per group. sarah on her national debt, joel osmondson and then documentary on terrorism. lauren yu, mia went zell, documentary on global warming. thank you to all the students who took part in the 2017 student cam documentary competition. to watch any of the videos, go to studentcam.org and student cam 2018 starts with the constitution and you. we're asking students to choose any provision of the u.s. constitution and create a video illustrating why the provision is important. >> up next on american history tv on c-span 3, justice thurgood marshall. first african-american on the high court from 1967 to 1991.

we'll hear from a number of former law clerks including current supreme court justice alena kagen. >> i'm robert and chief judge of the united states court of appeals for the second circuit. today is a very special day. some 650 of us are here in this unprecedented gathering in four courtrooms of the thurgood marshall u.s. courthouse at 40 foley square to celebrate an american hero. thurgood marshall to whose memory this magnificent house is dedicated in this courthouse where he served on the second circuit. we welcome our c-span audience to our proceedings as well. our gathering is at the intersection of two initiatives which have engaged the courts of the second circuit, the last two years. in this initiative, which i had

the privilege of proposing and which have taken life because of the creative and dedicated work of remarkable colleagues of the bench bar in our court staff. the first, the 125th anniversary commemoration on the second circuit court of appeals, wonderfully chaired by richard c. wesley has several kpoenlts including scholarly volumes 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 in the community is a project of all the courts of the second circuit. a project which through a wide range of ongoing civic education activities seeks to bring courts and communities closer together

to promote public understanding of the courts and to help courts better understand the communities we serve. early in the new year, we will be going live with our civic education web site which can be found on the court which you'll be able to find on the court of appeals web site and we invite you to explore it. thurgood marshall's life is very much a part of both of these initiatives. as to our court's history, in 1961, president john f. kennedy apointed thurgood marshall as a circuit judge on the court where he sat in the very good until 1965 when president lyndon b. johnson appointed him as solicitor general of the united states and then associate justice of the united states supreme court. the first african-american appointed to that highest court in our land in a career on the

court that's spanned 32 years. in this building, justice marshall occupied chambers on the 20th floor. his successor in that space, ou that even -- also occupied that space succeeding justice marshall. over the years judge feinberg had the opportunity to move to bigger quarters as he gained in seniority, but he never left justice marshall's chambers, and as he said to me, if it was good enough for thurgood marshall, it's good enough for me. second circuit judge marshall wrote 98 majority opinions, eight concurrences and 12 dissents as david bowitz recently out of 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 marshall's legacy is appropriately honored here in this courthouse. two years ago gilbert king, pulitzer prize winning author of the devil and the grove, thurgood marshall the grove land boys and a dawn of a new age in america delivered the hands lecture of our court about marshall's 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 no doubt observed, every one who enters this building will see the photographs of various aspects of justice marshall's incredible career. in development with deep appreciation to circuit judge ralph winter and southern district judge paul engelmayer,

both marshall clerks and our terrific library team headed by luis lopez is an exhibit about the extraordinary life and times of thurgood marshall as a courageous civil rights leader who worked tirelessly to aid -- to rid this country of the scourge of segregation and racism. as the executive director of the naacp legal and education defense fund, as the plaintiffs attorney in brown versus board of education, as the solicitor general, as a jurist on the second circuit and in the supreme court you will be able to see the videos and hear thurgood marshall's voice arguing in the supreme court. you will have a sense of the impact on the worlds with which he interacted. moreover, students of all ages will be able to explore further the legacy of thurgood marshall when this spring we gnawing rate on the fifth floor of this courthouse a state of the art learning center, a civic

education initiative and you will be able to see in permanent ways the life of thurgood marshall. and that's a project which i co-chair with judge vic for morero of the southern district of new york. today we are graced by representatives of the marshall family, his son thurgood jr., thurgood jr.'s wife teddy, justice marshall's grandson patrick, and with great thanks to ira feinberg we have here with us as well an outstanding group of the marshall judicial family, thurgood marshall's former clerks. the programs we are about to witness consist of a stellar assemblage, many of whom are friends of mine of long standing who took time from their busy schedules to participate and who i thank most warmly. elena kagan, a supremely

talented and brilliant supreme court justice like her former boss, also a former solicitor general and of course before that the dean of the harvard lawsuit. martha minow, the current harvard law school dean, a renowned scholar of social policy. ricky revesz, former dean of the nyu school of law and a leading expert on environmental law. gregory diskant, a highly regarded litigator. sheryll cashin of georgetown university law center, a distinguished caller of social policy. and judge paul engelmayer, a superb judicial colleague of the southern district of new york. without further delay i turn the proceedings over to judge wesley who has so magnificently overseen this 125th anniversary celebration. judge wesley.

[ applause ] >> three seats left. i have to say i'm a little nervous standing in the well with such a distinguished panel and i'm glad i haven't been a lawyer for 30 years arguing appeals, i don't know how i would fair with that group that i'm facing 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 2016/2017 term to commemorate the 125th

anniversary of this great court. to that end a committee of judges, court personnel and lawyers was appointed to plan a number of events and publications that would tell the story of the second circuit as reflected in its jurisprudence, it's impact on the cultural and economic climate of our nation and the lives of the judges who have labored here. the names of those folks who have served on that committee are on the back of your program. today's panel discussion is the fifth in a series of programs planned by the committee and executed by the -- through the hard work of the court family and its friends. in the next few months court personnel will reenact several famous appeals heard at the court, a distinguished scholar will deliver a lecture on a memorable first amendment case, a panel of lawyers and judges will explore the circuit's 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 are available to you at the registration desk and also is available to you on our website. today's program focuses on a man who during his time before he came to the bench played an active and vital role in the fight for equal justice for african-americans during the 20th century. i suspect many americans could tell you that thurgood marshall was the attorney who successfully argued brown versus board of education, but i fear that a few -- that few have a sense of marshall as a historic figure, and i confess that i was among them until i read richard kluger's terrific and magnificent book "simple justice." recently gilbert king in his gripping book mentioned by the

chief "devil in the grove" has also pulled back the myths of the past to give 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. 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 -- following the supreme court appointment he became the circuit justice for the second circuit. now, the circuit justice for those of you that are not lawyers or judges is sort of a judicial godparent for the circuit in d.c. looking after us from the second circuit. it had been our intention to begin with a presentation by marshall's first clerk at the

second circuit, our very own judge ralph winter. judge winter is recovering well from a recent medical procedure, but regrettably is unable to be with us today. i speak, i know that i speak for all of my colleagues when i say we look forward to having judge winter back with us again soon in good health. many of us have heard his delightful stories about his time with marshall. it is clear that ralph treasured the experience. judge winter delivered a eulogy to justice marshall at marshall's funeral at the national cathedral in washington in 1993 and a copy of that eulogy has been provided for you in the program so beautifully reproduced by our library staff, with your indulgence let me read to you from several small portions of judge winter's memorable address. marshall was appointed to the second circuit only on an interim basis, an interim

