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tv   Justice Thurgood Marshalls Legacy  CSPAN  August 9, 2017 4:25pm-6:28pm EDT

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off a skyscraper because that was a better alternative than burn alive. >> it was followed by afterward with senator jeff flake at 10:00 p.m. eastern and robert o'neal at 11:00 p.m. on c-span2's book tv. up next on american history tv on c-span3, a conversation on the legacy of supreme court justice thurgood marshall. he was the first african-american on the high court serving from 1967 to 1991. we'll hear from a number of his former law clerks including current supreme court justice elena kagan. >> i am robert katzman chief judge for the court of appeals for the 2nd circuit. today is a very special day. some 650 of us are here in this unprecedented gathering in four
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courtrooms of the thurgood marshall u.s. courthouse to celebrate an american hero. thurgood marshall to whose memory this magnificent courthouse is dedicated to 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 engaged in the courts of the second circuit, and initiatives which i had the privilege of proposing which have taken life because of the creative and dedicated work of remarkable colleagues of the bench, bar and our court staff. the first, the 125th anniversary commemoration of the second circuit court of appeals wonderfully chaired by richard c. wesley has several components
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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 and the community is a project of all of the courts of the second circuit, a project which through a wide range of 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'll be going live with our civic education website which can be found on the court which you'll be able to find on the court of appeals website and we invite you to explore.
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thurgood marshall's life is very much a part of these initiatives. as to the court's history in 1961, president john f. kennedy appointed thurgood marshall on the circuit judge on this court where he sat in this very courtroom until 1965 when president lyndon b. johnson appointed him first as solicitor general of the united states and then as an 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 spanned 32 years. in this building, thurgood marshall occupied chambers on the 20th floor. his successor in that case, our beloved feinberg also occupied that space succeeding justice marshall, and over the years
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judge feinberg had the opportunity to move to bigger quarters as he gained seniority and he never left the justice's chambers. he said 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 biowitz noted in his article for the 12th 5 anniversary collection of biographies published by the cornell laureate. in the last few years we have taken steps to ensure that thurgood marshall's legacy is appropriately honored here in this courthouse. two years ago gilbert king, pulitzer prize-winning author and the dawn of a new age in america delivered the hands
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lecture of the 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, size you no doubt observed, everyone 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 engmeyer, both marshall clerks and the terrific 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 this -- 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 plaintiff's
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attorney in brown versus board of education and as the solicitor general, as a juryist in the second circuit and the supreme court. you will be able to see the videos and hear thurgood marshall's voice arguing in the supreme court. you'll have a sense of the impact on the worlds with which he interacted. moreover, students of all aejge will be able to explore further the legacy of thurgood marshall when this spring we inaugurate on the floor of this courthouse, a state of the art learning center, a civic education initiative and you'll be able to see in permanent ways, the life of thurgood marshall and that's a project which i co-chair with judge marrero of the southern district of new york. today we are graced by representatives of the marshall family. his son thurgood junior.
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thurgood junior's wife, teddy and 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 assembly, many of whom are friends of mine who are longstanding 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 law school. martha minnow, the current harvard law school dean herself, a renowned scholar of social policy. ricky ravez, the executive director of the american law institute and former dean of the nyu school of law and leading expert on environmental law.
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gregory discount, a highly regarded litigator, cheryl cashen of georgetown university law center and a distinguished scholar of social policy and judge paul englemeyer, 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.
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i'm glad i haven't been a lawyer for 30 years arguing appeals. i don't know how i'd fare with that group 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 2013, the second circuit resolved to press not a series of programs during the 2016-2017 term to commemorate the 125th anniversary of this great court. to that end, the committee of judges, core personnel and lawyers was appointed to plan a number of events in publications that would tell the story of the second circuit as reflected in its jurisprudence, its impact on the cultural and economic climate of our nation and the lives of the judges who have
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labored here. the names of those folks who have served on the committee on the back of the program. today's panel discussion is the fifth in a series of programs planned by committee and executed by the hard work of the core family and its friends. in the next few months core personnel will re-enact several famous appeals heard at the court, a distinguished scholar will deliver a lecture on the memorable first amendment case and a panel of lawyers and judges will explore the circuit's relationship with the 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 for
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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 few have a sense of marshall as a historic figure, and i confess that i was among them and until a read richard kluger's magnificent book simple justice and recently gilbert king mentioned in his book "devil in the grove" has pulled back the past to give us a look at how marshall lived 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
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1965 and later the supreme court in 1967. 1967, a great year for me and that was the year i graduated from high school. it makes me feel old now, to be honest with you. >> following the supreme court appointment, he became the circuit justice for the second circuit and now the circuit justice for those of you not lawyers or judges is a sort of a judicial god parent for the circuit in d.c. looking at us from the second circuit. it had been our intention to begin with the 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
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delightful stories about his time with marshall. it is clear that ralph treasured the experience. >> judge winter delivered a eulogy at marshall's funeral at the national cathedral in washington in 1993 and a copy of the eulogy has been provided in the program and with your indulgence, let me read to you from several small portion of judge winter's memorable address. . marshall was arpgs pointed on the second circuit on an interim basis and an interim appointment and it was made while congress was not in session. instead of life tenure, the judge served on an ints rim basis until confirmed or not confirmed. for marshall, the interim was long. his nomination languished in the senate judiciary committee. during that time he was treated as a visiting judge and had no
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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 out. i think of my colleagues in accomplishing that. >> back to winter. in spite of the strain of serving as a judge without being confirmed, marshall carried out responsibilities with the characteristic, good-humored perspective on life. the most famous men or women rarely cli rarely live up to their press clippings as a person. thurgood marshall lived up to and even outdid his press clippings and he was a warm, friendly, incredibly witty man, a totally lovable 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 cop coffee hour attended by clerks from other chambers.
