In an effort to depict Supreme Court nominee Elena Kagan as an activist judge, Republican members of the Senate Judiciary Committee and Republican National Committee Chairman Michael Steele have made misleading and unwarranted attacks on Thurgood Marshall, for whom Kagan served as a clerk for one year. During the first day of hearings on the Kagan nomination, Marshall ’s name was mentioned 35 times, compared to only 14 for President Barack Obama.
In his opening statement, Senator Jon Kyl (R-Ariz.) said, “Justice Marshall’s judicial philosophy is not what I would consider to be mainstream.” He said Marshall, a legendary civil rights lawyer and the first African-American to sit on the Supreme Court, “might be the epitome of a resultsoriented judge.”
Alabama Senator Jeff Sessions, the ranking Republican on the Judiciary Committee who was rejected for a federal judgeship earlier in his career, claimed Marshall ’s legal view “does not comport with the proper role of a judge.” Those characterizations of Marshall, who was appointed to the Second Circuit Court of Appeals in 1961 by President John F. Kennedy and as U.S. Solicitor General in 1965 by President Lyndon B. Johnson, ignores his success as a lawyer and as a judge.
As chief attorney for the NAACP Legal Defense and Educational Fund, Marshall won 29 of the 32 cases he argued before the Supreme Court, including the 1954 landmark Brown v. Board of Education desegregation suit that outlawed separate but equal schools. As Solicitor General from 1965- 1967, he won 14 of the 19 cases he argued before the Court on behalf of the federal government. And while serving as an appeals court judge, none of Marshall ’s 98 majority decisions were ever reversed by the Supreme Court.
Johnson appointed Marshall to the Supreme Court in 1967, where he served until his retirement in 1991. He died two years later at the age of 84.
In a tribute to Marshall , Kagan wrote: “During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was ‘defective;’ only over the course of 200 years had the nation ‘attain [ed] the system of constitutional government, and its respect for…individual freedoms and human rights, we hold as fundamental today.”
In a raw display of historical ignorance, Michael Steele urged Senate Republicans to question Kagan’s “support for statements suggesting that the Constitution ‘as originally drafted and conceived, was defective.”
Even he had to later “clarify” his statement after it was pointed out to him that the original framers of the Constitution endorsed the concept of slavery, viewed African-Americans as property to be sold and bought and did not extend any rights to women. It took a Civil War and 27 amendments to form what the Founding Fathers called “a more perfect union.”
When the nation was celebrating the bicentennial of the United States Constitution in 1987, Thurgood Marshall had the courage to challenge the three-year celebration of the Founding Fathers’ achievements.
“I do not believe that the meaning of the Constitution was forever ‘fixed’ at the Philadelphia Convention,” he said on May 6, 1987 in a speech to the San Francisco Patent and Trademark Association. “Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound.
“To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedom and human rights, we hold fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.”
Rather than lavishly praising the drafters of the Constitution, Marshall said the credit belongs to “those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and strived to better them.”
Interestingly, opponents of Kagan have adopted the same guilt-by-association tactic used against Thurgood Marshall when he was first nominated to the Supreme Court. In that instance, political opponents tried to link him to Dr. Martin Luther King, Jr., who was not such a beloved figure in some circles at the time. Critics ignored tension between King, who believed in street protests, and the more conservative Marshall, who though such issues should be resolved in court. The Senate confirmed Marshall by a vote of 69-11.
Today, in an effort to derail Kagan’s nomination to the Supreme Court, Senate Republicans are trying to make her appointment a referendum on Thurgood Marshall, a legal and civil rights icon. As his son, Thurgood, Jr., noted in a column last Friday in the Washington Post, “Two former [ Marshall ] clerks, Ralph K. Winter and Douglas Ginsburg, were nominated to the federal bench by President Ronald Reagan. Those nominations did not prompt the kind of harsh innuendo to which we have been subjected to this week.”
Senator Richard Durbin (D-Ill) had it right when he stated, “ America is a better nation because of the tenacity, integrity and values of Thurgood Marshall.” He added, “If that is an activist mind at work, we should be grateful as a nation.”
George E. Curry, former editor-in-chief of Emerge magazine and the NNPA News Service, is a keynote speaker, moderator, and media coach. He can be reached through his Web site, www.georgecurry.com You can also follow him at www.twitter.com/currygeorge