appointment, was a method by which judicial appointments were made while congress was not in session. instead of life tenure the judge served on an interim bases until confirmed or not confirmed. for marshall the interim was long. his nomination languished for eight months in the senate judiciary committee. during that time he was treated as a visiting judge and had no permanent chambers in this building. every two weeks or so he would pack up his files and move them to a vacationing judge's office. can you imagine that, having to pick up your files and moving around? i try to think of seeing some of my colleagues accomplishing that. back to winter. in spite of the strain of serving as a judge without being confirmed, marshall carried out his responsibilities with his characteristic good human erred 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 a coffee hour attended by clerks from other chambers. the sats fear was one of earthy stories, salty language and booming laughter. he was universally kind to and loved by his clerks in the imprint of his personality is inn dell blee stamped on them. thurgood marshall was the irresistible force for justice. the improvable 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 chair i wished memories 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 jurisprudence of our country as a lawyer and as a judge on the high court. today's discussion -- through today's discussion we will learn how marshall's influence on our national jurisprudence continues today through the law clerks he trained. i am absolutely certain that this will prove to be a memorable afternoon and evening. our panelists knew one of the great figures of the american experience in the 20th century. leading the discussion today is the honorable paul a. engelmayer from the southern district. he is a graduate of harvard college and harvard law school who worked as a reporter between college and law school. he clerked for judge patricia

walled at the d.c. circuit and then clerked for justice marshall from 1988 until 1989. following a distinguished career at the united states attorneys office in the southern district and a stibt at the solicitor general's office judge engelmayer joined the firm of wilber, cutler, pick ring, hail and do you remember. i just love that firm name, just sounds like a law firm you want to spend $700 an hour on. [ laughter ] >> yeah, and that's for the associate. i know. that's what you're all thinking. you can tell i've been on the bench for 30 years. in 2011 president obama nominated judge engelmayer to fill the vacancy created when quite frankly we were fortunate enough to receive jerry lynch as our colleague on the second circuit. senator grassley gave the judge a hard time for a few weeks but ultimately thought the better of his hold on the judge's nomination and for good reason.

judge engelmayer on july 26, 2011 was confirmed by a vote of 98-0. now, i've gone back and looked at the vote on june 12th of 2003 and my vote was 97-0. judge engelmayer, i don't know how you got that extra vote. i don't know. congratulations. judge engelmayer, on behalf of the court i want to thank you for helping us plan this event and for all 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 the moderator of today's discussion. judge engelmayer. [ applause ] >> thank you, judge wesley. thank you chief judge katzmann. i also want to welcome everyone

who is here in person in courtroom 1703 and watching remotely. tonight's turnout which approaches 650 people across four courtrooms is a record for this 80-year-old courthouse. the part of that no doubt is because we have an absolutely world class panel, but it also speaks, i think, to the giant to whom we're paying tribute tonight. it's been 25 years since he retired and nearly 24 years since he died, but thurgood marshall the lawyer, thurgood marshall the justice, still awes and inspires us. thanks to his brilliant and courage and vision in so many areas civil rights and civil liberties under the law and procedure and employment to name just a few our world in 2016 is a more just world. our panelists tonight have one thing in common, each of us had the great good fortune to spend

a year clerking for justice marshall who by the time we got to know him was already very much a living legend. including ralph winter who unfortunately was not able to attend tonight due to illness, we span justice marshall's entire career on the bench. ralph was his very first court on the second circuit and sheryll cashin clerked for him in his final year on the supreme court in october term 1990. in between greg diskant clerked in 1975 to 1976, martha minow clerked 1980, to 1981, ricky revesz 198 had do 1985, elena kagan 1987 to 1988 and i clerked the following year 1988 to 1989. elena, in fact, along with her co-clerks trained me and my co-clerks. so i can say that i had the rare privilege, although i can't say that i had the presence to appreciate it at the time, but

being tutored by two supreme court justice, one present and one future. each of our clerkship years has a different texture and character, each was shaped by the times, by the court's changing competition and of course very much by the year's docket, but certain aspects of a clerkship for tm were perennials and that's what we clerks called him at his request, he didn't want to be called justice or mr. justice, he wanted to be called t.m., boss or at the most formal judge. he in turn called us knuckleheads and some other nicknames perhaps we will get to tonight. one thing that a t.m. clerkship meant was lots and lots of time with him. every day after oral argument we would spend an hour or so across the conference table from his clerks in his private conference room near his cherished bust of frederick douglas. my year the court heard argument in 170 cases, which was fairly

typical for his tenure. t.m. would discuss the cases that had just been argued, he'd make notes in his binder with his trademark but pencil until he arrived at a decision as to how to vote. to be present 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 career called story time. t.m. would unspool the stories of his life, his roots in baltimore, his early career as a criminal defense attorney representing black defendants in the deep south who were charged with murder and rape and who were facing the death penalty if mob justice didn't get to them first, the civil rights cases including the desegregation cases leading up to and following brown, his jeers on the second circuit, his years as s.g., his years on the supreme court, his views about law and life and politics and current

events, his heroes, his villains. he was a master storyteller, he was very vivid and very blunt, he didn't pull any bunches and as you've heard he was riot usually funny. my career he had just turned 80 there was constant speculation when he might retire. one day he told us he didn't 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. [ laughter ] >> 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 whom we clerks so admired as well as his approach to his work as a supreme court justice. i'm going to begin in a moment by asking each of our panelists to take a few minutes and share

with you what their year with t.m. was like. i'm then going to put more substantive questions to the panel, a number of whom have written about justice marshall and invite their reflections and discussion. i plan to leave a fair amount of extra time at the end. apart from our panel where fortunate tonight to have two dozen our marshall clerks, including if i may single out an article 3 colleague for a special acknowledgment judge ginsburg of the d.c. circuit. we will open the podium to former clerks who wish to share a brief thought or collection about t.m. and get the panel's take. and then time per hitting we will take questions from the rest of the audience. so with that let's get started. i will begin by asking each of our panelists what was your year like clerking for thurgood marshall? elena, let's start with you. >> well, first let me just say how thrilled i am to be here. what an honor it is to be here. judge katzmann and judge wesley