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the atmosphere was one of earthy stories, salty language and booming laughter. he was universally kind to and loved by his clerks and the imprint of his personality is indelibly stamped on them. thurgood marshall was the irresistible force for justice, the immovable 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 was indestructible as are the cherished 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 on the country as a lawyer and as a judge on the high court. through today's discussion we
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will learn how marshall's influence on the national jurisprudence continues today through the law clerks he trained. i am absolutely certain that this will prove to be a memorable afternoon and early evening. our panelists knew one of the great figures of the american experience in the 20th century. leading the discussion today is the honorable pa paul englemeye. he worked as a reporter for the wall street journal between college and law school and decided to get a real job, i guess. he clerked for judge patricia wald at the d.c. circuit and he clerked for justice marshall from 1988 until 1989. following a distinguished career at the united states' attorney's office and a stint at the solicitor general's office, judge englemeyer joined pickering, hail and dure. i just loved that firm name. wilmer, cutler, pickering, and
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hail and dure. it just sounds like a law firm you want to spend $700 on. and that's for the associate. you can tell i've been on the bench for 30 years. in 2011, it was created to receive jerry lynch as our colleague on the second circuit. senator grassley gave the judge a hard time for a few week, but ultimately thought the better on his hold on the judge's nomination and for good reason. judge englemeyer 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 englemeyer, i don't know how you got that extra vote. i don't know. congratulations. judge englemeyer, on behalf of
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the court i want to thank you for helping us plan this event and for your assistance on conquering the endless set of challenges that we faced in making today a reality. ladies and gentlemen, i give you the honorable paula. englemeyer who will introduce our distinguished panel and serve as moderator of today's discussion. judge englemeyer. [ applause ] >> thank you, judge wesley and thank you, chief judge. i want to welcome everyone who is here both in courtroom 1703 any watching remotely. tonight there are 650 people -- is a record for this 80-year-old courthouse. the part of that, no doubt is because we have an absolutely world-class panel and it also speaks, i think, to the giant to whom we're paying tribute tonight. it's been 25 years since he
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retired and nearly 24 years since he died. but thurgood marshall the lawyer and thurgood mabl the justirsha justice inspires us. thanks to his brilliance, courage and vision and so many areas, civil rights and civil liberties, criminal law and procedure -- [ indiscernible ] our panelists tonight have one thing in common. each of us have been 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 unable to attend tonight due to illness. we stand and look at justice marshall's entire career untilled end. ralph was his first clerk on the 2 rnd circuit and cheryl clerked
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for him in his final term in 1990. in between, greg clerked in 1975 to 197637 martha minnow clerked in 1980-1981. ricky ravez clerked from 1981 to 1985 and elena kagan clerked. e len a in fact, along with her co-clerks trained me and my co-clerks, and so i can say that i had the rare privilege, although i can't say i had the presence to appreciate it at the time, of being tutored at once by two supreme court justices, one past and -- one present and the one future. each of the clerkship years have a different texture and character. each was shaped by the times, by the court's changing composition and very much by the year's docket. certain aspects were perennials and that's what we court clerks called him at his request.
