President Johnson spoke with Attorney General Ramsey Clark∇ about the nomination of Thurgood Marshall to the Supreme Court, which he was due to announce later in the day. The conversation has already begun when the recording starts.
President Johnson: [Unclear.]
Ramsey Clark: --just worked in the Civil Rights movement ever since he went on the Court.
President Johnson: How many cases has he argued over there [before the Supreme Court]?
Clark: Thirty-two before he came to the Solicitor General's office and 19 since.
President Johnson: That's what I thought. That's 51.
Clark: Make him among probably the dozen in history and second among the living, I think. [pause] That's quite a--we'll have to build him a little, but I think in terms of all the problems of the country, it's the best appointment you could make.
President Johnson: I think you're going to have to have your--you're going to have to have a backgrounder day yourself right after I announce it. I think you ought to call all your people in. And I think you ought to tell them you recommended him. I think you ought to tell them all his educational background, his best qualifications you can. How many of the 19 cases has he won?
Clark: Well, I'm not sure.
President Johnson: He gave the list to me the other day. I believe there's 3 that he lost out of the 32. It seemed like about 6 or 7 out of the 19.
President Johnson: So out of 50, he's probably won 80 percent of them.
Clark: The Solicitor General can pick winners if he wants to. He could win them all if he wanted to.
President Johnson: I don't guess, though, he's done that.
Clark: No, he hasn't.
President Johnson: He's lost--he's lost a bunch of them up there.
Clark: On the contrary, he's frequently said that he--there's some cases he didn't want to put off on the staff. They were too tough and too mean. So He's taken those for other guys haven't in the past.
President Johnson: Is he well-liked by his staff?
President Johnson: Where did all this wave of stuff go around that he is disappointing as Solicitor General, that he's lazy and shiftless and didn't spend much time doing his homework?
Clark: Well, I think it's--
President Johnson: That's some candidates that didn't want him or something?
Clark: I think it's a combination of opposition, plus--
President Johnson: It's mostly--
Clark: --he doesn't fit the mold. He's not a Yale man and that kind of stuff, you know. Just a big, easy-going, very humane-type person. He doesn't change his behavior to suit other people. Doesn't wear striped pants. I think it's a combination of those two factors.
President Johnson: Will there be any opposition to his confirmation?
Clark: I would think there'd be foot dragging in the Judiciary Committee. And I think there'd be--I think anybody who really wanted to oppose would be kind of hard-pressed. I can see the possibility that [Senator John] McClellan [D-Arkansas] and others will take a hard crime attitude and say that they can't vote for anybody who's not going to admit confessions into evidence and things like that.1 I think [unclear]--
President Johnson: Well, I don't know about--
Clark: --question if it did.
President Johnson: I don't know what his confessions are, but he's a pretty hard crime man himself. Did I tell you what he said to me the other day? About being a [Tom] Clark man?2
Clark: Oh, yes. Yes.
President Johnson: I said, "You and Ramsey and Abe Fortas are just going crazy. All of you are too liberal on these things." [Imitating Marshall] "Wait just a minute! Just a minute there! Just hold back! I'm a Tom Clark crime man!"
President Johnson: So, that would indicate to me that they wouldn't be too rough on him on that if that is known. I guess it's not known.
Clark: Not generally known.
President Johnson: Did you know it?
Clark: I think that's right. I think on confessions he's not going to be that way because, see, he argued some of the early forced confession cases. So, on Miranda [vs. Arizona] and a few issues like that, but he's generally a conservative person. He's a--he's an older man and he's . . . he'll be conservative. He'll certainly be conservative compared to Abe [Fortas] on civil liberties, police issues, compared to Arthur Goldberg∇.
President Johnson: What did the Supreme Court do to you yesterday on wiretapping?3 It made your law unnecessary, didn't it? [laughs]
Clark: Well, pretty close to it except--
President Johnson: I thought--
Clark: --[unclear] have some basis for prohibiting state and local wiretapping.
President Johnson: Well, I thought they outlawed state law wiretapping.
