What I Have Learned from the Senate Judiciary Hearings
I never knew that Thurgood Marshall was an activist judge. Foolishly, I thought he was somebody to be admired and even emulated. It is clear that in 1954, when he argued Brown versus the Board of Education he did not share the mainstream view that separate could be equal. It took Senator Jeff Sessions (Republican — Alabama) to point out the craziness that was Thurgood Marshall.
Dana Milbank noted: Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a “well-known activist.” Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view “does not comport with the proper role of a judge or judicial method.” Sen. John Cornyn (R-Tex.) pronounced Marshall “a judicial activist” with a “judicial philosophy that concerns me.”
From TPM:
Looks like Senate Judiciary Republicans have at least one unified talking point today: Justice Thurgood Marshall, the first African-American to ever serve on the Supreme Court, was an “activist judge.” As Elena Kagan kept on her listening face, multiple senators slammed both Marshall’s judicial philosophy and her service as his clerk in the late 1980s.
Ranking member Sen. Jeff Sessions (R-AL) criticized Kagan for having “associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge’s preferred social policies,” citing Marshall as his son, Thurgood Marshall Jr., sat in the audience of the Judiciary Committee hearings.
In an example of how much the GOP focused on Marshall, his name came up 35 times. President Obama’s name was mentioned just 14 times today.
Thankfully, the Democrats had a thoughtful response. From TP:
These attacks on Justice Marshall sparked what was easily the most eloquent moment of the hearing, Sen. Dick Durbin (D-IL) reminding Senate Republicans exactly who they were going after:
On at least three or four occasions I have been disappointed by my Republican colleagues warning us that you just might follow in the tradition of Justice Thurgood Marshall. . . . Let me say for the record, America is a better nation because of the tenacity, integrity and values of Thurgood Marshall. Some may dismiss Justice Marshall’s pioneering work on civil rights as an example of “empathy”—that somehow as a black man that had been a victim of discrimination, his feelings became part of his passionate life’s work—and I say “thank God.” 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.
Senator Tom Coburn of Oklahoma was happy to let us know that we had more freedom 30 years ago that we have today.
From TP:
Sen. Amy Klobuchar (D-MN) then responded to Coburn by pointing out that Coburn’s idea of a more “free” society was when women had fewer rights:
KLOBUCHAR: I was really interested and listening to Senator Coburn. … He was actually asking you, just now, back 30 years ago if you thought that we were more free. … But I was thinking back 30 years ago, was 1980. … And then I was thinking, were we really more free, if you were a woman in 1980? Do you know, solicitor general, how many women were on the U.S. Supreme Court in 1980?
KAGAN: I guess zero.
KLOBUCHAR: That would be correct. There were no women on the Supreme Court. Do you know how many women were sitting up here 30 years ago in 1980?
KAGAN: It was very striking when Senator Feinstein said she was one of two women. I thought, how amazing. So, how many?
KLOBUCHAR: There were no women on the Judiciary Committee until after the Anita Hill hearings in 1991. Do you know how many women were in the United States Senate in 1980, 30 years ago?
KAGAN: I’m stumped again.
KLOBUCHAR: No women were in the United States Senate. There had been women in the senate before, and then in 1981, Senator Kassebaum joined the Senate. So, as I think about that question about if people were more free in 1980, I think it’s all in the eyes of the beholder.
(Klobuchar corrected herself later to note that Kassebaum was already serving in the Senate at the time, having been sworn in in 1978.)