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he didn't want to be called justice or mr. justice, and he wanted to be called at the most, formal judge. he in turn, called us knuckleheads an affectionate term and other names we'll get to tonight and one that a clerkship meant was lots and lots of time with him. every day after an oral argument we would spend an hour or so from his clerkses in the 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 and so there were lots of those hours. he would discuss the cases that had just been argued and he'd make notes in his binder with his trademark blue pencil until he arrived at a decision as to how to vote. to be present as he talked through cases with landmark cases or soon to be forgotten cases was a thrill. it was literally being a witness
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to history and then would come what the four of us called story time, and 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 he brought including the desegregation cases leading up to and following brown, his years on the 2nd circuit and his years on the supreme court, his views about law and life and politics, current events, his hero, his villains. he was a master story teller. he was very vivid and very blunt. he didn't pull any punches, and as you've heard, he was riotously funny. my year he had just turned 80 and there was constant speculation of when he might retire. one day he told us he didn't plan to leave the supreme court
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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 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 what t.m. was like. i'll then put more substantive questions to the panel and 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 we're fortunate tonight to have here two dozen other marshall clerks including if i may single out an article 3 colleague for judge
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douglas ginsburg of the d.c. circuit. we'll open the podium to former clerks who wish to share a brief thought or reflection or story about t.m. and to get the panel's take, and time permitting we'll take questions from the rest of the audience. so with that wind up, let's get started. i'm going to begin by asking each of our panelists what was your year like clerking for thurgood marshall. e len a let elena, let's start with you. >> i want to say what an honor it is to be here so thank you so much for inviting me for this really quite wonderful event. as i look around the room and i see so many judges from the 2nd circuit and former t.m. clerks and some of the justice's family members. it's really -- i think that the t.m. family, it really is a family, and it's -- it's wonderful to be here for this
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celebration. so it sounds like my year is like your year which is not surprising. >> i think that when you're a clerk at the supreme court for anybody, you feel as though you've won 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 -- he was not just a living legend by the time we began to clerk for him which was pretty late in his career. he was a living legend the moment he stepped onto the court which is not true of most justices. most justices -- >> present company excepted. >> no. you know, they are known for what they do on the court. sometimes they're not even known for that.
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but -- i mean, i have to think that he is -- if there's anybody else like him, i'm not thinking of it. somebody who had never served a day as a justice of the supreme court would have gone down in the history books. i think that he was the greatest, most influential lawyer of the 20th century and to walk into that set of offices and to realize that you were clerking for somebody who had that place in american life and not just a matter of the important things he had done. why was he the most important lawyer of the 20th century? it was because he did more justice for more people than any other lawyer did and to feel as though you had been picked somehow you had won this lottery, you got to spend a year with this incredible man was a very, very special thing.
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and then, as you say, it was the year that was not a moment when you felt disappointed. i mean, he was larger than life and whatever you thought about him going in, you thought more coming out. and the times i remember most are the times you remember most, paul, which was the times we spent in our office talking about cases and also talking about life and it was, he walked into his office and you would start with the cases and you would go over every case and you would talk about what to do about them and he would ask questions and you would give your views and then he would tell you sometimes that your views were wrong and i remember when you pressed too hard on something where he disagreed, he would point to the commission on the wall and make you get up out of your chair and go to the
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commission on the wall and read whose name was on it. and then the other thing he used to do on those occasions, you know sometimes when you -- my clerks do this to me a lot. they say, look, you have to do this. you have to vote this way or vote that way or write this opinion or write that. and he would say, there are only two things that i have to do. stay black and die. so you would have thought we would have learned to avoid that grammatical construction, you know? but we would talk about the cases and then at a certain point when we were done, he would segue to, as you say, storytelling and he was the greatest storyteller i've ever met in my life. he was just a raconteur.
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he had great stories to tell. it was the material. not a lot of people had the kind of stories that he had to tell about the changes that he had seen in the country, about his own legal career, his -- i mean, they were -- they were incredible stories of his -- especially of his years in the legal defense fund crisscrossing the jim crow south. but he was also just a phenomenal storyteller. he could -- and it was like make you weep, make you laugh, make you do both at the same time. there were times when we were really just like falling off our chairs we were laughing so hard and then you thought, why are we laughing so hard? this is a terrible story, you know? and he never repeated a story. this was the most remarkable thing to me. i don't know. it's become even more remarkable with the years. i feel like i repeat a story on wednesday that i told my clerks
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on monday. and i -- he never repeated a story. it just -- a new one would come out every single day, every single day. and the thing i most regret about my clerkship year was that not a one of us had a sense to just write them all down as soon as we left his office, because, you know, i can recapture maybe .1 of them. that seems to me a terrible loss, just the -- the way he spoke, the way he told stories, the kind of history that he had to tell. so it was an incredible time for me. it was a year that i think of as one of the luckiest things in my life that i had, that i got to spend it there with him. so, with that. >> okay. i enjoyed -- all the clerks we loved it.
