Updated June 28, 2010 @ 5:41 p.m.
Today's opening comments from conservative Republican members of the Senate Judiciary Committee for Elena Kagan's Supreme Court confirmation hearings shaped up to be a trial in absentia of Associate Justice Thurgood Marshall, the court's iconic civil rights Justice of the twentieth century. GOP members of the committee invoked Marshall's name 35 times today.
Republicans, led by Sen. Jeff Sessions of Alabama and Sen. John Cornyn of Texas, sought to discredit Kagan by denouncing Marshall, for whom Kagan clerked, and Marshall's support of equal rights, as emblematic of reckless judicial activism. [Newsweek]
Marshall is revered for his role as the lead lawyer in the landmark "separate but equal" Brown v. Board of Education case, which desegregated the nation’s schools. Marshall expressed the “living constitution” theory of jurisprudence—and if there is an unassailable monument to that theory, it is the Brown decision. As Sen. Sessions put it, Marshall was one of those justices who “don’t deny activism."
Sen. Orin Hatch (R-Utah) commented to Salt Lake Tribune's Thomas Burr after the hearings that he wasn't sure he would have voted to confirm Marshall, the first African-American to ever serve on the Supreme Court. (Marshall was an Associate Justice on the Supreme Court from 1967 to 1991.)
Sen. Dick Durbin (D-IL) reminded Senate Republicans exactly who and what they were labeling as an example of judicial activism:
"The results which Justice Marshall dedicated his life to broke down barriers of racial discrimination that had haunted America for generations. . . . And I might also add that his most famous case, Brown v. Board of Education—if that is an activist mind at work, we should be grateful as a nation that he argued before the Supreme Court, based on discrimination in this society and changed America for the better."Even as conservatives denounce activist judges, the Roberts Court, which has four of the five most conservative Supreme Court Justices of the last 50 years currently sitting at the bench, is considered a conservative activist court.
GOP members of the committee
invoking Marshall's name
Senator Franken's opening statement
"...Last year, I used my time during the [Sotomayor confirmation] hearings to highlight what I think is one of the most serious threats to our Constitution and to the rights it guarantees the American people: the activism of the Roberts Court.
I noted that for years, conservatives running for the Senate have made it almost an article of faith that they won't vote for activist judges who make law from the bench. And when asked to name a model justice, they would often cite Justice Thomas, who I noted has voted to overturn more federal laws than Justices Stevens and Breyer combined. In recent cycles, they would name Chief Justice Roberts.
Well, I think we established very convincingly during the Sotomayor hearings that there is such a thing as judicial activism. There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts Court, where it has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans. In the next few days, I want to continue this conversation. Because I think things have only gotten worse..."
Originally Posted May 11, 2010 @ 1:11 p.m.
Republican National Committee Chairman Michael Steele released a statement criticizing President Obama's Supreme Court nominee Elena Kagan for her support of Justice Thurgood Marshall's speech in which he said that the Constitution as originally conceived and drafted was "defective."
Had Mr. Steele taken the time to look into the context of Justice Marshall's statements he might have found that Marshall was referring to the Three-Fifths compromise in Article 1 Section 2, which counted slaves as three-fifths of a person. I don't know about Chairman Steele, but that seems to be a serious "defect" in the Constitution as originally conceived and drafted.
Justice Marshall also said the it took several constitutional amendments and a Civil War to right this wrong. Again, had Chairman Steele taken the time to look at the copy of the Constitution he carries in his pocket he could have read the 13th, 14th, and 15th Amendments to find out Marshall was correct.
The RNC then doubled down on Chairman Steel's statement when Doug Heye posted this at gop.com:
"In the same law review article, Kagan endorses the view that the Court's primary role is to "show special solicitude" for people a judge has empathy for.The GOP is on the record as opposing the finding by Supreme Court judges that the language of the constitution defines principles that American citizens have a general right of civil equality and right of privacy to be left alone without government intrusion into their personal or family decisions and lifestyle. Conservatives label judges who find such rights in the constitution as "activist judges." Yet, the activist conservative judges on the Roberts Court have ruled that corporations have the same rights as "We The People" individuals even though the Constitution includes no specific language granting such rights to corporate entities.
In the article about her former boss, Justice Thurgood Marshall, Kagan wrote:
For in Justice Marshall's view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion.
The majority of Americans want a justice who understands that the Founders intended the Court to serve as a neutral arbiter of disputes. The question for Kagan is whether she believes in a 'modern Constitution' shaped by activist judges pursuing personal political agendas or whether she believes in basing judicial decisions based on the Constitution and the rule of law."
Conservatives continue to press their so called strict constructionist constitutional argument, that Americans have no right that is not explicitly enumerated (written) in the Constitution. The right of privacy and right of equality are not explicitly enumerated (written) in the Constitution.