thank you so much for inviting me for this quite wonderful event. it's terrific to look around the room and see so many judges from the second circuit and former t.m. clerks and some of the justices family members. it's really -- i think that the t.m. family it really is a family and it's wonderful to be here for this celebration. so it sounds like my year was pretty much like your year, paul, by which i guess is smot surprising since we were in adjacent years. when you are a clerk at the supreme court for anybody you feel as though you've won the lottery. it's a great job, it's a very heady kind of experience for a 28 or 30-year-old, 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 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 on to the court, which is not true of most justices. you know, most justices -- >> present company excepted. >> no. you know, they're known for what they do on the court, sometimes they're not even known for that, but it's -- i mean, i have to -- i have to think that he is, you know -- if there's anybody else like him i'm not thinking of it, somebody who if he 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 as a matter of like the

important things he had done, but, i mean, 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 so that 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 -- there 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 his inner office talking about cases, but also talking about life. and it was -- you walked into his office and you would start with the cases and you would go

every case and we 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 he had this -- i remember when you pressed too hard on something where he disagreed he would point to the commission on the wall and he would make you get up out of your chair and go to the commission on the wall and read whose name was on it. and then the other thing he used to do on those occasions he had the saying -- you know sometimes when you -- my clerks do this to me a lot, they say, look, you have to do this, you know? 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 that

we must have -- 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, story telling and he was the greatest storyteller i have ever met in my life. he was just a rack an tour. he had great stories to tell, partly it was the material, not a lot of people in life 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. it was like make you weep, make you laugh, make you do both at

the same times. 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 don't know. it's become even more remarkable with the years, i feel like i repeat a story on wednesday that i've told my clerks on monday and he never repeated a story. just like a new one would come out every single day, every single day. the thing i most regret about my clerkship year is not one of us had the sense to just write them all down as soon as we left this office because, you know, i can recapture maybe .1% of them and that seems to me a terrible loss. just 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. i mean, 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 -- >> thank you. >> okay. i enjoyed all the clerks, we loved it, it was the most exciting time of our life. i'm hopeful we don't repeat ourselves too often in saying how important the privilege of working with t.m. was, but it was pivotal in my life, my co-clerks, my colleagues, wonderful experience and a freight, great family. i clerked for t.m. in '75, '76, one year after watergate ended with the nixon resignation, so it was a different time. when i was hired, you know, i applied to justice marshall was one of my long-time heroes, i

was thrilled -- i was clerking at the time for scaly write on the d.c. circuit who was an old drinking buddy of thurgood's and as i'm sure you will hear thurgood had many drinking buddies, they tended to enjoy bourbon and if you were a thurgood drinking buddy you more or less could do no wrong. so i got the call from justice marshall who said to me if you're good enough for skelly wright you're good enough for me. >> i was completely enraptured by him. i later learned it was one of his lines, if you're good enough for henry friendly you're good enough for him, if you're good enough for ed winefeld you're good enough for him. but no matter. he was a humble man in the end and we were all desperate to be good enough for him. so that was an interesting year, 19 -- november 12, 1975, justice douglas resigned from the court

under some pressure from his colleagues. on november 28, 1975 the republican president gerald ford nominated john paul stevens to the court. 19 days later, december 17, the democratic controlled senate voted to confirm justice stevens and he was sworn in and served out the term. so it was a different time one could say. the big cases our year when they talk about these later a little bit, buckley against vallejo, the money equals speech case, the death case which was near and dear to justice marshall's heart, greg against georgia, we wrote dissents which were fun and exciting, we wrote the most boring court opinions. chief justice berger and justice

marshall were not close and somehow we got the dogs. i wrote -- i drafted for the judge an opinion on the constitutionality of the wild free roaming horses and burrows act and they tended to be unanimous opinions, but justice marshall cared about the craft and was no less demanding in the quality of the majority opinions that we got to write or draft as for the dissents, and we got to be members of the family. he was a summer assistant in the u.s. attorneys office in the summer district of new york for new york fans, when i was in u.s.a. there and we got to know sissy and john and be a part of the family. it was just an absolute thrill. >> i joined this distinguished panel in giving thanks for this

great opportunity and saying to chief judge katzmann and judge wesley, thank you so much. i have to say one of the highlights of my life was recommending elena kagan for a courtship with justice marshall and then going to visit and seeing what her time there was like. i want to tell you about my interview for the clerkship. i had one of those horrible colds, you know, where you have no voice and terrible things are coming out of your nose and i called the clerks and i gasped and i said, could i possibly postpone the interview? there was a long pause. you don't postpone a meeting with justice thurgood marshall. so i come with my box of kleenex under one arm, literally i'm a wreck, and they usher me into the office and the judge looks at me -- i can't get a word out -- he said, my daddy had a cure for what you have. you take quinine and whiskey and you leave out the quinine.

[ laughter ] >> and then he said, do you want the job? thank goodness. i said, yes, and they pushed me out of there. i 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 with the circ petitions and we would have 30 a day to do, i remember the first day it took me all day to understand what the issue was. i thought, there is no way i'm going to be able to do this job. and the judge would have a blue pencil and write comments on the circ petitions, we wrote memo on every single circ petitions, he was not in a circ pool and he was proud of that, and the comments were one of the ways in which we learned. we learned a lot about what he thought mattered and a lot about

what battles he felt were worth fighting. just two other words, one, teasing was the mood of the chambers, constant teasing, set the tone by the judge. nicknames of every sort. i was the only woman in this chambers or many other chambers, there were two other women clerks that year, and there were lots of names that i'm not going to repeat, but, you know, at one point, i don't know, one of my co-clerks had the brave moment to say to him why do you call us these names? he said, you're going to get called worse. and it was -- it was a really good lesson, a good reminder. my year it was october term 1980 that i started, there was a presidential election, you may recall it, president reagan was elected and the senate changed to be republican controlled and there was a moment when justice brennan came to the chambers and the two justices looked at each other and there's this, you

know, sense of, oh, my goodness, the world has changed and they walked down the hall kind of arm in arm, and it feels a little bit like that maybe to some people at other times as well. my year also -- my year also had a women in the military case, my fellow clerks told me i wasn't 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 to law school because of the civil rights movement. i had previously worked on school reform. so for me the chance to hear his stories and learn from him was incredible. the big surprise for me was what an outstanding lawyer he was, absolutely spectacular. and i think about him just about every day. >> it is such an honor to be here, i'm very grateful to judge katzmann and judge wesley and

judge engelmayer, it's great to be on a panel with justice kagan and my fellow law clerks. i want to go back to the call. by the time that i got my clerkship t.m. did not interview applicants. so i was clerking in this building for chief judge feinberg who was another spectacular experience in my life and we were actually talking to the judge, my co-clerks and i were in the judge's chambers talking about some case. the chief judge was the chief judge of the second circuit, they actually talked quite frequently. the judge's assistant came in and said, justice marshall is on the phone, so judge feinberg went to get his phone and the assistant said, no it's for ricky. so i kind of like sheepishly, it was early in the term, i sheepishly looked at the judge like can i leave your presence

