louisiana in which the state was arguing that they should forcibly give this man psych tropic drugs to make him sane enough so that they would execute him. And from the bench we talk a lot about stories that he told us in private, most of which were not for family consumption, but this was something that he did from the bench. This was the humor from the bench where he was asking the advocate for louisiana how do you administer these drugs, these sigh tropic drugs. Could be by injunction, orally. And he said well next time you give him the injunction, why dont you put enough in it to kill him. And the guy stuttered and he said oh. But he made a very striking point with that little pointed bit of humor. And i think that was the spirit of fighting, watching what was happening. And i think he would bring that spirit and encourage us to have that spirit today. Thank you, scott. David wilkins, i clerked for the judge in the 81 82 term. This is if place i had my first job with judge feinberg. Its quite an honor to be here. I want to make three really quick points. One is to pick up on what Justice Kagan said. Justice marshall would have been one of the most famous people of our century had he never set foot on the Supreme Court. His legacy, its not just Public Interest. The fact that we equate the Legal Profession with social justice is because of the campaign that Justice Marshall and Charles Hamilton and others waged in brown versus board of education. That is the reason why we did it then is the enduring legacy we need to keep alive. The second is about the stories as by current dean said, the stories were amazing. But one thing to remember about the stories is they werent just about famous people. In fact his greatest stories were about ordinary people. In fact he knew every marshal, every clerk, every person in the Clerks Office by name. And 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. And my contribution that i wrote when jus sis marshall died was about the relationship between those stories and his great ability as a lawyer. Because as robert coverage said, justice is narrative. And he was the master of narrative. And the final part is that so many of those stories were about his family. So goody, john, sissy, little sissy, you know, his entire family including his extended family, which is law clerks all became a part of. But theres one member of that extended family who was with him i think his entire time on the Supreme Court, since he was in the slis ter generals office. And thats mr. Gains who was so much a part of everything we do. So he taught me that to be a great lawyer was to be about justice, to be about narrative of ordinary people and to be about family. And for that im eternally grateful. Tha thank you. Thank you, david. Ira. Hi, im ira feinberg, i clerkd for Justice Marshall in the 1973 term. And that of course 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. But the story i wanted to tell had to do with your question, paul, about surprising views of the justice. Each sitting of the court, the Clerks Office would roll in all of the briefs, cart full of all of the briefs for the upcoming sitting and the law clerks took turns choosing which case they wanted to work on thinking they were going to take the big case that Justice Marshall would clearly be interested in writing on. In my case the big case was a case that most people had never maerd heard of. It involved the issue of reverse discrimination coming to the Supreme Court for the first time by a white student who had been denied admission to the Washington University law school and claimed that he had been discriminated against because of an affirmative Action Program that the school had. At the end of the day the case became moot. 54 vote, decided it was moot because he had been ordered by court order into the law school and he was graduating by the time the court was getting around to writing an opinion. But this was mackey versus california three years before. Id be interested in the comments of any of the panel, you would think you know where Justice Marshall is going to come out on this case. And he was really troubled by this case because he believed so profoundly that people ought to be judged on their individual merit. And he said to me that i know where my constituency expects me to be on this case but he was really profoundly troubled at the idea that anybody could be discriminated against on any ground. Thats my story. Id be interested in the panels thoughts on that. Thank you. Im vickie jackson. I teach law at harvard and i had the great privilege to clerk for the justice in 1977, which was the bock ki term. I want to say thank you to the chief judge and everybody involved in this remarkable event. I clerked for the judge in the Second Circuit. He recommended me to Justice Marshall. I had the great privilege to clerk in the Southern District. And it is 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 an extent a motion to extend the to file a petition. I didnt think it was a big deal. And he said look here. And i looked, hes pointing at the signature line and i said, what is it, judge . He said, who signed that. I looked and said its the lawyers secretary. What do the rules say . The rules say it has to be signed by the lawyer. Denied. The rules are what protect us. Its a theme throughout the clerkships. Point two, bokki, Justice Marshall agonized over his dissent in that time. It was a complicated case. But by then he decided for affirmative action intermediate scrutiny was the appropriate approach. And in his opinion my memory is he began to resort to history as so many of you talked about, 400 years ago. His people had been brought here in chains, in slavery and he continued and brought it up to date. And the last thing i want to talk about, it probably doesnt need saying because we all know so much about his amazing deeds. But he wasnt only of course a wonderful story teller and litigator, but he acted his ideals out. Heres one small example. My year, october term 1977, there were two women clerks out of the four of us. And in my class in law school there were 15 women. So he didnt believe in equality only for one group. He believed in it for all. I think this unfortunately needs to barbara. Go ahead. Im barbara under wood, clerked for Justice Marshall in the 71 term. I was his first woman law clerk and only the fourth at the court. This was a time when many judges, including judges who thought of themselves as antidiscrimination judges would say openly oh, but i couldnt have a woman law clerk. After all we sometimes stay late in the office. And what would people think. And i wont name the people who said that. But you would be very surprised, i think. Justice marshall was ahead of his time on that issue, as with many others. He cared deeply about all kinds of discrimination, and in particular about discrimination against women. He told me that it was racist to think