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it was the most exciting time of our life. hopefully we don't repeat ourselves too often in saying how important the privilege of working with tm was. but it was pivotal in my life, my co-clerks, my colleagues, a wonderful experience and great great family. i clerked for tm in '75, '76. one year after watergate ended with the nixon resignation. it was a different time. when i was hired i applied to -- justice marshall was one of my long time heroes, i was thrilled. i was clerking for the time at skelly right. it was an old drinking buddy of thurgood's. i'm sure you'll hear thurgood has many drinking buddies, they tended to enjoy bourbon. if you were a drinking buddy, you more or less could do no wrong. and i got the call from marshall
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that said to me, if you are good enough for kelly right you're good enough for me. 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 don't matter, he was a humble man in the end and we were desperate to be good enough for him. it was an interesting year, november 12, 1975. justice douglas resigned from the court under pressure from his colleagues. gerald ford nominated john paul stevene stee stevens to the court. december 17, the senate control senate learned to -- moved to appoint justice tm and he served out his time. it was a different time, one
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could say. the biggest case of our year, buckley against faleo, money equal speech case, the death case which was near and dear to justice marshall's heart, greg against georgia. we wrote the sense which were fun and exciting. we wrote the most boring court opinions. chief justice burger and justice marshall were not close and somehow we got the dogs. i wrote a -- i drafted for the judge a opinion on the constitutionality of horses and bureau's act. they tended to be unanimous opinions but justice marshall cared about the draft and was no less demanding in the quality of
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majority of opinions that we got to write our draft as for the dissent. and we got to be members of the family. goody's here i'm elated to see him. he was summer assisted in the u.s. attorney's office for the southern district of new york for new york fans. we got to know sissy and john and be a part of the family. it was an absolute thrill. >> well, i join this distinguished panel that's giving thanks for that great opportunity and saying to chief judge castly and judge weslyn thank you. one of the highlights of my life was recommending allay that kagan for a courtship with justice marshall and going to visit and seeing what her time there was like. i want to tell you about my
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interview for the clerkship. i had one horrible colds where you have no voice and terrible thing are coming out of your nose. and i which would db called the clerk and gasped and said could it possibly postpone the interview. it was a long pause, you don't cancel an interview with judge marshall. so, i come with my box of tissues and the judge looks at me, i can't get a word out. he said my daddy had a cure for what you had. you take quinine and whiskey and you leave out the quinine. and he said do you want the job. i said thank goodness. yes. and they push me out of there i don't think nobody wanted him to get a cold. so, it was the era of many cases, there were about 183 that year. and when the cart would come down the hallway, the squeaky wheels and we'd have, you know,
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30 a day to do. i remember the first day it took me all day to understand what issue was, i thought there was 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 petitions. we wrote memos on every single petition, he was not in a sert pool and he was proud of that. and the comments was one of the ways in which we learned. we learned a lot about what he thought matter requested which battles he thought were worth fighting. just two other words, one teasing was the mood of the 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, or two other women clerks, and there are lots of names i'm not going to repeat. but, at one point, i don't know,
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one of my co-clerks had the brave moments to say to him and say why do you call us these names. he said you're going to get called worse. it was a really good lesson. my year was october i started. it was a presidential election, president reagan election 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 sense of oh my goodness the world has changed and they walked down the hall arm and arm. and it feels a little like that to other people at other times as well. my year also -- my year also had a women in the military case, my fellow clerks told me i wouldn't allowed to take part in it because i was biased. and abortion cases and many
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others. look, thurgood marshall was my hero my whole life. i went to law school because of the civil rights movement. for me, the chance to hear his stories and learn from him was incredible. the big surprise to me was an outstanding lawyer he was. and i think about him just about every day. >> i'm particularly honored to be here. it's wonderful to be the panel, my fellow law clerks. i want to go back to the call. by the time that i got my clerkship, tm did not interview applicants. so i was clerking in this building for judge feinberg who was another spectacular experience in my life and we were talking to the judge. my co-person and i were in the judge's chambers talking about
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the case. 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 rickey. and so i kind of like sheepishly, it was early in the term, i look at the judge like can i leave your presence the discussion of this important case to take a call from justice marshall. but he was wonderful, i can reassure you this will be fine. so i left the judge's chambers i went to my desk, picked up the phone and this gruff voice got on the phone and says, you still want a job. and i -- you know i said yes, i would love this job. and he said good, you got the job, see you in july.
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for a minute, i wondered if this was some friend of mine, but i didn't quite know how you go about figuring this out. it wasn't obvious, what do you do. so, you know, i figured it was okay, it was really. i waited a few days and called one of his current clerks. i didn't think i could ask if this is real but i said have you figured out when we are supposed to start. and she said like yes, come july 14th. i didn't meet him until a few weeks later. i had become a u.s. citizen only three years before that, the idea i was going to walk into this building and be in the presence of a figure of history was amazing.
