*Last week the Senate Judiciary Committee began the hearings which will determine whether President Obama’s Solicitor General Elena Kagan will become the next justice on the United States Supreme Court. However, on the first day, one would have thought the hearings were about former Supreme Court Justice Thurgood Marshall – the first African American to sit on the most powerful court in the nation.
Several Southern Republicans, led by Alabama’s Jeff Sessions, attempted to suggest that Kagan should not serve on the high court because of her association with Marshall. It appears that the conservatives detest Marshall labeling him a so-called “liberal activist judge” who did not apply a narrow interpretation of the U.S. Constitution but instead attempted to use the Constitution to bring about social change in America.
Since as a young lawyer, Kagan served as Marshal’s clerk, the conservative senators attempted to impart Marshall’s “liberal activism” to her. Kagan held her own during the sometimes testy hearings. But that is not the point.
The great Thurgood Marshall was indeed an “activist.” He was active in trying to end racism in this country and the second class citizenship it had imposed on the nation’s African American population. It was Marshall who led the team of Black lawyers who successfully argued the Brown v. Board of Education before the Supreme Court ending legally sanctioned public school segregation in this country. From a strictly legal perspective, Marshall probably did more than any other American to bring about an end to legal segregation and social oppression of Blacks in this country.
But Sessions and his conservative cohorts like Jon Lyle of Arizona appeared to be suggesting that Marshall was a bad person because of his activism or because he did not interpret the Constitution in the narrow, the-past-is-best manner favored by them. Are they suggesting that as a lawyer Marshall should not have used the Constitution to fight against racism and segregation?
And what bothered me most about the line of attack they chose against Kagan was that they did it without shame or apology. They appeared to have no problem with arguments which suggested that racism and segregation should have continued to exist rather than use the Constitution to battle evil or aid the downtrodden and those suffering under the weight of discrimination.
Meanwhile, I was actually pleased when Kagan responded to the attack saying that if confirmed to the Supreme Court she would not be Thurgood Marshall but Elena Kagan. However, she quickly added, “I love Thurgood Marshall. He did an enormous amount for me.” Yes, Thurgood Marshall did an “enormous amount” for the nation and Black people in particular.
When he nominated Marshall to the Supreme Court, President Lyndon Johnson said of his historic decision, “He is the right man and it’s the right time.” Johnson was right. The only people who can hate Marshall are racists, segregationists and reactionary conservatives. And after last week’s confirmation hearings, it is clear that there are some of those on the Senate Judiciary Committee.