Fifty-Five Years After Justice Marshall’s Confirmation, We Need More Jurists Like Him on the Bench

Courts Resources 09.1.22

When conservative lawyer Michael D. Jaffe testified in opposition to Justice Thurgood Marshall’s confirmation to the Supreme Court in 1967, he argued that Marshall’s focus on civil rights law should make him ineligible for a seat on the Court.

“Without at all going into the merits of Mr. Marshall’s struggle for civil rights,” Jaffe said, “it seems right that this narrow focus of his activities and interests should disqualify him from serving in a position where he would be required to serve all of the people.”

A majority of senators, perhaps in recognition that civil rights work does serve all people, were not persuaded. Fifty-five years ago this week, by a vote of 69-11, Marshall became the first Black Supreme Court justice in U.S. history — signaling to the nation that diverse lawyers who are committed to civil and human rights can and should serve at all levels of the federal judiciary.

Of course, it would take nearly 55 more years, until April 7, 2022, for the Senate to finally confirm a Black woman — Justice Ketanji Brown Jackson — to our nation’s highest court. On April 8, speaking in the White House Rose Garden, Justice Jackson acknowledged and honored the civil rights giants, including Justice Marshall, who paved the way for her to make history.

“I am also ever buoyed by the leadership of generations past who helped to light the way — Dr. Martin Luther King Jr., Justice Thurgood Marshall, and my personal heroine Judge Constance Baker Motley,” Justice Jackson said. “They and so many others did the heavy lifting that made this day possible.”

Justice Jackson’s confirmation earlier this year was historic not just because she is now the first Black woman on the U.S. Supreme Court. She is also the first former public defender to ever serve on the Court, and the first justice with any significant criminal defense experience since the retirement of Justice Marshall more than 30 years ago. And that matters — because 55 years after Marshall’s confirmation, our federal courts are still in need of more diverse jurists who are committed to civil and human rights and the advancement of equal justice.

President Biden is making progress — not just with Justice Jackson’s ascension to the Supreme Court, but with the confirmation of exceptional and diverse civil rights lawyers like Myrna Pérez to the Second Circuit and Holly Thomas to the Ninth Circuit. Awaiting consideration today by the full Senate are more judicial nominees who would bring vital demographic and professional experience — including civil and human rights experience — to the judiciary:

NANCY ABUDU, nominated to the U.S. Court of Appeals for the Eleventh Circuit.

  • After spending years as a civil rights litigator at the ACLU’s voting rights project and the ACLU of Florida, Abudu joined the Southern Poverty Law Center to help establish its Voting Rights Practice Group. She will be the first Black woman on the Eleventh Circuit and the first Black person ever to serve in a Georgia seat on this court.

RACHEL BLOOMEKATZ, nominated to the U.S. Court of Appeals for the Sixth Circuit.

  • Throughout her career advancing equal justice, she has defended the freedom to vote and access to the ballot box. Bloomekatz has also protected the rights of consumers and challenged dangerous policies that would allow teachers without sufficient training to carry firearms.

NUSRAT CHOUDHURY, nominated to the U.S. District Court for the Eastern District of New York.

  • In her work at the ACLU, Choudhury has challenged modern-day debtors’ prisons, racially discriminatory policies, and unlawful surveillance of religious minorities. She will be the first Muslim woman and first Bangladeshi American ever to serve as a lifetime federal judge.

JESSICA CLARKE, nominated to the U.S. District Court for the Southern District of New York. 

  • Clarke has served as chief of the civil rights bureau of the New York State Office of the Attorney General since 2019. She has vast experience investigating and litigating housing discrimination cases as a trial attorney in the Housing and Civil Enforcement Section of the Civil Rights Division of the U.S. Department of Justice.

ARIANNA FREEMAN, nominated to the U.S. Court of Appeals for the Third Circuit.

  • At the Federal Community Defender Office of the Eastern District of Pennsylvania, Freeman has handled hundreds of cases on behalf of clients who could not afford counsel, helping to defend and protect the rights of many people. She will be the first woman of color and first Black woman to ever serve on this court.

BRAD GARCIA, nominated to the U.S. Court of Appeals for the D.C. Circuit.

  • Garcia has protected the constitutional rights of people involved in the criminal-legal system, defended abortion access, and protected immigrants from unlawful deportation. He will be the first Latino judge to serve on the D.C. Circuit.

DALE HO, nominated to the U.S. District Court for the Southern District of New York.

  • Ho has protected civil rights by defending the freedom to vote as director of the voting rights project at the ACLU. He successfully challenged the Trump administration’s efforts to add a citizenship question to the census and opposed its efforts to exclude unauthorized immigrants from calculations used to determine representation in Congress.

NATASHA MERLE, nominated to the U.S. District Court for the Eastern District of New York.

  • As the deputy director of litigation at the NAACP Legal Defense and Educational Fund, Inc., Merle has led critical civil rights lawsuits on the freedom to vote and discriminatory sentencing practices. She has also served as a federal public defender, fighting bias in our criminal-legal system and defending clients who could not afford an attorney.

JUDGE HERNÁN VERA, nominated to the U.S. District Court for the Central District of California.

  • Before serving as a judge on the Los Angeles County Superior Court, Judge Vera served for 12 years at Public Counsel, the largest pro bono law firm in the nation, where he created an impact litigation department for economic injustice. Judge Vera also served as an attorney at the Mexican American Legal Defense and Educational Fund.

We are also excited about more recent nominees who are committed to protecting and advancing equal justice for all. This includes Julie Rikelman, who would be the first immigrant woman and the first Jewish woman to serve on the First Circuit; Cindy Chung, who would be the first Asian American to serve on the Third Circuit; and Araceli Martínez-Olguín, who would be the second Latina to serve on the U.S. District Court for the Northern District of California. We look forward to their swift consideration by the Senate Judiciary Committee.

Fifty-five years after Justice Marshall’s confirmation, his incredible legacy must not be forgotten. This includes arguing Brown v. Board of Education — which ended legalized apartheid in American schools — in front of the U.S. Supreme Court and issuing powerfully important dissents as a Supreme Court justice recognizing the widespread and harmful impacts of racism in our nation.

Now, the Senate must confirm more judges like him: demographically and professionally diverse, highly qualified, and committed to civil and human rights. Because the truth is this: Despite what some detractors thought about Justice Marshall’s legal background, civil rights experience is exactly what we need on our federal courts. Senators today must view this kind of experience defending the rights of all people as an asset to the federal judiciary.

As senators return from summer recess next week, their priority must be confirming the Justice Marshalls of the future and building a federal bench that delivers equal justice for all.