and the discussion of this important second circuit case to take a call from justice marshall, but he was a wonderful man, he reassured me that this would be fine. so i left the judge's chambers, i went to my desk, i picked up the phone and in this gruff voice got on the phone and said do you still want a job? and, you know, i said, yes, i would love this job. he said, good, you got the job. see you in july. and, you know, for a minute i wonder if this was some friend of mine pulling a hoax, but i didn't quite know how you go about figuring this out. i mean, it wasn't obvious that you would -- you know, what do you do? so, you know, i figured it probably was okay, it probably was real, but i wait add few days and then i called one of his current clerks and i didn't think i could ask, is this real, but i said have you guys figured

out when we were supposed to start and he said, oh, yes, you should come like july 14th or something. so i had never met him when i came and i think he was on vacation so i didn't meet him until a few weeks later and it was an amazing experience. first for me, i had become a u.s. citizen only three years before that so the idea that i was actually going to walk into this building and be in the presence of a figure of history was -- was amazing. i mean, we don't in our lifetimes get the chance to meet a lot of people who really change the course of our society and much less so do we get a chance to actually spend literally hundreds of hours in their presence talking to them or at least hearing their stories. it was mostly a one-way conversation although every once in awhile we actually go get to say something.

there were some significant things about the term, the court decided garcia versus san antonio public transit authority overruled national cities, that was an 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 the time and we would split them up and we would stay up essentially most of the night because these cases ended up reaching the court after midnight for executions scheduled for like 2:00 a.m. we knew that the papers were coming because the clerk's office would get copies of the papers filed in the district court in the morning, the court of appeals in the afternoon, they would eventually make it to the supreme court in the evening and there were lots of these cases, we were up there most of the night many days. one day we actually talked to the judge and said, you know, we never imagined there would be this many cases and it would be

like this. he said, don't worry about it, it will come to an end pretty soon. i looked at him. and he said, yes, there is an election in november. after the election you will see a lot fewer of these cases. these are da's running for reelection. and it was powerful obviously and he was right. i mean, there were cases after that, but the volume went way down. and he cared enormously about each of these cases. in fact, these papers wouldn't get lodged until late at night and there was a protocol about it. the justice and sissy his spectacular wife would disconnect their phone in the evening, but when there was a death penalty case coming we had to call sissy in the afternoon to tell her that we would be calling late at night and then she would leave the phone connected. so there was a fax machine, i

think only one at the court, it was in the clerk's office and the circuit justice would generally sit in like the chief deputy clerk's office waiting for these papers to come through the fax and justice sweden was a justice for the case and law clerks were basically standing around this desk. when the papers came in the justice went and asked each clerk how is your boss voting? and i said, i'm going to run up to chambers and call the justice. and he said, well, what do you mean? don't you know how he's going to vote? he votes to stay all the executions. and i said, yeah, i know that, but he wants us to call him and he wants us to describe to him the legal issue. and he said, if someone is going to be executed he wants to know something about the case and then he will tell us his vote.

he was extremely annoyed, in fairness it was very late at night. you can't really argue. i had to call my boss. so i called him and came back and he said how is your boss voting and i said my boss is voting to stay the execution. and that was unusual. i was the only law clerk. i mean, all of us when we were there we were the only law clerks who actually placed those calls, everyone else had the case described based on the district court papers, the supreme court papers were exactly the same. the thing i remember -- i mean, the cases were fascinating, it was an enormous privilege to work on them, but what i remember the most like my colleagues in this group were the stories and often in our year the stories -- he actually came to us -- i shared an office

with my colleague rick pildis and there was a huge armchair in that office and in the afternoons the justice often stopped by and salt t in that cr and started telling stories. we sometimes came in saturday as did i. sometimes on saturday morning he would go straight to the chair where he sat and told stories. there was a protocol in the court that if clerks from other chambers stopped by when the justice was telling a story they basically had to stay for however long it took. and they couldn't leave while he was talking. there was an unwritten protocol. so there was a particular saturday whereby the afternoon i'd say there were 33 clerks our year, i'd say 25 or so were in the office, the office wasn't that big and most of them were sitting on the floor, half of them were starving because they hadn't had lunch and the justice was still telling these stories.

so that day the topic of that day was the strategy leading to brown versus board of education. what was -- the message was that while the goal of all this litigation that spanned more than a decade was eventually bringing to the court the argument that separate but equal was a violation of the constitution, the last thing he wanted was for this argument to come up too soon because he thought that without all the building block cases the court was not going to overrule plessi. so what he explained to us was a strategy about how to keep this argument away from the court. and in all the thinking that went into how not to answer a question if this question was ever asked directly in an oral argument in one of the early cases. what was actually amazing, the most interesting thing given the way our society has evolved is that he had control, absolute

control, of how these arguments were presented by any lawyer in any court around the country. in these days for any issue no matter how important there are going to be lots of different groups competing for attention, competing for publicity, competing for foundation funding and someone is going to have the idea that they are going to sort of do better by bringing an argument ahead of someone else. by force of his intellect and his personality and his prestige he was able to control the way these issues were presented to the courts over a period of more than a decade and i thought that was an amazing accomplishment and probably the biggest sort of take away i got from the year in the clerkship. >> thank you. sheryll. >> it is such an honor to be here with the t.m. family and like others i see so many familiar faces and i won't call on you, but i'm very happy and honored to be asked to talk about my year clerking. before i got married and had children i always said that my

year with justice marshall was the best year of my life. it started just the same as you, i just got a call, no interview, do you still want the job? you want the job? yeah, i want the job. when i started my clerk scott is here, when i started i wasn't 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 gruff voice saying, sheryll, you know, he wanted me to write a statement for him and he dictated to me what he wanted and that was like, i just got a call from thurgood marshall. he took us to lunch, scott, you will remember this, very -- i was the only woman, too, marcia, in the chambers and he took us to lunch that first week and the first thing he said to me was, when are you getting married, gal? that was the first thing. i was like why did you ask me that. you didn't ask anybody else that. he was preoccupied when i was

going to get married and i was gal the whole year. but for me justice marshall went to college with my grandfather at lincoln university and not only were they classmates, they were fraternity brothers together in alpha phi alpha together and with langston hughes was also their fraternity brother. so for me it was like he was something of a surrogate grandfather and i relished -- i mean, for me the highlight -- i would -- in addition to the time clerks conferences with him, i would often just go and sit with him and talk to him and he would tell stories about mark carpenter who was a lot like him, a crazy guy who was sort of a cut up in school and didn't get serious until later. one of the many stories -- 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. goody, 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 t.m. -- how langston hughes was the person who really pierced his social consciousness and i can get into that later, but the stories -- and i recall these moments where tears, as you said, would be streaming down your face and he could make you cry both with tragedy and comedy. it was like pure gold. whether dark or funny, he would do that to you. everything from going down to the village with langston hughes to party with a hip literary crowd, to his exploits in the south, the kind of stories that are in gilbert king's excellent

