Make Way for Tomorrow: How Justice Tom C. Clark Departed from and (Almost) Returned to the Supreme Court

Abstract

Make Way for Tomorrow: How Justice Tom C. Clark Departed from and (Almost) Returned to the Supreme Court Craig Alan Smith (bio) Introduction In the midst of the Great Depression, filmmaker Leo McCarey released Make Way for Tomorrow (1937), considered by Orson Welles “the saddest movie ever made.” The film depicts the hardships and sacrifices families faced and features an elderly couple who lost their home to a bank foreclosure, forcing them to depend on their adult children. Without adequate space for both parents, their children place them into two separate households, where their presence becomes a constant source of friction. In the end, plans are made to move the family matriarch to an elderly care facility, but the patriarch will be shipped west to live with distant relatives. On one level, the film portrays the parents’ serene dignity as they endure their children’s benign neglect. During their final, tragic goodbye, the parents realize they might never again see each other. Ultimately, they sacrificed their own happiness for their children’s sakes.1 The same year that McCarey released his poignant film, a Dallas-based lawyer, Tom Clark, got a job at the Justice Department in the Bureau of War Risk Litigation, and a freshman congressman, Lyndon B. Johnson, began his first term in the U.S. House. The private lives and public careers of these two Texans became intertwined over the ensuing three decades. Clark advanced through the Justice Department, serving as an assistant attorney general and later as President Harry S. Truman’s attorney general before Truman appointed him to the Supreme Court, and Johnson advanced to the U.S. Senate, the vice presidency, and, with the death of President John Kennedy, the presidency. No doubt, their Texas roots gave them an affinity for one another, and due to their long government [End Page 81] careers, their attachment increased over time. In spring 1967, their mutual devotion was displayed when Johnson nominated Clark’s son, Ramsey, to become attorney general, and nearly simultaneously Clark announced that he would leave the Supreme Court. Like the film that debuted when he arrived in Washington, D.C., Clark willingly sacrificed his professional achievements to make way for his son’s. However, in this instance, it was not Ramsey who proved insensitive to his father’s position, but rather Clark’s longtime friend, Lyndon B. Johnson, who demonstrated callous disregard in order to advance his own selfish political aims. Johnson did this first by forcing Clark off the Court; eighteen months later he contrived—unsuccessfully, as it turned out—to force Ramsey out of the Cabinet in order to return Clark to the Court. This is a tale about relationships, those between Johnson and Clark and between father and son, as well as the president’s relationship with the Court and how Johnson sought to manipulate it. Of course, Johnson’s dissembling methods have been widely recognized, including his calculation that Clark would vacate the Court if Ramsey became the attorney general. However, taped White House phone calls have revealed the extent of the president’s involvement and the real potential for failure. Therefore, this is also a tale of contingencies. Nothing was certain in Johnson’s calculations until it actually happened, and there were plenty of “near misses” in the process. In addition, the tapes reveal that a crucial phone call between Johnson and his acting attorney general was less concerned with convincing Tom Clark to make a decision than with persuading Ramsey to accept that decision. Ramsey was, after all, the only person who could have foiled the president’s plans. The seeming inevitability of what happened should not detract from the potential of it coming unraveled. Johnson did not have to elevate Ramsey Clark to be the attorney general, but he did, and his reasons appear obvious in retrospect. With Clark off the Court, Johnson could propel his civil rights agenda by naming the first African-American justice, Thurgood Marshall. This was not the first, nor would it be the last time that Johnson tried to orchestrate the selection of justices. In fact, his final effort, elevating Abe Fortas to chief justice, ended in colossal failure, and he...