Elena Kagan and the Legacy of Thurgood Marshall

Tuesday, June 29, 2010

He nicknamed her "Shorty," and she refers to him as one of her "judicial heroes," but in their storied lives and careers, neither of them probably expected what transpired in yesterday's meeting of the Senate Judiciary Committee. As Solicitor General Elena Kagan sits on the precipice of becoming only the fourth woman in history to sit on the Supreme Court, the name of another barrier-breaking justice, Thurgood Marshall, may turn into her biggest liability.

With no history of judicial activity to examine, Republicans are focusing on the year Kagan spent clerking for Marshall in 1988, when she was 28-years-old. To the befuddlement of some, Republicans are decrying the civil rights pioneer as a "well-known liberal activist judge," as Senator Jefferson Beauregard Sessions III, the raking Republican on the Judiciary committee, described him. Senator Orrin Hatch (R-UT), told The Salt Lake Tribune that he wasn't sure whether he would vote to confirm Marshall if given the chance.

"Let's admire the man for the great things he did, but let's not walk over and wipe out the things that really didn't make sense as an obedient student of the practice of law," Hatch told MSNBC on Monday.

Conservatives say they are disturbed by what they call Marshall's philosophy of judicial activism, pointing to statements he made like, "You do what you think is right and let the law catch up." Marshall's name was brought up 35 times yesterday, in contrast to President Obama's, who was only mentioned 14 times.

David Wall Rice, friend of the show and professor of psychology at Morehouse College, has his own opinions about why Marshall's time on the bench has become such a lightening rod for his former protégé. He says the criticism of Marshall "reeks of institutional racism" when considering that the senators most critical of Marshall come from states like Alabama, Texas, and Arizona. Rice also gives his analysis of what he believes conservatives really mean when talking about judicial activism.

Comments [4]

Gregory from New York City

The hearings (and eventual confirmation) of Kagan to the SCUS represents a very interesting phenomenon in American political discourse - the re-imagining and re-invention of history marred in the light of today. I believe that Dr. Rice is right in his complaint that what Thurgood Marshall did as a lawyer and justice (as well as an HBCU grad) would have never been considered activism in the time in which these actions occurred. Since his death nearly 20 years ago, Marshall has never been slandered as much as he is being now through the co-opting of his legacy as an American hero into one in which he is an un-American renegade, reconstructing America to his own selfish whims.

The triumph of Justice Marshall's tenure on the bench was neither in his "activism" nor in his skin color. He was unquestionable and able and skillful legal scholar and wise judge. Hopefully, as in much of politics, this re-invention of Marshall's legacy will only be temporary and quickly dissolved before Election Day.

Jun. 30 2010 10:14 AM

Why are we surprised that current republican leaders would try to demonize Thurgood Marshall. His legal and judicial career was dedicated to giving equal rights to people of color. His fair minded arguments for ending segregated schools were based upon core values that most americans share. The republicans don't like him for this so they call him a judicial activitist and said he was against "state rights". Yet their conservative colleagues on the Supreme Court just eliminated an important "state right" to regulate handguns. Why is that okay but it was not okay to strike down state segregation laws.

Jun. 29 2010 11:58 PM

Part Two Comment...

So who might have been better guests? Well, two superior scholars on this subject would have been John McGinnis of Northwestern and Michael Rappaport of the University of San Diego. Who wrote this in the Wall Street Journal a few days ago, with respect to some recent Harvard comments by retired Justice Souter, but just as applicable to the Kagan/Marshall line of thinking:

"Justice ...Souter attacked what he regards as the 'simplistic' model of giving the Constitution a 'fair reading.' A judge, he said, must determine which of the conflicting constitutional values should become our fundamental law by taking account of new social realities. His remarks were a thinly veiled assault on those who, like Justices Antonin Scalia and Clarence Thomas, think the Constitution should be interpreted according to its original meaning.

"Justice Souter actually provided a primer on how not to be a judge. He made up a Constitution that never was to justify a kind of judicial power that was never intended.

"One of Justice Souter's two primary examples of the need for justices to avoid simplistic judging (i.e., originalism) is Brown v. Board of Education, the landmark 1954 case barring public school segregation. A central premise of Justice Souter's praise of Brown is that it was dictated not by the Constitution's original meaning but by new social realities.

"Thus, Justice Souter seems to excuse the court's reasoning in Plessy v. Ferguson (1898), the case that Brown overruled. Plessy had upheld a law requiring blacks and whites to sit in separate train carriages. He suggests that at the time the law 'fairly read' and the facts 'objectively viewed' were consistent with the decision.

"Wrong. Plessy was a dreadful decision precisely because it neglected the Constitution in favor of giving reign to what the justices saw as their own current social realities.

"The 14th Amendment, adopted in 1868, commanded then as it does today that no state shall abridge 'the privileges or immunities of citizens of the United States' or deny them 'the equal protection of the laws.' The Plessy court held that separate but physically equal carriages were reasonable in these circumstances, each race having the equal right to sit with its own race.


"At the time of Plessy, however, many leading thinkers thought that current social realities, such as the need to bring Southern states back into the union and a public perception of social differences among the races, required segregation. Thus Plessy provides an excellent example of Justice Souter's preferred method of constitutional interpretation, in which social realities trump the Constitution's original meaning."

Jun. 29 2010 11:59 AM

Part One Comment...

This story was nothing but a smear of Republicans in general and specifically the Republicans on the Senate Judiciary Committee.

You always know what to expect when a squib-writer goes out of his or her way to refer to "Jefferson Beauregrad Sessions III," as a way to make the wholly idiotic and weirdly ironic link between the current GOP and the Confederate States in the 1860's. Lincoln was a Republican. And, by the way, Jefferson Davis, and Gen. P.G.T. Beauregard were both top-of-the-class graduates of West Point.

To me, this entire story was an insult to my intelligence. The Takeaway's producers simply went to an all-purpose "friend of the program," instead of examining the real meaning of the Senate Republicans' challenges to the judicial philosophy of a Marshall.

Jun. 29 2010 11:50 AM

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