In this call, President Johnson asks Judge Thurgood Marshall to be Solicitor General to replace Archibald Cox, who was planning to resign his post and return to his position at Harvard University's Law School. In 1961, President Kennedy had appointed, Marshall, at the time Chief Counsel for the NAACP, to the United States Court of Appeals for the Second Circuit.
Johnson said he had been considering the offer for weeks and laid out a number of reasons for it, among them that "I want to do this job that [Abraham] Lincoln started and I want to do it the right way" and that "I want to be the first president that really goes all the way." While also carefully clarifying that he was not making any promises about future positions, Johnson also made it clear that he wanted to groom Marshall for "something better," almost certainly a reference to the likelihood of a vacancy on the Supreme Court. Two years later, Johnson would indeed nominate Marshall to the Supreme Court to replacing the outgoing Associate Justice Tom C. Clark.
Johnson's persuasion worked. Marshall accepted the position on the spot and in August 1965 became the first African American Solicitor General of the United States.
In his 1969 oral history interview for the LBJ Library, Marshall recalled this conversation:
He called one day, around this time [July] I think, and I was up in the judges' dining room at the courthouse. My bailiff came up and tapped me on the shoulder. I said, "Fred, what in the world is wrong?" I mean, he's not supposed to bother us at lunch. He was as red as a beet. I said, "What's wrong, Fred?" He said, "The President wants to speak to you. He's on the phone!" I said, "The President of what?" "The President of the United States!" So he had held an elevator, and I went down. Sure enough he was on there. We chatted for about two or three minutes, and he said, "I want you to be my Solicitor General." I said, "Sir?" We chatted about it, and I said, "Well, Mr. President, I'll have to think this over." He said, "Well, go ahead, but don't tell a living soul." I said, "I assume that means nobody but my wife?" He said, "Yes, that's what I mean by nobody." He said, "Take all the time you want." I said, "Very well, sir." He hung up, and I hung up.
I went home and talked to my wife and we discussed the problems, because one was a lifetime job to trade in for a job at the beckoning of one person. Secondly, it was a $4500 cut in salary. Third, the living expenses in Washington would be twice what I was paying in New York. So she said okay. We kept thinking about it, and the next day the phone rang. He was on the phone again. I said, "Well, Mr. President, you said I had all Thurgood Marshall the time I needed." He said, "You had it." I said, "Okay." I went down the next morning, and I started telling him these things. He said, "You don't have to tell me. I can tell you everything including what you've got in your bank account. I'm still asking you to make the sacrifice." We talked for quite a while, and I said, "Okay with me."
B: Did he explain to you why he wanted you as opposed to just somebody else?
M: He said he wanted, number one, he wanted me in his Administration. Number two, he wanted me in that spot for two reasons. One, he thought I could handle it. Secondly, he wanted people--young people--of both races to come into the Supreme Court Room, as they all do by the hundreds and thousands, and somebody to say, "Who is that man up there with that swallow tail coat on arguing," and somebody to say, "He's the Solicitor General of the United States." Somebody will say, "But he's a Negro!" He wanted that image, number one.
Number two, he thought that he would like to have me as his representative before the Court. The other thing which goes through every conversation we had from then on--he would say at least three or four times, "You know this has nothing to do with any Supreme Court appointment. I want that distinctly understood. There's no quid pro here at all. You do your job. If you don't do it, you go out. If you do it, you stay here. And that's all there is to it."
B: He made it clear this did not mean that you would eventually get a Supreme Court appointment?
M: Over and over again. He made the announcement in the East Room, and it was very funny when I went in. The press knew nothing about any of this. When I went in he first said that I would come behind Mrs. Johnson, and then he said, "You come and go in right side-by-side with me at the door." We went in together. A murmur went around the press boys, and I found out afterwards that the question they were asking was, "Who has resigned from the Supreme Court?" He made the announcement and then we had the swearing in, and that was that.1
Editorial note: Thurgood Marshall's side of the conversation is difficult to hear.
President Johnson: Yes?
White House Operator: Judge Thurgood Marshall in New York on 9-0.
President Johnson: All right, [unclear]. OK, take this, will you?
White House Operator: Yes, sir.
President Johnson: Hello?
Thurgood Marshall: Yes, sir?
President Johnson: Judge, how are you?
Marshall: Fine, sir.
President Johnson: I have a rather big problem that I wanted to talk to you about.
President Johnson: I want you to give it some real thought because it's something that I have thought about for weeks and I think that we can't think of how it affects us personally. We've got to think about the world--
President Johnson: --and our country.
Marshall: Yes, sir.