Clark: Well, they made it unconstitutional for the most part, but they don't--there's no sanctioning. You can't put a person in jail or anything. So to have--to have any case to it, why, we going to have to get us some legislation to really prevent it. Lots of things are unconstitutional that people do every day without fear of being caught or punished.
We're going have an awfully rough time at the Judiciary Committee this morning on crime control. The Republican chairmans are really upset about it. They're going take a straight party vote to cut out Title II, which is the heart of the program. It's the subsidy for the state and local law enforcement agencies.
President Johnson: Well, you've got the vote?
Clark: Probably not. It's going be awfully close. You see, he's got--it's a 15/20 committee, and he's got four or five Southern Democrats that we just can't reach. Fellows like Governor [William M.] Tuck [D-Virginia], [Representative John] Dowdy [D-Texas], [Representative Robert] Ashmore [D-South Carolina], [Representative Basil] Whitener [D-North Carolina]. We're working on him, but he's--the chairman just wants to go ahead and I think he's right. We piddled around with them, they come at the last hour. They called him yesterday. He was still up in New York. He said they got to rewrite the bill. But I think it's just part of their wrecking crew technique. And if they really do it, I think they've made a serious political mistake because then I think we . . . well, they do a lot of talking about crime. They talk about wiretapping. They talk about confessions. But when you really get down to it and want to help the police and build the police, you give the police more money, they say no. Who's really against crime?
President Johnson: You speaking with that group down in Memphis?
Clark: Am I?
President Johnson: Yeah.
Clark: No, sir.
President Johnson: Anything new on [J.] Edgar [Hoover]?
Clark: No. He's a hard man to work with. He was at our U.S. attorneys reception last night. First time he's ever been known to come, which was very pleasing but . . . he works his own way.
President Johnson: Does he give you any trouble?
Clark: It's tough. The press tells me he just undercuts all the time. His boys too.
President Johnson: Is that on principles or personality?
Clark: A little of both. Probably . . . [Tape skips] more principles on personality. I think they work personalities only to strengthen their position on the principles. I don't think there's any personal antipathy at all.
President Johnson: Who are his men? [Cartha] Deke [DeLoach] and that group?4
President Johnson: Is Deke his front man?
Clark: Pretty much so.
President Johnson: You ought to tell him you want cooperation from him. Maybe I'll tell him.
Clark: Well, see I'm not sure that's the way you'd secure it. It's a big outfit. I think you just have to work at it on a personal basis. I'd say it's better than it has been any time I've been in the [Justice] Department, but it's still . . . I think it was perhaps better controlled when Bob [Robert F. Kennedy] was there through fear. They didn't want to tackle that, but it's--the personal relationships are probably the best they've been since I've been in the department.
President Johnson: Did you see the Baltimore Sun predicts the [Thurgood] Marshall appointment?
Clark: Is that right?
President Johnson: Mm-hmm. So it'll [be] liable to get out.
Clark: Adam Clymer?
President Johnson: I don't know who it was, but it's pretty much on the nose. And I don't know how in the hell they--they can go back and review it. [Aside to someone in background] Hand me that Baltimore Sun story here. [to Clark] It's not irritable, but it's: [reading] "Marshall Looms As Next Justice." "Thurgood Marshall appears to be the most likely candidate [to fill] the vacancy [created by] Tom Clark's retirement. Marshall, a Baltimore-born Civil Rights attorney would be the high court's first negro jurist, as he was the first negro to argue the government's case before the court as Solicitor General. An appointment to the Court is expected imminently. Justice Clark commented during his last day on the bench today, predicted 'the President would appoint someone who will fill my shoes to overflowing and possibly break them open.' Marshall has frequently reacted to speculation he might become the first negro justice by scoffing, 'It's not in the cards.' But the President's high regard for the former chief counsel was shown when he named him the Justice Department number three post and has been repeatedly reaffirmed. Last June, addressing the White Conference [on] Civil Rights, the President said, 'I might say that the President of the United States does not often have the opportunity to introduce another speaker. But I am glad that tonight I do have that opportunity. I am going to introduce to you one who 12 years ago established in the field of civil rights a beachhead from which we will never retreat. Since that day, he has already occupied two great offices--distinguished Justice of the Court of Appeals, and now is a great Solicitor General of the United States of America.' And the president, perhaps responding to a faint undercurrent of criticism about Marshall's performance in office, added, 'And let no man ever say that he is not a qualified lawyer and judge.'5 As a judge in the United States Circuit Court of Appeals in New York, Marshall took a generally liberal view of constitutional, criminal law issues but not in the manner of a social reformer. He was one of the few judges there to have any background as a defense attorney." I don't think it's . . . it doesn't seem like it's a leak. It seems like it's just kind of based on what the facts appear to be.