By arguing against the Supreme Court's right to privacy and right of equality findings, conservatives argue against the court's so called "activist" decisions on a broad range of rights that include child rearing, procreation, marriage, contraception, private and home schooling rights and civil rights of equality.One of the most memorable moments from Judge Sonia Sotomayor's confirmation hearings before the Senate Judiciary Committee was the aggressive line of questioning from Sen. (R-S.C.) Lindsey Graham. The South Carolina Republican demanded to know if President Obama's nominee for the Supreme Court had a "temperament problem" and even told Sotomayor that she had a reputation as a bully. At another point, the senator asked Sotomayor about her now infamous "wise Latina" comment and her tenure on the board of the Puerto Rican Legal Defense Fund, a legal arm for the Hispanic community, with the inference she is a Latina racist. It was all reflective of the line of questioning that Republicans on the Judiciary Committee pushed all day.
Finally, Senator Graham turned to another line of questioning by asking Judge Sotomayor, "Would you be considered a “strict constructionist” in your own mind?
... I'm asking ... Does the Constitution, as written, prohibit a legislative body at state or federal level from defining life or relating the rights of the unborn? ... Is there anything in the [Constitutional] document written about [a woman's right to choose] abortion?" Judge Sotomayor finally answered, "The word "abortion" is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process..." Cutting Judge Sotomayor off mid-answer Sen. Graham observed, "That's my concern. ...a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them through the electoral process. And a lot of us are concerned ... that unelected judges are very quick to change society in a way that's disturbing."Senator Graham's "strict constructionist" line of questioning exemplifies the GOP's indefensible positions on American's right to privacy and civil right of equality regardless of race, sex or religion. Because the Supreme Court's 1973 Roe v. Wade decision is based on the courts constitutional "right of privacy" finding in its Griswold v. Connecticut ruling, that overturned laws banning the purchase and use of contraceptives, conservatives always reference Roe to rally support to their "strict constructionist" constitutional argument that Americans have no right of privacy. This right of privacy issue is little more than a stalking horse that strict social conservatives use to attack the Supreme Court's so called liberal "activist" decisions on a broad range rights issues, including the right to purchase and use contraceptive products.
[The full exchange between Judge Sotomayor and Sen. Graham can be found in the transcript here.]
Conservatives argue that the framer's "original intent" can be found only in the exact words written in the constitution rather than an understanding and application of the principles that framers were attempting to define. Conservatives maintain that judges who make decisions based on "constitutional principles" carried in the words, rather than application of the exact words, written in the constitution are liberal activist judges who legislate from the bench.
Of course, the Constitution, as written, does not specifically prohibit a legislative body at the state or federal level from segregating schools as separate but equal "white only" and "black only" institutions, but the Supreme Court did find such laws unconstitutional in the court's 1954 Brown vs. Board of Education decision. In Brown the court found that the language of the constitution defines principles that segregation deprives segregated citizens of their equal protection under the "due process of law" as granted in the 14th Amendment.
Even the late Chief Justice William Rehnquist, who held "constructionist" views on constitutional interpretations, opposed Brown v. Board of Education as an unconstitutional decision when he was a Supreme Court clerk. Rehnquist also urged Barry Goldwater to argue that the 1964 Civil Rights Act was unconstitutional.Nor does the Constitution, as written, specifically prohibit a legislative body at the state or federal level from segregating drinking fountains as "white only" and "black only," from restricting marriage between people of different races, from making the use of birth control pills and condoms a criminal offense, from requiring parents to send their children to public rather than private schools or even from restricting access to the ballot box on election day through poll taxes, literacy tests and other "Jim Crow" related laws.
These and other such rights are not enumerated by specific wording in the U.S. Constitution, but they are rights that most Americans today believe are specifically guaranteed by the Constitution. Even so, Americans were denied these rights by many state and federal laws, particularly among southern states like Texas, until the 1950's and 1960's.Conservatives continue to maintain that it is wrong to appoint "activist" Supreme Court Judges who believe the constitution grants rights of privacy and civil equality not explicitly enumerated in word.
Conservatives, in fact, want conservative activist Supreme Court Judges who will overturn more than a hundred years of legal precedent to grant "corporations the rights of individual citizens" as the Roberts Court did this year when it greatly expanded the parameters of Citizens United v. FEC to make its pro-corporate ruling. The constitution does not explicitly enumerated that "corporations shall have rights identical to individual citizens," but Chief Justice Roberts and the other activist conservative Supreme Court Justices, none the less, ruled the constitution guarantees such rights to corporations over laws passed by congress.
Conservatives, in fact, want conservative activist Supreme Court Judges who will look for opportunities to turn the constitutional clock back to 1950; A time before Brown v. Board of Education and Griswold v. Connecticut.