book, if you haven't read it "devil in the grove" it's fantastic. he once narrowly escaped a lynching to his frat boy pranks, to how he successfully defended men accused of rape. the high lie for me that year in terms of the work was i got to -- in addition to working on some very boring maritime case, very boring majority opinions i not to help him craft a dissent in a school desegregation case, board of education of city of oklahoma versus dowel and in that context i read every single school's case that had ever been decided by the court and i spent a great amount of time talking to him about this jurisprudence. this was his last year on the court, active year on the court, he was 82 and feeble and yet when i would talk to him about some of these cases he would

just light up, you know, particularly early cases like, you know, gong lam from 1927, that case in which a chinese girl had to basically be a negro. in these moments i could feel a glimmer of what it must have been like to have been a lawyer at ldf. so that was very special for me. a signature moment, i will never forget this, scott, you may remember this, toward the end of the term and i'm like toiling away on this dissent, you know, he's having this conference with us about our work and what we're doing and he asked me, gal, when are you going to have that draft to me, you know, in the school's case and i said, well, you know, i think i need about a month to get it together and he paused and looked at me and he said, i love you, gal, but you've got a week. and, you know, it reminded me --

i learned so much, gilbert king's book about what that work ethic was and, you know, damned if i didn't get it done in a week. and to this day -- to this day when i'm on a tight deadline i remember that, you know, you think you need longer than you can, but somehow you will manage if you just bear down and get it done. so, you know, the other thing about this year -- and then i will wrap it up -- this was the only year on the court for justice marshall without brennan there. scott will remember this. you know, he was the senior liberal justice and for the first time on the court he's having to kind of assert a leadership role and this man had been silent at the bench suddenly started talking and he started like -- and he would ask these questions, not every single case, but inevitably he

would ask these questions that were clearly designed to rattle the lawyers, just go for the jugular, and it was delicious, absolutely delicious to watch. so that's my year. >> you know, everybody was talking about their call with justice marshall so i just want to put in mine. it started exactly the same way, he called me over the summer, i was still hanging around harvard law school, i was taking bar review courses and i was in the loan review offices when the call came in and i got on the phone and he said, so do you still want a job? and i said, exactly what ricky said, i said, i'd love a job, and he said, what's that? you already have a job? and of course, you know, i'm turning white and i said, no,

no, no. no, i don't have a job. what i said was i'd really love that job. i mean, i want this job. i don't know, if you already have a job. and this went on like, you know, two more times. i don't know, if you already have a job, i don't know. finally he took pity on me, he said, okay, well, i guess if you don't have a job you can have this one, you know, see you july 4th, whatever, july 14th, whatever it was. so that was my sbloe duintroduc justice marshall. >> with that let's turn now more substantively to justice marshall as a dissenter. t.m. as you've heard tended not to get the sexy majority opinions but he wrote lots and lots of major dissent. [ applause ] >> there we go.

and working on dissents with t.m. was really a staple of every marshall courtship. marcia, you have written about justice marshall's dissents so i'm going to ask you to lead off this part of discussion. what was his philosophy about dissenting? what was he trying to accomplish? >> one of the phrases that he used very often was pick your battles and that was a surprise to me because i had worked for a different judge, for judge david basilon who sometimes switched his vote to be able to dissent. he just loved dissenting. and this was a very different idea. it was very clear that the 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 dissents and, therefore, just not be paid attention to. he wanted to sustain the moral authority that comes from, you know, this is the moment to dissent, and he also -- this he

was very explicit about -- he said, we won't have the energy if we are going to dissent on every one of these. so that was his philosophy. on the other hand, there were lots and lots of cases where there were dissents and i really watched that pick up over the course of his time on the court. i read all of the dissents to write my tribute to him when he retired from the court and it was very striking that he was bearing witness and committed to telling the truths about human beings and people's experiences, particularly people who in one way or another had been marginalized by society. one example, famous dissent, is united states versus krass, 1973, the majority reflects a due process challenge to the filing fee, someone seeking bankruptcy. this is like a butt of a joke. you didn't have the money to pay for the bankruptcy? well, in any case the majority

has a statement saying, look, there is an installment plan that the court offers. so people can pay the filing fee, just spread out over a listening time, and it adds up to being 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 disgraceful for an interpretation of the constitution to be premised on an unfounded assumption about how people live. and then he went on to explain what that amount of money went to a poor person. that is just an example of what he would do over and over again in dissents. and he would highlight, here is the details of actual life. and so just bear with me. i read all the dissents so you're going to hear he dissented and identified the

experiences of poor people, prisoners, minors, older people, minority political parties, people with disabilities, native americans, members of religious minorities, immigrants, non-citizens, fathers, women, rock music fans, anyone who might seek an abortion, students, residents of puerto rico, members of racial minorities, protesters and people with long hair. and in each of these instances he described, you know, get behind the image, guys, let's try to figure out who these people are and here is something about their lives. another theme in his defense -- in his dissents was defending the rule of law and objecting to abuses of power by government officials. and related to that particularly stinging dissents about abuses in his view by judges in their lack of candor. and he would often talk with historical analogies.

he was a master of the analogy. find a way to draw a connection between this case and that case. so just one example, skinner which i think was your year, skinner versus railroad labor executives association in which there was a challenge to mandatory blood 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 talk about emergencies. the claim is there is an emergency, there is dangers and, therefore, we have to give way our usual concerns about searches and seizures and privacy, and then he goes on in a paragraph, remember the japanese internment, remember the mccarthy era, and remember the regrets that judges have had about approving those things. so there was a sense of history and a sense of bearing witness to the history reminding people

of the history, and also really being very, very concerned and he was very explicit in one case, city of mobile versus bolden 1980, maybe i should end with this one, being very concerned that if the courts are no longer trusted by the most marginalized in society, that that would be terrible for everybody. and there he said that the government expects the victims of the system to use the official channels for redress and protest, then those channels better be available. >> i will jump in. i had very much the same experience as martha did and what struck me was what a historian he was and how much he tried to use his dissents really to unpack history. my year was really at times for him a bit of an apocalyptic year, the '88, '89 year was the

first full year of justice kennedy. there had not been a democratic appointee on the court since 1967, there wasn't destined to be one since 1993 and the court heard a series of cases that threatened to upset very important pillars of the law as he saw it, strict scrutiny for affirmative, whether to reverse roe versus wade in the webster case, the court took cert or whether to reconstruct 1981 the contracting case and from time to time he would allow himself to be heard if all that is happening could brown be far behind. he said that. and i think in fairness he also would then quickly roll that back and say i don't really think that's going to happen, but he was concerned. and he used his dissent in one of these cases, the richmond versus crosen case, the strict scrutiny case, the first one in which the court explicitly