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i mean, we don't in our lifetimes get the chance to meet a lot of people who really changed the course of our society. and -- 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, since it was mostly a one-way conversation, although every once in a while we actually did get to say something. and -- this was some significant things about the term, the court decided garcia versus san antonio public transit authority overrules national authorities, that was a very important case. it was also the year in which the number of death penalty cases skyrocketed. this was 1984, and in the first few months there were death penalty cases all time. we'd split them up and stay up essentially most of the night because these cases ended up
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getting -- reaching the court after midnight for execution scheduled for 2:00 a.m. we knew the papers were coming because the clerk's office would get copies of the papers filed if the district court in the afternoon, it would actually make it to the supreme court in the evening. it was a lot of these cases, we were up there in the middle of night most of the days. we were talking to the judge and said we didn't imagine it would be the many cases like this. and he said oh, don't worry about it, it'll come to an end pretty soon. and i looked at him, he said yes, you know there's an election in november. after the election you see a lot fewer of these cays. these are da's running for election. and it was powerful obviously and he was right. but there were cases after that but the volume went way down. and he cared enormously about each of these cases.
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in fact, these papers wouldn't get logged in until late at night and it was a protocol about it. the justice and sissy, his spectacular wife would disconnect their phone in the evening. but when there was a death penalty case coming we'd have to call sissy in the afternoon to tell her that we'd be calling late at night. and then she'd 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 sit in the chief justice clerk's office waiting for these papers to come. and justice wyden was a circuit justice in the case, and when the cases came in justice white went to ask each clerk how is your boss voting.
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and i said justice white i'm going to just run up the chambers and call the justice. and he said, what do you mean, like, don't you know how he's going to vote, he votes like stay all the executions. i said yeah, i know that but he wants us to call him and he wants him to describe to him the legal issue. if someone's going to be executed he wants to know something about the case and then he will tell us his vote. justice white was extremely annoyed. it was actually very late at night but he couldn't really argue, i had to call my boss. so i called him and i come back and he said well, how is your boss voting, and i said my boss is voting to stay the execution. so, and that was unusual, i was the only law clerk, all of us when we were there we were the only law clerks to place those
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calls. the thing i remember -- the cases were fascinating, it was an enormous privilege to work on them. but what i remember the most was like, my colleagues in this group were the stories. and -- and often in our year, the stories, he actually came to us. i shared an office with my colleague rick pel das and it was a huge armchair in that office. and in the afternoons the justice often stopped by and sat if that chair and started telling stories. we also came in on saturdays as did he, and sometimes saturday he'd come in and go straight to the chair where he'd sat and tell stories. it was a protoll kol protocol if
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that if other chambers stopped by when the judge was telling the story they had to stay for how ever long it took. it was an unwritten protocol. it was a particular saturday whereby the afternoon, i'd say there were 33 clerks, i'd say 25 or so were in the office, the office wasn't that big. most of them was sitting on the floor, laugh half of them were starving because they hadn't had lunch and the justice was still telling stories. the topic of that day was the strategy leading to brown versus board of education. what was in 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 constitution. the last thing he wanted was for this argument to come up too
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soon because he thought that without all the building cases the court was not going to overrule plesi. so what he explained to us, it was a strategy about how to keep this argument away from the court. and all the thinking that went into how not to answer a question if this question was ever asked directly in an oral argument in the early cases. it was amazing, i think given the way our society has evolved he had absolute control of how these arguments were presented. by any lawyer in any court around the country. in these issues how ever important there's going to be lot of different groups competing for foundation funding and someone's going to have an idea that they're going to do better by bringing the argument ahead of someone else. and by force of his intellect,
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personality and prestige he was able to control the way these were presented to the court over a period or decade and i thought that was the most amazing accomplishment and the biggest take away i got. >> it is such an honor to be here with the tm family. and i see so many faces, and i won't call any 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 my year with justice marshall was the best year of my life. and it started just the same as you. i got a call, no interview, you still want the job, want the job, yeah i want to job. 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
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this rough voice saying sheryl, he wanted me to write a statement for him and he dictated what he wanted me to write. and i was like i just got a call from thurgood marshall. he took us to lunch, i was the only woman, too, martha in the chambers. he took us to lunch in the fist week, the first week he said to me, when are you get married gal. i was gal the whole year. i was like why are you asking me that and nobody else, but he was very preoccupied with when i was getting married, and i was gal. for me, thurgood marshall went to college with my grandfather at lincoln university. not only were they colleagues they were fraternity brothers together. for me, it was like he was something of a surrogate grandfather, and i relished --
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for me the highlight -- i would -- in addition to the time clerk conferences with him i would often just go and sit with him and talk to him and he would tell stories about martin, martin carpenter was a lot like him, a crazy guy who was sort of a cut up in school and didn't get serious until later. and by the way, justice kagan i did keep a diary because paul had warned me about these stories. and i would run back to my desk after every session and write down stories, and we need to talk about what if anything i can do with this diary. one of the most profound stories he told me that year was how -- and this is in one of the biographies of tm, how langston hughes was the person who pierced his social consciousness. and i can get into that later.