that only negros needed protection against discrimination. And i thought i would tell you a little bit about how came to be selected. People talked about the call. My judge for whom i clerkd had recommended me. And 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 halfhour, did all of the talking for himself. And he said is there anything else you want to know. I said no, maybe you would like to know something about me. And he said, yes, actually there is a question. Dont take this the wrong way. My partners told me not to ask this question but its really very important. How do you feel about dirty jokes. And i sort of took a deep breath and said well, if theyre funny i laugh. Great answer. And i sort of thought that was the end of he said no this is very important. The judge likes to be able to tell dirty joke as ennot be concerned about them and he also likes his law clerk to increase his repertoire. [ laughter ] not true, i think, actually, but thats what the person said. I went back to the d. C. Circuit, told my fellow clerks about this interview. I got a call for an interview with the justice. He was then interviewing and my fellow law clerk plying me with dirty jokes to tell the justice. Not really my style, but i tried to memorize a few, see what i could do. [ laughter ] and i walked into his chambers thinking can i really say are you heard the one about anyway. Somehow this had all gotten back to him, because when i walked not to make not every bit of it but the idea that there was a problem. Because when i walked in he put his arm around me and he said i hear theres been some nonsense about minot wanting a woman around here. Thats a lot of bullshit. And he proceeded to ask me about a recent case that he had been working on, and it was perhaps one of the more substantive law clerk interviews that people have had. I mean it was a serious discussion at the end of which he offered me the job. Thank you. Thank you, barbara. I think this needs to conclude or program. But i just wanted to say this. Judge ginsberg. One more. Im sorry. Forgive me. Go ahead. Thank you. I didnt mean to prolong things but i think we should be grateful to the judges for bringing us together today for this opportunity. I just wanted to make two observations about the judge. Sir, may i ask you to introduce yourself . Im sorry. Doug ginsburg. 74 term. I think thats after i read before greg, if im not mistaken. Two points. One about theyve all been glancingly referred to, the point about rule formism, a little more directly. But i think its important to keep in perspective that the judge really was a great believer in american institutions. And starting with the courts. I think the subtitle of ron williams very excellent book american radical is entirely misplaced. He had disdain for radicals and for all of the different movements that had arisen out of the plight of the american negro. All except the use of the law and ordinary procedures. Second, of all of the stories that he told, youve heard a sample, there are more in gilbert kings book. There are more in the terrific play that Laurence Fishburn does. In all of those stories hes never the hero. Never. Thank you. [ applause ] i said at the beginning we had a world class panel. I this uy can see that was richly validated tonight. Can we have a round of applause. [ applause ] let me turn the floor back to the chief judge. Thank again to paul engelmire for a spectacular job. [ applause ] and to a spectacular panel. Your words will live on with us in our learning center. Were grateful for these. As you sit on the bench with Thurgood Marshall sat. Youre watching American History tv. To join the conversation like us on facebook at cspan history. Tonight on the communicators. I havent changed. The things that i care about in terms of consumers being first and foremost in our minds when it comes to policy and when it comes to my interest, when it comes to serving them. That has not changed. The longest serves fcc commissioner and the only democrat on the commission talks about how the fcc is changing under Republican Leadership and what she sees as the major issues ahead. Shes interviewed by Telecommunications Report Senior Editor lynn stanton. When he go into a direction that might be more philosophical than practical, we need to ask ourselves, will consumers be protected. And under the current paradigm that ive seen teed up, what i am hearing in terms of moving back to the days of old i really dont see where the consumer benefits will derive. On july 6 join American History tv for a live program from the museum of American Revolution in philadelphia from 7 00 to 9 00 p. M. Eastern time. Well be joined by museum staff to learn about their art facts and exhibits and theyll be taking viewer questions and comments. Heres a preview. So in this gallery then we kind of unpack the story of the declaration of independence. We have a small theater which explores the actual process of drafting and passing the declaration of independence. We rotate on display printings of the declaration. Were all familiar with the engrossed copy on parchment that you can see in washington, d. C. But other than members of congress very few people saw the document. Most people encountered the text of the declaration from newspaper, broadside printings or having it read outloud in the various communities. So we rotate on display different printings of the declaration. Right now we have one of the rarest actually is a german language printing here in the center. There are only two copies of this july 1776 printing of the declaration in german that has survived. And then its side by side with a salem, massachusetts printing of the declaration. We also explore the promise of equality. So this notion that all men are created equal, endowed by they creator with certain inalienable rights, thats language that of course has to be each person has to decide does that apply to me. So the people who wrote those words maybe didnt actually recognize the revolutionary potential in them. And actually some people, like john adams, probably did realize that when you declare that all men are created equal, people might say well what about women, what about enslaved people, laboring men. So we try to explore that story through this wall where we look at the status of laboring men, of enslaved people, of women including abigail adams. Thursday, july 6th, at 7 00 p. M. Eastern time on American History tv, the museum of the American Revolution. Former Baseball Hall of Famer Jim Bunning who went on to represent kentucky in both the u. S. House and the u. S. Senate passed away in may. Up next Mitch Mcconnell talks about the life and career of his fellow republican. Senator mcconnell was minority leader at the time this event was recorded in 2013. Its about 30 minutes. Well thank you very much, president. Good afternoon, everyone. As jeff mentioned, this is the fourth in a series of speeches ive been g