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Marshall says race should not control his replacement

By GREG HENDERSON

WASHINGTON -- Retiring Supreme Court Justice Thurgood Marshall said Friday that as a black American he still is 'not free,' but declared that President Bush should not use race as the only factor in nominating his successor.

Marshall, who turns 83 next week, also said he is retiring because 'I'm getting old and coming apart,' and has no specific future plans other than to 'sit on my rear end.'

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The only black ever to sit on the high court, Marshall acknowledged race will play a part in Bush's decision, but said the 'important factor is to pick the best person for the job, not on the basis of race one way or the other.'

'I would agree with him,' Bush later told reporters aboard Air Force One while en route to Kennebunkport, Maine, for a long weekend. 'I want to go for excellence. I want to keep in mind the representation of all Amrericans.'

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Bush said he had narrowed a list of prospective replacements to a 'handful of names' and expected to make an announcement in 'a very few days.'

Marshall warned against using skin color as an 'excuse' to put the wrong jurist in the seat he held for 24 terms.

'I mean (an excuse) for picking the wrong Negro and saying, 'I'm picking him because he is a Negro.' I am opposed to that,' Marshall said during a rare news conference at the Supreme Court. 'There's no difference between a white snake and black snake; they'll both bite. So I don't want to use race as an excuse.'

Asked about whom might succeed him, the justice said, 'It's none of my business,' and he refused to speculate on whom the president might nominate. 'I don't know what his (President Bush's) political philosophy is,' he said, and added, 'I don't know whether he knows or doesn't know' his own philosophy.

Displaying free-wheeling wit and refusing to be pinned down on questions he did not want to answer, Marshall also insisted he would play no part in the selection process. 'I'm not trying to run the country,' he said. 'Let the country run itself.'

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Marshall announced his retirement Thursday citing age and health in a two-paragraph letter to Bush. He refused Friday to elaborate in detail.

'What's wrong with me? I'm old,' joked Marshall. 'I'm getting old and coming apart.'

'My doctor and my wife and I have been discussing this for the past six months or more. And we all eventually agreed, all three of us, that this is it, and this is it,' said Marshall, who sat and held a cane throughout the 30-minute discussion with reporters.

Alternately humorous, obstinate and combative, Marshall displayed traits that made him a noted civil rights lawyer and solicitor general before becoming a justice.

Marshall refused to discuss court actions or his colleagues on the bench, which has gone from a liberal-leaning majority in his early years to a solid conservative front now.

As a lawyer for the NAACP, Marshall successfully argued the landmark 1954 Brown vs. Board of Education school desegregation ruling before the high court.

Asked Friday about the state of blacks in America, Marshall replied: 'Well, I'm not free.'

'All I know is that years ago, when I was a youngster, a Pullman porter told me that he had been in every city in this country, he was sure, and he had never been in any city in the United States where he had to put his hand up in front of his face to find out he was a Negro. I agree with him.'

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Asked if he thought the conditions for blacks had improved since he joined the high court, he said, 'That's a question that has no relation at all. So are the white people better off since I sat on the court.'

He also said: 'One thing this court is for is human rights.'

He called a New York Times report that he was retiring out of frustration and anger with a growing conservative majority on the court 'a double-barreled lie.'

But he also joked about the increasing likelihood that in recent court terms he would be on the losing side of major court battles. 'I only picked those (law clerks) that liked to write dissenting opinions,' he said.

Marshall twice rebuked reporters during the news conference, once for referring to his retirement as a 'resignation' and the other for asking a question about 'black people.'

'I am not a black people -- I'm an Afro-American,' Marshall said.

Asked how he would like to be remembered, Marshall responded: 'That he did what he could with what he had.'

During the Reagan administration, he is said to have told his clerks, 'If I die while Reagan is in office, prop me up and keep on voting.'

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Friday, Marshall said: 'Everything has to come to an end some time.'

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