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but the stories, and i recall these moments with tears, as you said would be streaming down your face and we could make you cry both with tragedy and comedy and it was like pure gold. i mean whether dark or funny he'd do that to you. everything from going down to the village with langston hughes to partying with a crowd to his stories to the south, gilbert king's excellent book, double 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 highlight for me that year in terms of the work, was i got to -- in addition to working on
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some very boring one meritime case, very boring majority opinions i got to help him craft a descent in a school desegregation case. 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 -- and this was his last year in the court, active year on the court. he was 82 and feeble and yet when i'd talk to him about some of these cases, he would just light up, you know, particularly early cases, a case from 1927, a case in which the china girl had to basically be a negro. in this moment i can feel a glimmer what it must have been like to be a lawyer at ldf. so that was very special for me. a signature moment, i'll never
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forget this, and scott you may remember this. toward the end of the term i'm toiling away on this dissent, he's having a conference with us about our work and when we're doing. he asked me gal, when you gone have that draft to me in the school case. i said well, i think i need about a month to get it together. and he paused and looked at me and said, i love you gal, but you got a week. and you know, it reminded me -- i learned so much in gilbert king's book about what that work ethic done. and damn if i didn't get it done in a week. 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'll manage if you just bear down and get it done. and, you know, the other thing about this year, and then i'll wrap it up.
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this was the only year on the court for justice marshall without brennan there. and, scott will remember this, he was the senior liberal justice and for the first time on the court, he's having to kind of assert a leadership role and this man who had been silent at the bench suddenly started talking. and he started like -- and he would ask these questions, not every single case but he'd ask these questions that were clearly designed to rattle the lawyers, just go for the jugular and it was delicious to watch. so that's my year. >> you know everybody was talking about their time with with justice marshall so i wanted to put in mind. it started the same way. he called me over the summer. i was still hanging around harvard law school was taking
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bar review courses and i was in the law view offices when the call came. i got on the phone, and he said so you still want a job. and i said exactly what rickey said. i said 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 this job, and i want this job. i don't know if you already have a job. and this went on you know, like 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.
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you know, and see you july 4th, whatever, july 14th. whatever it was. that was my destruction to justice marshall. >> let's turn now more substantively as justice marshall as a -- tm as you heard tended not to get the majority -- but he wrote lots and lots of --.\ and working on dissent with tm was really a staple with marshall. martha you have written about justice marshall dissent so i'm going to ask you to lead off this discussion. what was his he trying to accomplish? >> part of the phrase he used very often was pick your battles.
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that was a surprise to me because i had worked for a different judge who basically sometimes switched his vote to be able to dissent, he just loved dissenting. and this was a very different idea and it was very clear that judge had the recognition that he needed to work with his colleagues. that he also wanted to get the kind of attention that comes and not be dismissed as someone who always dissent and therefore not be paid attention to. he wanted to sustain the moral authority that comws from, you know, this is the moment to dissent. and this he was very explicit about, he said we won't have the energy if we're going to dissent on every one of these. that was his philosophy. on other cases this were lots and lots of cases where there were dissent. i really watch that pick up over the court of his time on the court. i read all the dissent to write
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my tribute to him when he retired from the court and it was very striking that he was bearing witnesses and committed to telling the truths about human beings and people's experiences, particularly people who in one way or another had been marginalized by society. and one example famous dissent is united states versus crass, 1973. the majority reject a due process challenge to a filing fee, someone seeking bankruptcy. it's like a butt of a joke. you don't have the money to pay for the bankruptcy. well, in any case the majority has a statement saying, look there's an installment plan that the court offers so people can pay the filing fee just spread out over a long time and it adds up to be weekly, not much more than two packs of cigarettes and a little less than a movie. so in his dissent, justice marshall says it is perfectly proper for judges to disagree about what the constitution
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requires, but it is disgraceful for an interpretation of the constitution to be premised on an unfounded assumption about how people live. and he went on to explain what that amount of money meant to a poor person. that is just an example of what he'd do over and over again in dissents and he would highlight, here's the details of actual life, and so just bear with me, i read all the dissent, he accented and identified the life of poor people, minors, native african-american, members of religious minorities, noncitizens, fathers, women, rock music fans, anyone who might seek an abortion, student. residents in puerto rico, members of racial minorities, protesters and people with long
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hair. and in each of these instances he described, you know, get behind the image. let's try to figure out who these people are and hear something about their lives. another was defending the rule of law and objecting to the abuses of power by government officials. and related to that particular sense about abused in his view by judges 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 and that case. so just one example, skinner, which i think was your year, skinner versus railroad executive association in which there was a challenge to mandatory good and urine testing for railroad workers and the majority upheld this mandatory testing.
