Billington, librarian of Congress, defends release of the Marshall papers


WASHINGTON -- The librarian of Congress is strongly defended his actions in opening to the public the private papers of the late Justice Thurgood Marshall, saying that he acted on the explicit instructions of Mr. Marshall and that the papers would continue to be available.

"We remain confident that we are carrying out his exact intentions in opening access to his papers after his death on Jan. 24," James H. Billington said in a statement.

"Restricting or suspending access to the Marshall papers now would cast doubt on the library's ability to carry out the instructions of a deceased donor. In the public interest and in accordance with the expressed intent of one of our great jurists, we cannot in good faith suspend or otherwise restrict access to the papers as some have requested."

Since newspapers this week began publishing excerpts from Mr. Marshall's papers that detail some of the Supreme Court's internal deliberations during his 24 years as a justice, the library has been embroiled in an extraordinary and harsh public dispute with the Supreme Court and the Marshall family.

The Marshall family has said that despite the library's insistence on its understanding of a contract signed in October 1991, Mr. Marshall had never intended to have his papers released so soon after his death, while some of the justices with whom he served are still on the bench.

On Tuesday, Chief Justice William H. Rehnquist sent a sharply critical letter on behalf of a majority of the court to Mr. Billington, saying in effect that the library had betrayed Mr. Marshall's trust.

He warned that the "bad judgment" shown by Mr. Billington would discourage other justices from leaving their papers to the library -- a significant threat as a majority of justices choose the library as the repository of their papers.

Warren E. Burger, a retired chief justice, added his voice to the criticism yesterday, saying that Mr. Billington's decision to release the Marshall papers at this time was "an irresponsible and flagrant abuse" of the librarian's discretion.

Officials at both the court and the library said that Justice Byron R. White sent a separate letter to Mr. Billington that was not released publicly, disassociating himself from the complaint of the court majority. Mr. White, who is retiring at the end of this term, said he felt it was not clear that the library had done anything wrong. He already has made plans to donate his papers to the library.

Mr. Billington said in an interview that he was greatly troubled that Mr. Marshall's family and most members of the court were dismayed by the release of the papers and ensuing newspaper accounts of behind-the-scenes activities at the court.

He said he met yesterday with the chief justice at the Supreme Court and later with the Marshall family.

"I have genuine compassion for these people, but I have no doubt that my public responsibility and specific obligation does not give me any authority to suspend access," he said.

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