I don't know about you, but after watching the confirmation hearings for Supreme Court nominee Elena Kagan, I was given the distinct impression that Thurgood Marshall was being subjected to a criminal trial, post-mortem, by Republicans on the Senate Judiciary Committee. The late great Supreme Court justice -- and the first African-American to sit on the high court -- was mentioned no fewer than 35 times the first day. Meanwhile, President Obama was mentioned only 14 times.
Elena Kagan has the nerve to actually admire such a man as Marshall, a civil rights giant who served as lead attorney in the Brown v. Board of Education case, and served as a jurist of high distinction. She even served as a law clerk to the man. How dare she! Didn't the White House people properly vet this candidate, so as to discover such disturbing, and potentially deal-breaking, information in her past?
Each time a Supreme Court nominee comes before the Senate, we should expect the same thing: one group of lawmakers will ask thoughtful, probing questions in an attempt to determine the candidate's suitability for the nation's top judicial body. But the other group, generally a contingent of dour white-male, pro-corporate, segregationist holdovers, are charged with the task of disrespecting any nominee that does not subscribe to their narrow and flawed worldview. And it is this second group -- which never passes up the opportunity to portray themselves as the twenty-first century reincarnation of Senators Strom Thurmond, Theodore Bilbo and James Eastland -- that tells you all you need to know about the nature and purpose of these hearings.
And these Republicans spent valuable time sullying the name of a man who accomplished more for this country than they could ever dream in a thousand lifetimes, and whose shoes they are unworthy to fill collectively, much less shine.
Harsh words, perhaps, but the unsolicited commentary those senators provided that day was harsh, and was said in the presence of Justice Marshall's son. The common theme was that liberal activist judges are evil, whatever "activist" means, with particular attention paid to Marshall's view that "you do what you think is right and let the law catch up." Sen. Jon Kyl (R-Ariz.) condemned Kagan for praising Marshall for believing that "it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government." Kyl also said that Marshall's judicial philosophy "is not what I would consider to be mainstream," and slammed Marshall for "his unshakable determination to protect the underdog."
South Carolina Sen. Lindsey Graham said of Kagan's purported "liberal" political leanings, "And if at the end of the day, you think more like Justice Marshall than Justice Rehnquist, so be it." Well, one would hope that Kagan does not think like the late Chief Justice Rehnquist, who once defended the "separate but equal" doctrine in Plessy v. Ferguson, and began his legal career working for Operation Eagle Eye, a Republican project to intimidate, harass and exclude black and Latino voters. He also fought the passage of a Phoenix, Arizona ordinance allowing blacks to enter stores and restaurants.
In his opening statement, Sen. Jeff Sessions (R-Ala.) reminded us that Elena Kagan "clerked for Judge [Abner] Mikva and Justice Marshall, each a well-known liberal activist judge." Yes, she clerked for a Jew and a black, and we know what happens when you get those Jewish and black civil rights-loving activist types together. Surely this thinly-veiled racist point was not missed by the Tea Party base for which Sessions' troubling message was intended, provided their mental capacity allowed them to catch it.
And Sessions is not one to be in judgment of anyone, yet he remains on the Senate Judiciary committee. This is the man who was rejected by the Senate for the federal bench because he opposed the Voting Rights Act. As a U.S. attorney in Alabama, he called a black assistant U.S. Attorney "boy" and warned him to "be careful what you say to white folks." He said the NAACP and the ACLU were "un-American and Communist inspired" groups that "forced civil rights down the throats of people." As a federal prosecutor, Sessions engaged in a voter-fraud witch-hunt against three Black civil rights workers, including a former aide to Dr. King. Moreover, during a 1981 KKK murder investigation, Sessions was heard by several colleagues commenting that he "used to think they [the Klan] were OK" until he found out some of them were "pot smokers."
Race was a fixture of the Sonia Sotomayor hearings, and apparently race is a big part of the Kagan hearings, even though Kagan is not a person of color. That's because the ultra-Right Republicans can't let it go. Race-baiting is their crack, if you will, and they refuse to get treatment for their affliction. The race card won them many an election. And though their base of good ol' boys is dwindling, they refuse to divest themselves of a strategy that is doomed to failure in light of changing demographics.
The Kagan hearings, or any Supreme Court hearings for that matter, are part of the war to win over the hearts and minds of America, to determine what kind of country we want this to become.
Conservatives will decry the rise of the liberal activist judges who legislate from the bench. But activism is in the eye of the beholder. I cannot think of any greater examples of activism than the gems promulgated by the current court, such as the Citizens United decision, which gives corporations free rein to influence the political process. And another great example is the court's new interpretation of Second Amendment, in which the language regarding "a well regulated militia" is misconstrued as a fundamental right of personal gun ownership under federal and state and local law. This, in a nation with 30,000 gun murders a year.
In the end, the real question is whether we want the Dred Scott court and the Plessy court, or the court that gave us the Brown decision. It's for the people with power or its power for the people. And that's what these hearings are all about.
David A. Love is the Executive Editor of BlackCommentator.com, and a contributor to The Progressive Media Project and theGrio. He is based in Philadelphia, and is a graduate of Harvard College and the University of Pennsylvania Law School. His blog is davidalove.com.
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