adopted strict scrutiny for affirmative action racial classifications to make the case richmond had adopted a richmond municipal on a contracting pland been upheld by the supreme court at the federal level in a case. tm 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 race discrimination in its midst and acts forthrightly in a pattern to adopt it. this is our history. our decision year is historical. particularly alikening

affirmative action. >> my year, the death penalty was reinstated and i don't think there was an issue that was closer or more important to his heart than the death penalty. in 1973, furman against georgia court had invalidated the death penalty in the country because it was arbitrarily imposed and tm thought well, we're done, the death penalty's done. but 35 states enacted laws reinstated the death penalty as did 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 you've read it, about

defending people, mostly black men falsely accused of rape or murder. and if he won a life sentence, a guilty 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 penalty imposed. and i just see him right now sitting in front of me shaking his head and saying i have seen so many innocent negro men and boys sentenced to death. he always used the word negro, he was not a fan of black and african-american, 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 penalty. and the case was argued and

sadly, for those who are on the tm side of the ledger, by 7-2 vote in greg, the death penalty 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. you know, was it antithetical to the morals or evolving societal standards. it's hard to say since 35 states had enacted these laws. so he was arguing about deterrence and retribution and ideas of that sort. and i wondered, why didn't he talk about what he knew, which is the death penalty was often wrongly imposed on innocent people?

and i thought -- as i thought about that, that, you know, at that time, you know, we didn't have the best unfortunate reservoir of the innocence project and dna analysis that teaches us that it's true, that people with an undue number of occasions convicted wrongly. and had he written the dissent which was in his heart which is i, justice marshall know that innocent people are convicted all the time and we can't sentence them to death, he didn't have an empirical sense to say that. he was just a lawyer. he'd sound like their mother or wife. so he didn't write that but that's 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 7-2 to uphold the

death penalty, three justices on that court later said they were wrong. justice blackman was on that court. he said i'll 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. justice powell was on that court and said to his by og fer it was a mistake. so there could have been a 5-4 reverse outcome and it just didn't happen. >> the year i clerked was not a year of big cases. i remember the reporter for 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 you've probably never

have heard of, but it was a really important case for him. it was a case called -- versus dickerson public schools. it was a case about a young girl, i think dickinson was in kansas, maybe, it was a young white girl who lived in a rural area 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 don't think that you can rule for the girl. and he said why not. and i said, well, you know, indigency, not a suspect class

and education never held to be a fundamental right. so i think rational basis scrutiny which is the lowest tier of constitutional scrutiny applies. and there's a rational basis for this. so i think, you know, it's -- you have to rule for the school 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 anybody 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 enough. and i would draft it again and he'd send it back and say make it more powerful. but he cared so much about that case, i don't think there was anything that was as closer than to his soul. and as i said it was an african-american child it was a white child in the middle of some big square very white 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 was -- he just couldn't imagine it. that also was a 7-2 case. >> all right. let's move on to another topic. everyone knows we've heard of

course about tm's interest both as a lawyer and on the bench of civil rights. as a justice what other areas of law engaged him? what other areas were of special interest to him? gregg, you were the earliest of us to clerk. do you want to lead us off? >> well, an issue that, you know obviously many of our dissents were on criminal justice and racial issues and the like. he was very interested in libel law. now, he -- there's obviously some relationship between the press and the civil rights movement and of course times against sullivan was -- you know that in advertisement and in support of martin luther king. but tm loved the press. when he was a young lawyer before he got full-time engaged in civil rights work, he defended the baltimore-afro american in the offices of mr. mcguinn.

maybe he has a first name. and the baltimore afro american was his client. they had a very close relationship. they loved newspaper man. when the brown decision came down the baltimore afro-american headline read "thurgood wins" and of course he did. and so, in the mid-'70s when i was clerking there were big libel cases. there was sharon against times and westmoreland against cbs. in '74 a couple years earlier gurts had been decided saying that the actual malice libel standard would apply not only to public officials and public figures but there could be a category of limited purpose of public figures yet to be defined but including people that thrust themselves into public controversy.

and so a case came our way, firestone against time, or time against firestone which was a salacious divorce case out of florida. mary alice firestone had sued her husband. he had sued her back for adultery and cruelty and all of this stuff. the trial record of the judge had some powerful comments. according to testimony on behalf of the defendant, extramarital escapades by the plaintiff were bizarre and would have made dr. freud's hair curl. on the other hand, testimony about the husband would indicate that he was guilty of bounding from one bed partner to another with erotic zest of a setter. so the divorce was granted, the judge said -- while he discounted some of this stuff, nonetheless it's the court's finding that neither party is

domesticated. therefore, the marriage was at an end for lack of domestication. "time" magazine reported this in a milestone in about one sentence that more or less said the divorce had been granted on the ground of adultery. mary alice firestone sued in florida because in her argument any idiot would know that you can't get alimony granted if the grounds for divorce were adultery. so the reference to lack of domestication must mean something else even though the lack of domestication wasn't an actual ground for divorce in florida law. the florida supreme court thought this was an egregious example of negligent journalism and the case came to the supreme court where justice rhenquist writing for the court found that

mary alice firestone was not a public figure, notwithstanding the 47 articles in the miami herald and the 45 articles in the "palm beach press" and the press conferences she held and the fact she was a member of the sporting set in palm beach and was regularly covered. and justice marshall dissented saying she had -- what'd he say, that he must assume that it was by choice that mrs. firestone became an active member of the 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 to a private figure libel case. and justice marshall thought

that was simply outrageous and the press should get some leeway. and that was the essence of dissent. but basically he loved reporters, he loved paling around. he sort of grew up in the front page era of ben hickance charles macarthur's play. >> let me broaden out the question, apart of other areas his interest in, were there any other areas? go ahead. >> so this was not the world's most important case. it may have been the world's least most important case. so this was a mining statute. it required holders of certain mining claims to make yearly filings of their intention to keep these claims and the statute said the filings needed to be made before december 31st and failure to comply with this

requirement was to constitute abandonment of the claim. as you might have imagined these poor claimants filed their claim on december 31st and this case made it to the supreme court. turns out the agency that administered the statute itself seems to have been quite confused about what it meant. apparently these claimants had got advice from employees of the bureau of land management saying any time of the year including december 31st of this year would be fine. there was also some regulation that said if the claims were filed by may, which these people had not done, as long as the claims were received by january 19th, tluz timely -- and there was no requirement of them having been mailed any particular time as long as the envelope is received by january 19th. so there was some confusion here. and as a result justice stephens along with justice brennan dissented, justice powell

