Thurgood Marshall's Improbable But Brilliant Choice

Given the gap between the races that has now emerged from the shadows, today such a choice would be controversial, but few complained then about the selection of a white man to head the nation's most prominent law reform organization.
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With a new generation experiencing the bloody 1965 civil rights protests in the movie Selma and the hardening racial division over police treatment of African-Americans arising from the Michael Brown and Eric Garner cases, it's worth remembering that demonstrations and significant changes in the law go hand and hand.

The story of progress in American race relations usually starts with what happens in the streets, yet, at the same time, without lawyers, changes in social and legal behavior rarely occur. Though we credit Martin Luther King Jr. and those who put their lives on the line in the great Selma to Montgomery march -- as we should -- it is worth noting that those events, which led to the historic Voting Rights Act, took place because a lawyer, Jack Greenberg, then director of the NAACP Legal Defense Fund (LDF), persuaded a federal judge to permit King and his allies to go forward.

Greenberg, who turned 90 on December 22nd of 2014, was an improbable choice to lead the revolutionary legal assault on segregation. In 1961, Thurgood Marshall finally received the federal court of appeals nomination he had long desired, beginning a judicial career that would eventually make him the first black member of the Supreme Court. We look back on Marshall and that appointment as a pivotal moment in our nation's history, yet less well known but of significant importance was Marshall's choice of Greenberg -- a white Jewish man -- to succeed him at LDF.

The choice of Greenberg was a surprise to almost everyone except those of us who knew that Greenberg, the first white counselor at LDF, had been the chief architect of framing anti-discrimination policy while Marshall devoted himself to rallying the black community and enjoying the accolades that came with the victory in Brown v. Board of Education. During his 35 years with LDF, Greenberg either argued or directed the litigation of precedent-setting civil rights cases that desegregated classrooms, public facilities and workplaces across the nation. As a litigator, Greenberg argued 40 times before the Supreme Court.

Given the gap between the races that has now emerged from the shadows, today such a choice would be controversial, but few complained then about the selection of a white man to head the nation's most prominent law reform organization. A columnist for New York's leading black paper, the Amsterdam News, only mildly questioned Greenberg's appointment, but from black leaders there was a great deal of support. Despite his youth, Greenberg was well respected and he had argued one of the Brown cases before the Supreme Court in 1954.

One candidate for Marshall's job was, however, deeply disappointed. Robert L. Carter had been second in command at LDF before he had a falling out with Marshall and was shifted to the post of NAACP general counsel, where he had an impressive title but little staff and money. As lawyers, Carter, later a New York federal judge, and Greenberg, later a Columbia professor and dean, were both superb tacticians who also saw the larger picture of how change litigation, protest demonstrations and politics intersected. When faced with a challenge like the Brown and Garner cases, both would have immediately ordered the LDF staff to come up with an array of policy choices and changes.

The larger question is whether the selection of a white leader changed civil rights history. Greenberg and Carter shared similar formative experiences as members of the team Marshall assembled to challenge segregation. They were part of a legal culture that trusted class action litigation would bring progress; LDF had years of courtroom success under Greenberg but that hardly proves Carter's record would have been less impressive. If there was one place where Carter might have provided different leadership, it was to push for greater emphasis on attacking lack of black educational achievement in northern school systems. He was on record favoring a focus on educational equity rather than integration.

One thing is clear: Jack Greenberg's influence on the civil rights movement was enormous. As a leader, he attracted scores of talented law graduates many of whom later became prominent law professors, judges and public officials. His legal judgment was rarely challenged. And despite having been thrust into the turbulent world of Southern anti-segregation cases at a time when the physical risks were significant, he was fearless -- perhaps as a consequence of having served in the military and survived the invasion of Iwo Jima, where tens of thousands had died. The issues Greenberg confronted constituted the very core of civil rights legal change. He was the chief lawyer for Dr. King and his colleagues at the Southern Christian Leadership Conference. LDF represented thousands of sit in and other demonstrators against segregation and won the vast majority of their cases.

Greenberg called this work "trench warfare" and the phrase captures the day in day out tenacity that those seeking change need to recapture today to move a nation toward a law enforcement system that all races believe is dominated by fairness and equality. It remains to be seen, if the Brown and Garner protesters, and their legal advisors, will stay the course until they are able to produce the kind of lasting change that emerged from Selma in 1965.

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