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and in his dissent, justice marshall says we have to be careful when people talk about emergencies. the claim is there's an emergencies, there's dangers and therefore we have to give way. our usual concerns about searches and seizes and privacy and then he goes on in a paragraph, remember the japanese intern, remember the mccarthy era and remember the judges have things. there was a sense of history, barring witness to the history, reminding people of the history. and also really being very very concerned and here it's very explicit in one case and i'll 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 if the
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government expects the victims of the system to use the official channels to redress and protest then those channels better be available. >> i'll jump in. i had very much the same experience as martha did. and what struck me was what a historian he was and how he tried to use his dissent to unpack history. my year was times for him, a bit of an apocalyptic year. it was the '88 and '89 year. it wasn't clear what it was going to mean. the court heard a whole series of cases that threatened to upset some very important pillars of the law as he saw it, whether it's scrutiny for public action.
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race relations and contracting case and from time to time he was -- would allow himself to be heard if all that is happening could brown be far behind. he said that. in all fairness he quickly rolled that back and said i don't think that's going to happen, but he was concerned. he used his dissents in one of these cases, the richmond case. the scrutiny case. the case where the court adopted scrutiny for affirmative action. the case had come out of virginia. an affirmative action plan that have been upheld at supreme court level. tm thought it was outrageous that the court was imposing scrutiny and overturning this.
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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 capital of the confederacy recognizes a problem of race discrimination in its midst. this is our history year. your decision is list tore chis. >> my year -- was reinstated and i don't think there was an issue that was closer and more important to his heart than the death penalty. in 1973, furmen against georgia court invalidated the death penalty because it was improperly enforced.
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tm thought we were done, the death penalty's done. reinstating the death penalty as to the united states for airplane piracy and suddenly it was back. and -- and in march of '76, the death case, griffins against georgia was argued and justice marshall talked a lot about death. he told us stories, some of which are in the devil in the grove if you've read it, about defending people, mostly black men falsely accused of rape or murder. and if he won a life sentence, a guilt verdict and a life sentence, that was a win. he would not appeal a case in which a life sentence was imposed, because under the law at that time, if you appealed
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and won there could be a retry and the death imposed. and i just see him right now sitting in front of me shaking his head and saying i have seen so many incident negro men and boys sentenced to death. he always used the word negro, he was not a fan of black and 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. 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 was reinstated. i went back before today just to reread the dissent and i was somewhat surprised at its lack of passion.
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that is to say, justice marshall engaged on the levers of the argument. 35 states has enacted these laws, so he was arguing about deterrents 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 vast unfortunate reservoir of the innocence project and dna analysis that teaches us that it's true, that people with an undue -- undue number of occasions convicted wrongly.
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and had he written the decision in his heart which is, i, justice marshall know people are are wrongly convicted all the time and we can't sentence them to death. he didn't have a basis 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 in his career he regrets.
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jis tuesday justice powell said it was a mistake. so there could have been a 5-4 reverse outcome and it just didn't happen. >> i remember the reporter from "the washington post" who was covering the supreme court that year called it the most boring term in modern supreme court history. but, the case that i remember justice marshall felt most strongly about my year was given that that you've probably never have heard of, but it was a really important case for him. carter mathisen versus dickerson public schools. it was a case about a young girl, i think it was in kansas maybe, a young white girl who lived in a rural area and who was many, many, many miles away from the public school and the school district imposed a very
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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. i said indigency not a suspect class and education never held to be a fundamental right. so i think -- and there's a rational basis for this so i think, you know, it's -- the -- you have to rule for the school district, in that have to kind
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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 knucklehead and that was definitely a knucklehead kind of day. and you know, he just looked at me and he said what is this court set up to do except to make sure that children in this position can have the opportunity of a public education. thought it was incredible that anyone would think anything else. and we went back and forth and back and forth on that opinion. you know i would draft something and he would send it back, this is not good 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
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anything that was closer to his soul. and as i said it was an african-american child it was a white child in the middle of some big fair quite state. but the idea that the state was doing somebody to deprive a child of a -- of an education, the opportunity to better your life, he just couldn't imagine it. that also was a 7-2 case. >> all right. let's move on to another topic. everone 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 special interests to him. greg earlier you said lester clerk you want to lead us off? >> well, an issue that, you know obviously many of our dissent were on criminal justice and racial issues and the like.
