MARSHALL: End of an era Pick best person for job, court's only black says.

June 28, 1991|By Carl Schoettler and John Fairhall | Carl Schoettler and John Fairhall,Evening Sun Staff The Library staff contributed research to this story.

WASHINGTON -- Retiring Supreme Court Justice Thurgood Marshall said today race should not be the determining factor in President Bush's appointment of a successor.

"I think the most important factor is to pick the best person for the job," Marshall, the first and only black member of the court, said at a press conference.

Marshall said race shouldn't be used as an excuse in choosin hissuccessor, explaining: "I mean for picking the wrong Negro and saying, 'I'm picking him because he is a Negro.'"

L "My dad told me way back that you can't use race," he said.

Marshall repeatedly refused to answer questions about the increasingly conservative direction of the court, his views on Bush or the state of black Americans. In fending off some of the questions, he displayed his well-known sense of humor and feistiness.

Pressed to elaborate on yesterday's statement that he was retiring due to age and health considerations, he said: "I'm getting old and coming apart."

Marshall, who will be 83 on Tuesday, came into the conference room supported by a cane and assisted by aides, who guided him into a chair. The press conference didn't appear to be his idea, for he had no opening statement, declined to answer the most serious questions and had the look of a man wondering what all the fuss was about.

He did deny a New York Times account today that suggested anger and mounting frustration with the court's direction were behind his retirement decision. "That's a double-barreled lie," he said.

Asked how he would like to be remembered, Marshall said, "He did what he could with what he had."

"Everything has to come to an end sometime," he said. "And I have given 50 years to it and if that is not enough, God bless 'em."

Asked his retirement plans, he said curtly: "Sit on my rear end."

Though Marshall would not comment on his legacy, plenty of friends and legal observers had much to say, most of it praise. He was the court's most ardent and unwavering champion of the underdog, of minorities, of the poor and the helpless, the hopeless and the friendless.

"It's a whole new court now," said David Bogen, a constitutional law professor at the University of Maryland law school. "With [former Justice William] Brennan and Marshall gone the liberal heart has been cut out."

The Baltimore-born Marshall was the last, often embattled, survivor of the liberal majority of the Warren Court. President Lyndon B. Johnson appointed him in June 13, 1967. He was the first black on the court. No black American has ever held a higher office in the government of the United States.

"He was a towering figure," Bogen said.

Marshall's impact on the United States was assured before he joined the court, said Walter Camiat, a Washington labor lawyer who was alaw clerk with the justice during the court's 1984-85 term.

"He had had a career that had changed the nature of American society," Camiat said. "His whole career was dedicated to civil rights. He was the head of the whole legal movement that led to Brown vs. Board of Education."

Brown vs. Board of Education was the Supreme Court's 1954 desegregation decision that reversed the separate-but-equal doctrine that had sanctioned racial discrimination since the 19th century. Marshall was general counsel for the National Association for the Advancement of Colored People and he argued the case before the court.

"Brown vs. Board of Education was the culmination of decadeof litigation," Camiat said.

Few justices have had anything like his experience as a lawyebefore the court. Marshall argued 32 Supreme Court cases -- and won 29 of them. He fought many more civil rights cases in lesser courts all over the country, often in Maryland.

He supervised preparation of desegregation cases at the University of Maryland graduate schools and in public schools in various Maryland counties. He would then argue them in court.

He often lost in the state courts. He expected to. But he'd win in the Supreme Court.

And Marshall alone among the justices could say he had defended a man charged with murder, observed Juan Williams, the author of the civil rights chronicle "Eyes on the Prize," in a magazine profile.

Typically, Marshall left behind a searing dissent in a death penaltycase yesterday as he announced he was leaving the court.

The court had overruled two of its own precedents to say that victim impact statements and descriptions of the victim's character could be admitted as evidence in arguing a defendant should be sentenced to death.

The 6-3 majority, Marshall said, dispatched precedents "to their graves." The court had only recently held that victim impact statements violated Eighth Amendment provisions against cruel and unusual punishment. Such evidence might sway juries to death sentences based on the victim's suffering rather than the defendant's guilt, the court had said.

"Neither the law nor the facts [of the precedents] underwent any change," Marshall wrote in his dissent. "Only the personnel of this court did. . . .

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