dissented. justice marshall said if the statute said before december 31st it had to be interpreted it that way even if congress might have meant or said by the end of the year, maybe this wouldn't be the world's best drafted statute. i didn't work on the case my co-clerk 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 basically drop his position, which he actually felt very, very, very strongly about. and he humored us for a while, but after a while, these discussions actually came to an abrupt end when the justice said with some annoyance in his

voice, i was solicitor general of the united states. you can't run a government if some court decides before december 31st does not mean what it said just because it might lead to a harsh result. even though constitutional decisions didn't make this obvious, from time to time you saw that he had the sensibility of a government lawyer. in this case, i think in my mind illustrated very clearly the fact that -- that he came across and he came across with a lot of vehemence. it would not have been crazy for him to join dissenting approach that justice stevens, powell and brennan had 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 suit, group of

latino employees who said that their employer had discriminated against them. they had lost in trial court and then took an appeal. for some reason the lawyer who filed an appeal did not include one of the names of the plaintiffs. and the question was, you know, you had a suit brought by five plaintiffs and only four were named, the last one was he going to lose his claim for time? all the clerks go in and he can't possibly lose his claim on a mistake by a lawyer. and his view is 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 -- he said the only thing you can expect if you're a litigant is that the rules are adhered to. and the thing i had always

counted on if i was a litigant for unpopular people was at least the judges would follow the rules and that you can't have a system where everybody just decides whether the rule is good or bad or whether we want to follow it or not but the greatest protection lies in the rules and sometimes that means you're going to have a bad result like this and it's just too bad because there's a greater value in having a system of rules that everybody knows is a system of rules. and that was so powerful to me. >> i had a similar experience. the one time he just shouted at me. we had a case in which a lawyer had missed a deadline. and i did not -- but it was a death penalty case. and so his formal insistence on the rule and having no patience for bad lawyering clashed with his death penalty context. the person was going to lose their habeas whatever. and the exact same thing you

can't do this. and he shouted the stamp, ultimately the five of us -- scott remembers this. we had to move him. it was very unpleasant. it was only because of the death context that he changed his vote. yes, that's when i learned about that value and you articulated it better today. now i understand it a little bit better. >> all right. let's turn now to tm as a story teller. we've heard references to this. among his stories i think we can all attest he talked a great deal about the battles he'd fought in his career. what were some of the more memorable stories and more to the point, what were the morals? what were the point of these stories? rickey, you mentioned an exchange you had with tm. the second circuit confirmation hearing. can you lead us off? >> so, this is something talked about a lot and obviously it was an extremely traumatic moment in his life.

so, i was working one afternoon and he's on his way home and he stops by my desk and says rickey i'd like you to read a transcript on my confirmation hearing to the second circuit. so, as he leaves i call the library and ask them to send me the transcripts. it turns out there was a lot of stuff to read, i think roughly a thousand pages and it was in all these different books. there were several hearings spaced out throughout the years. 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 the second circuit in september 1961. the senate recessed a few days later and he got a recess appointment. and he was resubmitted at the beginning of the next session. 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 chaired at the time by senator eastland who was a segregationist and who was not pleased that there was perhaps going to be a second african-american judge on the u.s. court of appeals. there was only one at a time on the third circuit. 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 senator's going to be focused for a long time on violations of texas law by a private lawyer in texas who had been retained on a case by legal defense fund. justice marshall was the

director of the legal defense fund. there was no allegation linking legal defense fund or any of its employees to these allegations, this was a private lawyer but lots of time and energy and scrutiny took place. the committee complained at length, though, thurgood marshall had worked in new york for a long time he was admitted to the maryland bar and now 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 lawyer's guild received lots of scrutiny and there were efforts to suggest that he had or at some time had had communist sympathies. he explained he resigned from the national lawyer's guild in 1949 over the guild's criticism

of the handling of a trial of an alleged communist. along the same line, the committee focused on the fact a former communist party member of texas had organized sitting on behalf of the naacp. he was also the -- because he's sitting very orderly unlike other sittings and were not all orderly so this apparently proved something. justice marshall explained that at the time of those sittings the ldf and the naacp were independent legal entities and he had no connection to any of these things. no good argument was raised. other things was that he had experience in the very narrow field of civil rights law and didn't have a good understanding of the securities law cases that 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 most important case of the century before the supreme court. that did not seem to convince the senator. the bottom line was that 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 he was extremely grateful. and we had heard different snippets of this story but reading the transcript made it come together. so kenan and javitts threatened to bring the discussion to the floor without a recommendation. on the basis of this pressure, eastland allowed a vote to take place. the committee vote was favorable, 11-4 and the vote on the senate floor was favorable, 54-16.

all the negative votes before the senate were cast by southern democrats. so after this close to all nighter, the next morning, when the justice arrived, 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. but he says, oh, nothing, rickie, i just wanted you to know about it. [ laughter ] so when he retired from the court i wrote about it in the law review and 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 i'll 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 forward and the judicial nominee heads for the senate, the attorney general should come and testify. now we don't 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 african-american 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 eastland and stopped the mistreatment. especially because the session was coming to an end at that point his recess appointment would have ended. i never actually checked this. the justice claimed that he could have gotten the second recess appointment but he couldn't get paid to do the job and that somehow another president kennedy said he would pay his salary on the second recess appointment which would have been problematic in what cases in which the government appears. i never got to the bottom of that. but bobby kennedy was a villain. his views on president kennedy were somewhat more neutral. and he had -- 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 had persuaded him to give up his judgeship on the second circuit and being attorney general. 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 johnson's 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 i'm 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 judge's 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 wasn't. but he comes back to chambers and he tells this story. and you know, he's not angry. he's not disappointed. what's 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 could 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 try to recruit people to be willing to be plaintiffs when they really were putting their lives on the line. he is in a car and he rolls into town and he's 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 he's 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 i'm just going to tell one of them, because it's the cleanest one. [ laughter ] so he did love to gamble and this is a joke about someone who was in las vegas and lost every single cent. and it's 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? so this man literally has not a quarter, nothing. so he goes to the men's room and he has nothing in his pocket and he's 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 over. and as the judge would say, it wouldn't be a good story if he didn't leave there and take the quarter and put in the slot machine and it wouldn't be a good story if he didn't win big there and take it to the poker table and then to the craps table and invests the money in the stock market doing well and he hires a private detective. then 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 men's room. and our hero says that's 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 wasn't 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 wasn't looking for handouts. he didn't support handouts. he supported opportunities. [ laughter ] >> all right. we're running a little tight on time but i want to ask this question and get everyone's take on it. it's 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? i'm going to ask you to lead us off. you were clerking for him the day he announced his retirement. you've recently written about his perspective. what would he say? >> that's tough. well, let me give you a sense of where he was the year i clerked for him. i mentioned that i worked on the school desegregation case. it's poignant for me to be working with him on something that was his life's work.

