Analysis: Republicans use first black justice as example of judicial activism

Published June 29, 2010

| Associated Press

WASHINGTON (AP) — Dead nearly two decades, the late Justice Thurgood Marshall looms improbably over Elena Kagan's nomination to the Supreme Court, a resurrection in liberal robes courtesy of Republicans eager to cast President Barack Obama's selection as a judicial activist-in-waiting.

"Justice Marshall is a historic figure in many respects," Sen. Jon Kyl, R-Ariz., said Monday as Kagan's confirmation hearings opened, referring to the lawyer who won a landmark Supreme Court case outlawing school segregation, then went on to become the nation's first black justice.

"And it is not surprising that as one of his clerks she held him in the highest regard," Kyl continued. "Justice Marshall's judicial philosophy, however, is not what I would consider to be mainstream."

Democrats reacted as though they had been handed a political gift, but Kyl was one of several Republicans who referred to Marshall in similar terms. Sens. Jeff Sessions of Alabama, Chuck Grassley of Iowa and John Cornyn of Texas did likewise on a long day of speechmaking by members of the Senate Judiciary Committee.

Over and over, they quoted Marshall's description of his judicial philosophy as evidence of his one-time clerk's intentions, without citing examples of cases in which his rulings misapplied the Constitution to achieve a desired result.

"Your Marshall memos indicate a liberal and seemingly outcome-based approach to your legal analysis," Grassley said to Kagan, whose papers from her year as a clerk are part of the hearing record. "You have admitted that your upbringing steeped you in deeply held liberal principles. You should know — or we should know whether, as you've said, you have, quote, retained them fairly intact to this date, end of quote."

And when Kyl raised the issue on Tuesday in questioning Kagan, she readily defended Marshall while at the same time making clear that she — not he — now seeks a seat on the court.

"I love Justice Marshall. He did an enormous amount for me. But if you confirm me to this position, you will get Justice Kagan. You won't get Justice Marshall, and that's an important thing," she said.

At its core, the debate over Marshall has less to do with the past than it does with the future.

Sen. Lindsey Graham, R-S.C., said what others have doubtless concluded, that adding one member to the court's liberal bloc while another departs is unlikely to alter the overall balance of the court. Obama named Kagan to succeed Justice John Paul Stevens, who is retiring.

At the same time, several Democrats said they view the current court, led by Chief Justice John Roberts, as an activist institution that routinely sides with corporations at the expense of individuals.

Sen. Patrick Leahy, D-Vt., the chairman of the committee, told reporters that a ruling last winter giving corporations (and unions) the right to spend freely on political activity was "probably the most blatant example of a conservative activist court."

Back inside the committee room, Thurgood Marshall Jr. was witness to the debate over his father's legacy.

"It's a function of living a life of consequence on the Supreme Court," the son said of the father in an interview.

But Marshall the younger also offered a rebuttal to the core Republican charge, saying his father "was never reversed in 90-some opinions" as a judge on the 2nd U.S. Circuit Court of Appeals.

"If a senator wants to stand up and say they want to oppose desegregating the schools," they have that right, Marshall said.

Republicans didn't do that, and Cornyn, for one, said explicitly he didn't consider the landmark school desegregation ruling to be an example of judicial activism.

Democrats, seemingly delighted at the Republicans' choice of targets, were content not to notice.

Referring to the school desegregation case, Sen. Richard Durbin, D-Ill., said, "If that is an activist mind at work, we should be grateful as a nation that he argued before this Supreme Court, based on discrimination in this society, and changed America for the better."

Also, Durbin said, "Thurgood Marshall argued 32 cases before the Supreme Court of the United States and won 29 of them, earning more victories in the Supreme Court than any other individual."

Sen. Ben Cardin, D-Md., also quoted Marshall approvingly, referring to a speech the then-justice delivered in 1987:

"I do not believe the meaning of the Constitution was forever fixed at the Philadelphia convention. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, a momentous social transformation to attain the system of constitutional government and its respect for the individual freedoms and human rights we hold as fundamental today."

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EDITOR'S NOTE — David Espo covers Congress and politics for The Associated Press.

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