President Johnson: And our government. And then ourselves way down at the bottom of the list. I want you to be my Solicitor General.
President Johnson: Now, you lose a lot. You lose security and you lose the freedom that you like. And you lose the philosophizing that you can do. And I'm familiar with all those things.
Marshall: The number one [unclear].
President Johnson: Well, you won't lose any. And I want you to do it for two or three reasons. One, I want the top lawyer in the United States representing me before the Supreme Court--
President Johnson: --to be a negro.
President Johnson: And be a damn good lawyer that's done it before. That's--so, you have those peculiar qualifiations.
President Johnson: Number two, I think it will do a lot for our image, abroad and at home, too, that this is the man that the whole government has to look to to decide whether it prosecutes a case or whether it goes up with a case, or whether it doesn't, and so on and so forth.
President Johnson: Number three, I want you to have the experience and be in the picture. I'm not discussing anything else--
President Johnson: --and I don't want to make any other commitments--
Marshall: Yes, sir.
President Johnson: --and I don't want to imply or bribe or mislead you.
President Johnson: But I want you to have the training and the experience of being there day after day for the next few weeks anyway.
Marshall: Yeah [unclear].
President Johnson: And both of them have a high regard for you. I've talked to the Attorney General, Nick Katzenbach∇.
President Johnson: I've talked to you. Now, I haven't talked to anybody else. I don't want to talk to anybody else.
Marshall: Right, sir.
President Johnson: Nobody will ever know I talked to you. If you decide that you can do it, I think you ought to do it for the people of the world. I just think it will be--you've got a great job, you've got lots of security, but I don't think you'll lose any by this. And after you do it awhile, if there's not something better, which I would hope there would be, that you would be more amenable to, there'll be security for you because I'm going to be here for quite awhile.3
Marshall: That's right. That's right.
President Johnson: But I want to do this job that [Abraham] Lincoln started and I want to do it the right way.
Marshall: Well, could I have a day or so?
President Johnson: Yes, yes. You can have all the time you want. And you think it over, and you evaluate it, and--
President Johnson: This is a non-political job. It just determines what goes before that court and then you present it, at least all you want to and then have other people--Archie Cox will be going back to Harvard; he could stay. I could ask him to stay. But I want this man to . . . I think you could see what I'm looking at.
President Johnson: And I want to be the first president that really goes all the way.
Marshall: I think that's wonderful.
President Johnson: But I don't want anybody to be able to clip me from behind. I want to do it on merit.
President Johnson: I want to do it without regard to politics. I want to do it without any regard to votes, because I never--I don't want any votes. I'm not looking for votes. I've had the votes. I had all the votes when I needed them.4
Marshall: That's right.
President Johnson: I had 15 million. And all I want to do is serve my term and do it well. But I also want to do something else. I want to leave my mark and I want to see that justice is done. And you can be a symbol there, that you can't ever be where you are.
Marshall: The answer's "yes."
President Johnson: Well, it's got to be.
Marshall: [Unclear] yes.
President Johnson: It's got to be.
Marshall: I appreciate it, Mr. President, I really do.
President Johnson: Any day or two you can come down, why, you just get on a plane and come down here and let my people know. Just call Jack Valenti here at the White House and we'll make the appropriate arrangement.
Marshall: All right, sir. I could . . . the only time I'm stuck--I'm stuck [unclear] on Friday, but I could--if either one of those would be better for you, or Monday.
President Johnson: Well, I expect to be better Monday or Tuesday. I'm going to be home on Friday. I'm going home Friday afternoon.5
President Johnson: I'll be here this Wednesday. I'll be here Thursday and Friday, but I'll leave after lunch. Then I'll be there until probably Monday afternoon. I'll be back here Tuesday. What about Tuesday?
Marshall: Tuesday would be fine.
President Johnson: We'll just--now, you just forget this.
Marshall: All right.
President Johnson: And let me talk to you about it in detail and we'll work it out and . . . you don't know, I've thought about it for weeks.
Marshall: [Unclear] I'm so appreciative to be able to help.
President Johnson: Well, you can because you live such a life and they've gone over you with a fine-toothed comb and they could never use anything about you to thwart us. And we're on our way now.
President Johnson: And we're going to move.
Marshall: Right. Well, Tuesday would be fine if it's all right with you.
President Johnson: All right, that'll be fine. You have any idea what time you'd like to meet?
Marshall: Any time, sir.
President Johnson: Well, what about 11:00 in the morning?
Marshall: Eleven o'clock would be fine.
President Johnson: Thank you. Bye.
Marshall: Thank you, sir. Right.