and you know, if you're familiar with the court's education cases, dowell was the beginning of these three cases in the '90s where the supreme court essentially says it's time for -- >> it's over. >> -- federal courts to stop policing school desegregation. and this was very painful. he, like i said, brennan had stepped down and it was clear that we were going to be writing a 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 rehearsing in the chambers with us what he was going to say to his colleagues, you know. he was saying things, trying out

things like am i supposed to keep telling black kids it's 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 he's back at work, back to being jolly. but you know, he had tough days like that. and i wrote a piece about justice marshall's approach to jurisprudence.

and that case that you just mentioned that starts with a "k," that was one of my prime examples of justice marshall's 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, you're right. i mean, like, he had wonderful lbj stories. i'm 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 what's happening in public education today and the fact that black and brown children are more segregated today than they've 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 after the clerkship. it was a clerk's reunion in 1987, 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 and give reminisces. after that, well, i think early in the process, but the justice stood up after that talk and walked to the podium and responded very movingly making very clear his disagreement with his former clerk. and he said that his dream, the justice's 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. and -- 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. and moreover he said 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, it's 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. he's a fighter. he spent his whole life fighting for justice. he never gave up. >> all right. i'll 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. we've got to be patient. and i think he would find much to celebrate over the last 25 years with the hesitations and reservations that we've mentioned. the election of the first black president.

i think if you look at lawrence versus texas and the same-sex marriage cases, there's a part of his jurisprudence which was liberated with the freedom to act in personal spaces. he wrote saying you can't criminalize the possession of obscene materials in one's 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 it's got effective facsimiles in so many different areas and he would see that as a very good thing. and i think he would be thrilled elana, with you and justice so

tomayor. i think he would be very, 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 i'd ask everyone to keep the thought brief. we don't have a lot of time. please identify yourself and your year. >> scott brewer. i was a clerk in the october term of 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 there's a saying from a philosopher that i admire a lot

that taught me something very important about justice marshall. not by wrath does one kill but 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 psychotropic drugs to make him sane enough so they could 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 psychotropic drugs. could be by injection, orally. and he said well next time you give him the injection, why

don't you just 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. and since my former dean and current dean are here, this is the place where i had my first job with judge feinberg which we have several members here. it's quite an honor to be here. i want to make three really quick points. one is to pick up on what justice kagan said. which is justice marshall would have been one of the most famous people of our century if he never set foot on the supreme court. his legacy, it's 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 and that is the enduring legacy we need to keep alive. the second is about the stories as my current dean said, the stories were amazing. but one thing to remember about the stories is they weren't 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 clerk's 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 justice 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 his law clerks all became a part of. but there's one member of that extended family who was with him i think his entire time on the supreme court, since he was in the solicitor general's office. and that's 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 i'm eternally grateful. thank you. >> thank you, david. ira. >> hi, i'm ira feinberg, i clerked for justice marshall in the 1973 term. 1973/1974.

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 has to do with your question, paul, about surprising views of the justice. each sitting of the court, the clerk's 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 heard of. the case involved the issue of reverse discrimination which was coming to the supreme court for the first time by a white student who had been denied admission to the university of washington law school and who 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. 5-4 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. and the piece that is surprising and i'd 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. that's my story. i'd be interested in the panel's thoughts on that.

>> thank you. i'm vickie jackson. i teach law at harvard and i had the great privilege to clerk for the justice in 1977, which was the bocci 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 also had the great privilege to clerk in the southern district and it is always a pleasure for me to be back in this wonderful courthouse. i have three comments. first, i remember recommending to the judge that we grant an extent -- a motion to extend the the time in which to file a sir petition. i didn't think it was a big deal. and he said look here. and i looked, he's pointing at the signature line and i said, what is it, judge?

he said, who signed that. i looked and said it's the lawyer's secretary. what do the rules say? the rules say it has to be signed by the lawyer. denied. the rule formalism because the rules are what protect us. it's a theme throughout the clerkships. point two, bokki, justice marshall agonized over his dissent in that time. for a long time for or his separate opinion. it was a very complicated case both counting. but by then he decided for affirmative action intermediate scrutiny was the appropriate approach. and in his opinion my memory is he began by resort to history as so many of you have 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 doesn't need saying because we all know

so much about his amazing deeds. but he wasn't only of course a wonderful story teller and litigator, but he acted his ideals out. here's 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 didn't believe in equality only for one group. he believed in it for all. >> i think this unfortunately needs to -- barbara. go ahead. >> i'm barbara underwood. i'm the state solicitor general and i clerked for justice marshall in the '71 term. i was his first woman law clerk and only the fourth at the court. that may seem strange to most of you now. this was a time when many judges, including judges who thought of themselves as anti-discrimination judges would say openly oh, but i couldn't

have a woman law clerk. after all we sometimes stay late in the office. and what would people think. and i won't 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 i came to be selected. people talked about the call. my judge for whom i clerked 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 half-hour, 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. don't take this the wrong way. my partners told me not to ask this question but it's really very important. how do you feel about dirty jokes? and i sort of took a deep breath and said well, if they're 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 jokes and not be concerned about them and he also likes his law clerks to increase his repertoire. [ laughter ] not true, i think, actually, but that's 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 clerks started 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 maybe the dirty -- 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 there's been some nonsense about my not wanting a woman around here. that's 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 our program. but i just wanted to say this. >> judge ginsberg. >> one more. i'm sorry. forgive me. go ahead. >> thank you. i didn't 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? >> i'm sorry. doug ginsburg. '74 term. i think that's after i read before greg, if i'm not mistaken. two points. one about -- they've all been

glancingly referred to, the point about rule formalism a little more directly. but i think it's 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, you've heard a sample, there are more in gilbert king's book. there are more in the terrific play that laurence fishburne does, in all these stories, he's never the hero. never. thank you. [ applause ]

>> i said at the beginning we had a world class panel. i think you 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. >> thanks again to paul englemire for a spectacular job. [ applause ] and to a spectacular panel. your words will live on with us in our learning center. we're so grateful to you for these reminiscences as you sit

at the bench where thurgood marshall sat. american history tv is in primetime all week here on cspan3, with our original series landmark cases. tonight, we'll look at mapp versus ohio. found evidence cannot be used in criminal prosecutions if it's collected in violation of fourth amendment protections against unreasonable search and seizure. that's tonight on c-span3 at 8:00 p.m. eastern. landmark cases returns live next february on c-span. join us to hear more stories of the people who sparked ground breaking cases and the justices and lawyers who were key to the supreme court's review. all persons having business before the honorable the