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he was very interest 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. he offended the baltimore office -- the baltimore afro american was his client. they had a very close relationship, he loved newspaper man. when the brown decision came down the baltimore african-american headline read thurgood wins, and of course he did. and so, in the mid-'70s when i
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was clerking there were big libel cases. in '74 a couple years earlier gurts had been decided saying that the actual malice standard would apply not only to public officials and public figures there could be a category of limited purpose of public figures yet to be defined, to imclude 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 just sued her husband, he had sued her back for adultery and cruelty and all this stuff, the
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trial record of the judge had some powerful comments. according to testimony on behalf of the defendant, extramarital of the plaintiff were bizarre and would have made dr. fleud's hair curl. indications about the husband, he was guilty of bounding from one bed to another. so the divorce was granted, the judge said -- while he discounted some of this stuff, nonetheless 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 story saying this case had been -- because of the adultery. mary firestone sued in florida
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because any idiot would know you can't get alimony granted if the grounds for divorce were adultery so the lack of domestication must mean something else even though the lack of domestication wouldn't grounds for divorce in florida law. the case came to the supreme court where justice renquist for the court found that mary alice firestone was not a public figure, notwithstanding the 47 articles in the miami he rolled and the articles in the press that she held and the fact that she was a member of the sporting set in palm beach and was regularly covered. and justice marshall dissented saying she had -- what'd he say,
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that we must assume that it was by choice that mrs. firestone became an active member of these sporting set. then, the thing that caught his attention was the alternative suggestion from the court that although times report was certainly a rationale interpretation of an ambiguous court document that that was not a defense. and the justice thought that was outrageous and the -- get leeway and that was the essence of dissent. by basically he loved reporters, loved tallying around, he sort of grew up in the front page era ben hicks and charles mcarthur's play. >> let me broaden out the
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question, other than his views in law were there other -- >> so this was a mining statute. the required holder of certain miner claims to make yearly filings in order to keep the claims and the statute says these filings need to be made before december 31st. failure to comply with this requirement -- now as you may have already imagined these poor claimants filed their claim on december 31st and this case made it to the supreme court. the agency seems to have been confused about what it meant. apparently these claimants had got advice from employees of the bureau of land management
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saying any time during the year, including december 31 was fine. if the claims were filed by mail which these people had not done, as long as the claims were received by january 19, there was timely -- and there was no evidence it had been mailed any particular time as long as it was received by january. the justice also dissented indicating the agreement with much dissent. marshall wrote a statement saying the statute before december 31st it had to be interpreted that way even if congress might have meant or said by the end of the year maybe this wouldn't 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.
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and i think rick felt this most forcefully among us. and we had many discussions about this case. justice took this very seriously. we were in there in his private study many times talking about this, trying to persuade him to behave drop his position, which he actual felt very very strongly about. and he humored us for a while, but after a while, these discussions actually came to an abrupt end when the justice said with some annoyance in his voice, i was general of the united states. you can't run a government if some court decides before december 31st does not mean what it says just because it might lead to a hash result. even though constitutional decisions didn't make this obvious. from time to time you saw he has
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the sensibility of a government lawyer. in this case, i think in my mind illustrate that very clearly the fact that, that he came a across with a lot of vehemence. it would not have been crazy for him to join dissenting approach that justice steven, powell and brennan has taken but in that moment he was the general. >> and not just in that moment. i had a case like this called torres. it was a case where employment discrimination suit, group of latino employees who said their employer discriminated against him. for some reason the lawyer who filed an appeal did not include one of the names of the plaintiffs. you had a suit brought by four plaintiffs and the last wouldn't
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name, the last one was he going to lose his claim. this was similar. all of clerks go in and -- and his view was no the guy lost his claim because his name was not on the notice of appeal. and we argued with him and i remember him saying something like this. he said -- 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 from unpopular people is at least the judge will follow the rule. and you can't have a system where everyone decides whether the rule is good or bad, whether you want to follow it or not and the greatest protection lies in the rules and sometimes it means you're going to have a result like this and that's just too
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bad and it's a great value of having a system of rules. and that was so powerful to me. >> i had a similar experience. we had a case in which a lawyer had missed a deadline. and i did not -- but it was a death penalty case. so his formal insistence on the rule and having no patience for bad lawyering clashed with his death context. the person was going to lose their habeas whatever. and the exact same thing you can't do the. 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 articulating it today, now, i understand a
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little bit better. >> all right, let's turn now to tm as a storyteller. we've heard references to this. he talked a great deal about the battles he had fought in his career. what were the memorable stories and more important what were the point of these stories. rickey, you mentioned an exchange you had with tm. so can you lead us off. >> so, this is something talked about a lot and obviously it was an extremely dramatic moment in his life. so, i was working one afternoon and 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. 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 thousand pages and they were all in different books.
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so, i read all of this, takes most of the night and i learned a lot in the process. 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
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the third circuit. william hasty 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
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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. the committee also explained, this guy was obviously a member of the communist party, because
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these sittings were very orderly, unlike other sittings, that were not at 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.
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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 nomination to the floor without a committee 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 both the committee and 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,
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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
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actually quaint 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
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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
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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.
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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.
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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,
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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
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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 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.
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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.
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it's poignant for me to be working with him on something that was his life's work. 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
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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
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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
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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
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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.
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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. and you can draw a line between that in those cases. he could celebrate that. i think he would celebrate the
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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 elena, with you, and justice sotomayor. 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 can 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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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 --
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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.
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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.
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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 ]
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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.
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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 supreme court of the united states give their attention. >> landmark cases, c-span's special history series produced in cooperation with the national constitution center, exploring the human stories and constitutional dramas behind 12 historic supreme court decisions. >> earnest petitioner versus

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