Constance Baker Motley

As Biden mulls Supreme Court pick, Tomiko Brown-Nagin and civil right experts discuss first Black woman appointed as federal judge

Georgetown Law Professor Sheryll Cashin ’89 once asked her mentor, Thurgood Marshall, why he had passed over Constance Baker Motley to succeed him when he stepped down as head of the NAACP Legal Defense Fund in 1961.

“I asked [him] to his face why he chose Jack Greenberg as his successor,” recalled Cashin, who clerked for Marshall after he had become the first Black Supreme Court justice. “Quickly and a bit defensively, he said, ‘I just thought he was the best man for the job.’ It felt like a very long-practiced answer.”

While Cashin said she was always treated respectfully by Marshall, “I just think it was beyond his imagination then to put a woman in charge, and that’s basically what Motley said.” To Cashin, this was an example of how Motley, who eventually became the first Black woman appointed to the federal judiciary, was often held back as a woman of color.

Cashin’s comments came during a recent Harvard Library Book talk in which she and other civil rights experts discussed, “Civil Rights Queen: Constance Baker Motley and the Struggle for Equality,” a new book by Harvard Radcliffe Institute Dean Tomiko Brown-Nagin. The book chronicles how Motley, despite her eminent qualifications, was forced to overcome many similar obstacles on her way to historic achievements.

“I did want to write a story that inspires, even as it engages questions that are fundamental to our time, that reflect on debates in the civil rights historiography and anti-discrimination law,” Brown-Nagin said. “It’s both a life and an exploration of these broader issues.” Motley’s story seems particularly timely at a moment when President Biden has promised to nominate the first Black woman in U.S. history to the nation’s highest court, a coincidence that Brown-Nagin addressed in response to an audience question.

“There are things we can learn from Motley’s confirmation fight,” she said. “First of all, we can learn that it was a fight.” She noted that Motley’s political opponents cast aspersions on her character, downplayed her qualifications, and even called her a Communist.

“One can expect given the conventional racial script, that there will be those who mis-characterize the records of some people on [Biden’s] list; there is always the resort to ‘unqualified,’” she said. “I’m so pleased that in the case of the women whose names are on the short list, there are people who are eminently qualified — so that dog won’t hunt, as they say. I think we’re going to see someone nominated who will get a lot of support, but one has to run the gauntlet first.”

Harvard Professor Evelyn Brooks Higginbotham recalled a personal encounter with Motley, when they both attended the October 1975 conference of the Association for the Study of African-American Life and History, in Atlanta. By that time, Motley was a federal judge on the New York district court who was recognized for her legal work against segregation. “Her presence as the conference’s keynote speaker, at a racially integrated hotel in downtown Atlanta, exemplified the great changes in the civil rights and voting rights of Black people over the past decade … Seeing her and listening to her speak gave me a sense of affirmation as to the historian I sought to become. Her life validated the subject matter I pursued.”

Higginbotham recalled certain passages in the book that gave her the same excitement she felt in Georgia that day, including a section about Motley’s work to desegregate schools and her interactions with James Meredith, the first Black student accepted to the University of Mississippi. “I loved Brown-Nagin’s description of Motley as morphing from the role of lawyer to that of counselor and comforter during those times when her clients found themselves in a bad place emotionally. Motley was personally invested in them, just as she was invested in justice.”

Harvard Law School Professor Kenneth Mack ’91  pointed out that the popular characterization of Motley as “civil rights queen” had as much to do with her regal bearing as her accomplishments: She was well-dressed, reserved, and light-skinned at a time when white society valued the latter. Motley, he suggested, was less an outsider transforming the system than a figure who recognized the system’s rules, even while working for change.

He said that Motley, whose own background had some “homology” with the system’s rules, was more likely to succeed within it. “This might be less a case of the system exacting a price for admitting people, than the system admitting those who already believed that the price to be exacted is smaller than it otherwise might be. None of this downplays the immense difficulty of Motley’s position and the immense courage it took to do the things that she did.”

“You certainly have your finger on something,” Brown-Nagin said in response. “It has to be the case that there are only certain kinds of people who wind up in these posts. The exchange happens much earlier in terms of culture, norms, goals, objectives. Motley was ambitious, she was from this West Indian family where the father taught her to think of herself as superior. I happen to think that [this background] was useful to her when she went to Jackson, Mississippi.”

Still, she said, “I do think she’s transformational in the context of her lawyering. This is a Black woman who goes into courtrooms in the Deep South — and in the University of Georgia case, she has the judge giggling because she is showing so much intellectual command and is so brave. … She’s not meant to be doing these things, according to the conventions of America at that time.”

When Higginbotham mentioned that Motley did not consider herself a feminist, Brown-Nagin responded that there were different varieties of feminism: Pauli Murray and Shirley Chisholm may have been more outspoken feminists, but both were friends of Motley and supporters of her career. And while Motley’s political background made her hesitant to use the term feminist, her accomplishments said otherwise. “In terms of what she achieved, and the work she did on the court to enforce Title 7 of the Civil Rights Act, the anti-discrimination employment element — she didn’t spend time articulating her feminism. She just did it.”