In this call, President Johnson and Attorney General Nicholas Katzenbach∇ discuss their strategy for paving the way for nominating Thurgood Marshall as Solicitor General, a Cabinet-level position, without tipping off potential critics and while still satisfying Deputy Attorney General Ramsay Clark's recommendations to promote Constance Motley.
The recording starts after conversation has begun.
President Johnson: --ought to just--how when we go with [Thurgood] Marshall, how we get [Constance] Motley at the same time, without leaking Marshall to anybody? Now, is there anyway that you could check with the senators?
Nicholas Katzenbach: Yes, sir.
President Johnson: And say, "These two judges . . . and that if there's any vacancies anytime on the circuit, would you be . . . did I understand you to say that you would not object to Motley?"
President Johnson: So that we wouldn't expose the Marshall thing until we've got it wrapped.
Katzenbach: All right.
President Johnson: But we could simultaneously do it. And I'll tell you why I'm--Carl Rowan is resigning.1
President Johnson: And I want to try to show that I am letting one negro go, but I am hiring another one.
President Johnson: Do you follow me?
President Johnson: Now, could you do that without his getting suspicious? Ramsey [Clark] told me that he wanted this woman as a judge once before, but they got into the city [unclear] or the borough president or something--
Katzenbach: The city-borough thing. And I don't know whether that would affect her now. I wouldn't think it would for a court of appeals. But I can't [unclear]. I could do it without [unclear].
President Johnson: Try to do it today now because I need to do it, and--
Katzenbach: I'll do it this afternoon [unclear].
President Johnson: Now don't, for God's sakes, let the other get out.2
Katzenbach: I will not let that get out.
President Johnson: Because I don't want to get into that trouble. It might, if something did happen, then I'd really be ruined. But I want to be courteous to him and I don't want to be tricky with him. At the same time, I don't want to ruin myself on the other problem. You can see that, don't you?
Katzenbach: I see the problem, right.
President Johnson: So, you just see that she is not objectionable to any of them. And then we'll take--now, has she been checked by the ABA [American Bar Association]?
Katzenbach: She was checked for the district vacancy. She has not been checked for the court of appeals. I don't know whether they completed that check or if it was called off before they completed it. I think it was called off before they completed it. They said she couldn't serve as a borough [unclear].
President Johnson: All right. Now, could we--is it conceivable that they wouldn't qualify her?
Katzenbach: Umm . . . it's conceivable, but highly unlikely on the court of appeals.
President Johnson: I would--we could announce our intention to have it cleared, couldn't we?
Katzenbach: Yeah, I'd have to . . . yeah, I'd have to check that.
President Johnson: This other thing won't hold a month or a week or whatever time it takes.
Katzenbach: Oh, no.
President Johnson: But, now, the [Anthony] Celebrezze∇ thing--didn't we check Celebrezze out last year?
Katzenbach: We checked him out informally. We never did a--got a formal opinions on him at all. That's going to take a little more--a little time.
President Johnson: Well, I wish you'd call somebody because when I get that to the Cabinet office and he gets to thinking about it, and we're not going to be able to wait. Now, what's wrong with our announcing our intention, and if they find him disqualified, then considering the merits of it then?
Katzenbach: Well, they don't like that because they think if your intentions are known, they don't get honest evaluations from lawyers because they think that the probability is you're going through and therefore all the lawyers will fall in.
President Johnson: Now, I thought that they told us when I considered him for the court of appeals for the District of Columbia, which I had offered him, I thought we'd made that steady, and I thought they told us that they would clear him, but they weren't enthusiastic.
Katzenbach: That was the informal opinion that I got from the chairman that it probably [unclear].
President Johnson: Well, would you just get him to formalize it as quick as you can?
Katzenbach: Yes, I will. [Unclear.]
President Johnson: I've got his successor, probably appearing, and he'll be surfaced and there'll be speculation about it.
President Johnson: And I don't want to hold up and hurt him as he goes out. And I've got the senators' recommendations of it. As I recall, both of them have recommended him.
Katzenbach: That's right, yes.
President Johnson: Now, we don't have to touch anything else. We've got a vacancy.
President Johnson: And he wants it. Has he told you he wants it?
President Johnson: All right. Now, then, so all you need to do is you get this fellow on the phone and tell him that they told you this, but that the Cabinet officer is so unusual that it's liable to break any moment and we want to hold it, but please confirm it to you.
Katzenbach: I'll try.
President Johnson: OK, my friend.
Katzenbach: All right.
President Johnson: How's your [voting rights] bill going?
Katzenbach: We're going to have a vote in about five minutes. I think we're in very easily. [Speaking over President Johnson] We have over 220 Democrats.
President Johnson: Would you call over here to Jack Valenti or somebody and dictate the strongest statement you can, and there's words that every negro can understand about the House passing the bill and just appealing to the Conference to act wisely and promptly?
Katzenbach: Right. Right.
President Johnson: So that I can get that through?
Katzenbach: [Unclear] for the whole passage?
President Johnson: Well, I would dictate the statement after you get through with your critical vote and let them type it and then they'll get it to us on the plane and we can release it when the bill's passed.
Katzenbach: All right.
President Johnson: But you dictate as warm a statement as you can.
Katzenbach: All right. Thanks.