Clark: Was it Adam Clymer, or did you notice?
President Johnson: No, it's not--it doesn't have a name.
Clark: Didn't have a name? Clymer's the [Supreme] Court man for the Sun, and I see him all the time. That's--I think that's--that's a natural choice. I'd say it'd be the most probable to a casual observer.
President Johnson: What will the papers say about the appointment?
Clark: Well, I think there'll be some little riffle about--
President Johnson: What about the [New York] Times and the [Washington] Post--say it's political?
Clark: I think the Post will be favorable and the Times favorable. The Times, if it's affected otherwise, will be by some of the guys on the Second Circuit who served with him and didn't like him too well.
President Johnson: Just on the grounds of what you said?
Clark: Well, that's my interpretation of it. I think they'd put it on intellect and industry. But the record--how'd he do all these things if he's so lazy and incompetent?
President Johnson: Did he argue the Brown [vs. Board of Education] case? The school case?
Clark: Well, I was trying to think. I . . . let's see . . . I got this thing here that may say. . . . I don't believe so. Well, I guess maybe he did, too. It says "significant Supreme Court victories include elimination of separate but equal in education," so I guess he did.
President Johnson: What was he regarded when you were coming up as a young lawyer? Was he regarded as the best the negroes had?
Clark: He was the only one anybody knew about, outside a few local practitioners. He's a--his name is a part of American history right now. He started the lonely fight back when there were very few at it. And he was able enough both with people and with the issues to work constructively at a time when it wasn't at all easy. It's hard to remember that even when I was in law school, a negro lawyer was a great peculiarity. You know, you just wondered what in the world that was all about. There are still far too few [unclear]--
President Johnson: You get ahold of your committee. And what's he going to do--get them all on the phone?
Clark: He's gonna get them all on the phone. He's standing by at the Madison Hotel right now.
President Johnson: How many are there? Eleven or 12?
Clark: There are 12. He won't call until about ten. That'll be seven o'clock out on the coast and he's got to pick up Oklahoma, Iowa, and California.
President Johnson: What did you say about the coast?
Clark: I said it's just so early out there now that he won't call until about ten o'clock.
President Johnson: Yeah.
Clark: He can have it done within an hour.
President Johnson: So what he'll do is get them all on a conference call or call them individually?
Clark: He'll get them all on a conference call. His secretary called them last night and asked them to be available. He's been in Washington and talked with me and has some matters of urgency that he wanted to review with me.
President Johnson: All right now, we're going to name the California boy, too?
Clark: Well, I thought you wanted to wait a day.
President Johnson: That's what I would think, but I want to get your judgment again.
Clark: I would say Thursday. I'll get him in here.
President Johnson: Now, what about [Judge Harold] Barefoot [Sanders]'s successor?
Clark: Well, we're not ready.
President Johnson: Mm-hmm. Well, who are we thinking about? New York?
Clark: Well, I really just haven't . . . haven't [unclear] on one guy.
President Johnson: We can talk about that later.
Clark: I'd like to get Warren Christopher in for you tomorrow to see and--
President Johnson: That's all--
Clark: --Thursday morning.
President Johnson: All right. That's all right.
Clark: Want to go about noon, you think?
President Johnson: Today?
President Johnson: Yeah. Yeah--or as close to 11 as you can. That's when our briefing is and they'll bring it up with this Baltimore Sun story.
Clark: OK. Yeah, I'll get the papers over to you before that and we'll see if we can get ready by 11. [Unclear.]
President Johnson: Yeah. Yeah, OK.