Just more than half a century ago, Thurgood Marshall, whom I later had the privilege of serving as a law clerk, was nominated by President Lyndon B. Johnson to be the first Black American to sit on the Supreme Court. The nomination triggered an outpouring of racist opposition from the southern members of the United States Senate. Yet the nomination survived the hatred, and Marshall was confirmed.
Last fall, President Joe Biden nominated Adeel Mangi, my friend and longtime partner, to be the first Muslim American to sit on a federal appeals court, the Third Circuit Court of Appeals. Just as with Marshall, Mangi’s nomination has triggered an outpouring of opposition grounded in hate, this time on the basis of religion, not race.
In most respects, Mangi is a natural appointee for the federal court. I have known Mangi as both a friend and colleague since I recruited him to join my law firm more than 25 years ago. I have never regretted that decision for a day. He is a brilliant and compassionate lawyer, a graduate of Oxford and Harvard. He has had a dazzling career as a commercial litigator. And like Marshall before him, he has been a steadfast fighter against bias. Joined by the Civil Rights Division of the Justice Department, he has successfully sued various communities for their discrimination against Muslims. He has filed ecumenical briefs on behalf of Christian, Jewish, and Islamic religious organizations defending the rights of so-called Dreamers. He was rated highly qualified by the American Bar Association. He would be a superb judge. But he is also a Muslim, and as Marshall experienced, being first isn’t easy.
When Marshall was nominated to be the first Black American to sit on the Court, the South was only slowly emerging from the era of segregated lunch counters; segregated schools still existed throughout much of the nation. Marshall faced a hostile Judiciary Committee controlled by a solid block of southern senators who had opposed all civil-rights laws. Their questioning of him consumed an unprecedented five days over the summer of 1967. As The Washington Post reported after the hearing’s first day, the senators “made clear … that they are finding it hard to swallow the nomination of Thurgood Marshall for the Supreme Court.”
As the hearing wore on, the racist nature of the senators’ objections became unavoidable. Senator James Eastland of Mississippi asked Marshall, “Are you prejudiced against white people in the South?” Although he had spent years in the South dodging white lynch mobs, Marshall said he did not bear white southerners ill will (except perhaps for one former courtroom opponent). Senator Strom Thurmond of South Carolina then asked questions that echoed the absurd literacy tests that southern states had used to disqualify Black people from voting, questions that even most constitutional-law professors could not answer from memory. For example: “Now, on the Fourteenth Amendment, what committee reported out the Fourteenth Amendment, and who were its members?” Not surprisingly, Marshall didn’t know the answer. Turns out Thurmond didn’t know the answer either, as was revealed when Senator Edward Kennedy of Massachusetts demanded that Thurmond answer the question himself “for the record to be complete.” Meanwhile, invoking the McCarthyite suggestion that Marshall was a Communist, Eastland referenced a book that Marshall had mentioned in a speech and asked whether he’d realized that the author was “an avowed Communist.” Marshall had not. This did not prevent Eastland from arguing later that Marshall showed Communist sympathies. Thanks to the persuasive powers of President Johnson, Marshall was nevertheless confirmed over the objections of the southern delegation.
Mangi has faced similar hateful bigotry, now from Republican senators who seem to believe (or at least cater to those who do) that any Muslim is a terrorist or terrorist sympathizer. Although Biden’s other judicial nominees have been notably progressive and commendably diverse, they have not generated the poisonous objections that greeted Mangi’s nomination. That is undoubtedly because of the extraordinary bias that today persists in our society against Muslim Americans, fueled by leaders at the highest levels of the Republican Party. In 2016, Donald Trump campaigned on a promise to ban all Muslim immigration, and one of his first acts as president was an attempt to implement by executive order what he called a “Muslim ban,” supposedly to protect against “foreign terrorist entry.”
With this backdrop, it is no surprise that Mangi’s nomination has led to a repetition of Thurgood Marshall’s disgraceful treatment. During Mangi’s confirmation hearings in January, Republican senators asked no questions about his unimpeachable legal qualifications. Instead, with voices rising in indignation, real or feigned, they suggested that Mangi must be a terrorist or a terrorist sympathizer. Senator John Kennedy of Louisiana actually asked Mangi whether “you celebrate 9/11.” Mangi’s answer (when he eventually got it out) bespoke his ties to his city and his country. “On 9/11, I was in New York. I saw what was happening. It was my city. I don’t think anyone can feel more strongly about what happened than someone who was there and saw with their own eyes smoke billowing from the towers. It was my city that was attacked.”
When it was Senator Ted Cruz of Texas’s turn, he suggested that Mangi was somehow a supporter of the Hamas attack on Israel. “Do you condemn the atrocities of the Hamas terrorists?” he asked. Senator Dick Durbin of Illinois, who was presiding, quickly got into a verbal brawl with Cruz over whether Mangi would even be allowed to answer the question. Eventually, Mangi got to give his response: “Those events of October 7 were a horror involving the death of innocent civilians. I have no patience for any attempts to justify or defend those events.” This continued to be the tenor of the Republican questioning, with Mangi actually forced to state that, yes, he is opposed to terrorism and genocide. “I will condemn without equivocation any terrorism, any terrorist, any act of terrorism, any defense of terrorism.” As for genocide, it is “absolutely horrific, and there could be nothing that is more contrary to everything that I stand for.”
What on earth is going on here? My friend is not a terrorist, a terrorist sympathizer, or an anti-Semite. Those Republican senators could not quote a single sentence ever uttered by Mangi, and could not cite a single act ever taken by Mangi, at any time in his life, that suggests that he somehow supports terror. Rather, the entire apparent pretext for their vitriol was Mangi’s presence for a time on an advisory board for the Center for Security, Race and Rights, an academic center at Rutgers University, New Jersey’s preeminent public university. The board met once a year to discuss academic issues that the center might pursue. But the Republican critics did not raise a single complaint about the advisory board’s actual work or Mangi’s work on the board. Instead, their alleged grievances centered on certain programming by the center—which Mangi had no role in or even knowledge of—that sometimes hosted controversial speakers regarding the Middle East. This is, sadly, no different from alleging that Justice Marshall was a Communist because he cited a book written by a Communist. It is pure McCarthyism, guilt by association.
Justice Marshall’s story had a happy ending. The ending of Mangi’s nomination is still to be written. He was voted out of committee by one vote, strictly along party lines. A Senate vote on the nomination is yet to be scheduled. Meanwhile, a right-wing group is running internet ads against him in Montana and Pennsylvania, two states whose Democratic senators face tough reelection fights. The ads are even more disgusting than the questioning Mangi received in the Senate. They call him “anti-Semite Adeel Mangi,” feature photos of the Twin Towers on fire, and suggest that he “hates Israel,” “hates America,” and “supports global terrorism.” That caricature is not the Adeel Mangi I have known and worked with for more than a quarter century.
Once confirmed, my mentor Thurgood Marshall just shrugged off his critics; he had spent his career (and kept his sanity) doing just that. I am sure that if my friend Adeel Mangi is confirmed on the merits, as he deserves, he will do the same.
