Kagan Hearings: "Well I Wish I Was in Dixie, Hooray, Hooray!"

In Dixieland I’ll take my stand, to live and die in Dixie!

Every time Republicans open their mouths to relentlessly attack Justice Thurgood Marshall in the Elena Kagan hearings, especially Alabama’s Jeff Sessions –- even his suits are Confederate gray –- Dixie’s the soundtrack that most appropriately comes to mind. Elena Kagan is a stand-in. She had the great personal honor of clerking for Justice Marshall, an iconic civil rights hero and giant of American jurisprudence.

That was enough for Republicans to trash Marshall as an “activist” and “results-oriented” judge. Never mind that Justice Marshall has been dead for 17 years. These were their talking points, repeated over and over again, as if in repetition the distortion gains resonance and a certain truthiness. It is one more example of how Republicans apply the lessons of Joseph Goebbels, Hitler’s propaganda minister, who coined “the big lie” phrase: “If you tell a lie big enough and keep repeating it, people will eventually come to believe it.”

Here is one those phrases, taken out of context, to portray Marshall as somehow “activist” and outside the mainstream of American law: “Do what you think is right and let the law catch up.”



It’s easy for John Kyl and Jeff Sessions, or anyone for that matter, to make specious arguments in quoting a statement completely out of context. When Kagan pushed back noting that Marshall was speaking about Jim Crow laws, Senator Kyl practically jumped out of his shoes to say, “of course, of course, and I agree.” Then, after a spell to let the racism inference blow by, the “judicial activism” line of attack resumed.

Marshall was referring to the odious “separate but equal” Jim Crow laws of the 50s, a time of apartheid and enforced segregation in this country. Were it not for Justice Marshall as attorney of record, not judge, in Brown v. Board of Education leading the Court to strike down this racist neo-Confederate doctrine, an extremist form of judicial activism that denied an entire class of people their rights based on the color of their skin, it would certainly have stood for much longer as the law of the land, with untold consequences to the fabric of the nation.

Fronted by the buffoonish Michael Steele, the RNC went even further, asking “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?” The quotation from a Marshall speech is taken out of context by the RNC, that conveniently fails to mention it is in reference to slavery, which the original text of the Constitution codified and held slaves to be 3/5th of a person. This is what Justice Marshall said:

“I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia Convention. 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 freedoms and human rights, we hold as 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.

For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: “We the People.” When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. “We the People” included, in the words of the Framers, “the whole Number of free Persons.” On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years.

These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.”

It’s hard to argue with the empirical, factual basis of Justice Marshall’s dissertation. So when Oklahoma Senator Tom Coburn complains loudly about Kagan’s statement that in judging cases sometimes “original intent” is easily discerned and sometimes precedent necessarily governs a judge’s deliberation, what’s his beef? Does he want judges to consider the “original intent” that excluded slaves and women from “the whole Number of free Persons”? Does he want a return to a slave-based Southern economy, or will he and Sessions settle for “separate but equal?” These are the issues the Civil War was fought over.

The “judicial activism” attack launched against Justice Thurgood Marshall by Republicans is a straw man argument that recalls the worst days of Jim Crow “separate but equal” laws and cloaks a creeping, barely disguised racism that ought to be repulsive to the American people. Law professor Jonathan Turley noted that the idea of judicial activism is receding, particularly in the wake of the Citizens United decision -- genuine judicial activism of a 5-4 conservative majority on the Roberts Court which struck down decades of precedent and settled law, granting corporations the station of “person” under the First Amendment and lifting restrictions on corporate campaign spending.

The irony is not lost on liberals that those who complain most loudly of “judicial activism” are conservatives of all stripes who turn a blind eye to the extreme activism of the five ultra-conservative Justices on the Roberts Court, as long as the decisions fall the right way. Similarly, the paranoid right complains loudly about imaginary threats to their Second Amendment rights, when gun owners have never had it so good.

Senator Al Franken sketched Jeff Beauregard Sessions (above), the ranking member on the Judiciary Committee (that at one time voted down his appointment by Ronald Reagan for Alabama District judge because of his repugnant racist views), who had the stupefying audacity to compare the Citizens United decision to Brown v. Board of Education. He explained his “reasoning” in an interview with Talking Points Memo:

“Is it treating people equally to say you can go to this school because of the color of your skin and you can’t?” Sessions asked rhetorically. “We’ve now honestly concluded and fairly concluded that it violates the equal protection clause.”

How is that like Citizens United? “I think this Court, when they said 'Wait a minute! If you're talking about a precedent that says the government can deny the right to publish pamphlets, then we’ve got get rid of this one outlier case Austin -- 100 years of precedent -- and go back to what the Constitution [says].’ I don't think that's activism.”

And that, ladies and gentlemen, is how the prohibition on direct corporate expenditures to campaigns is exactly like forcing African-Americans to endure segregation, if you are Senator Jeff Sessions.

When pressed, Republicans could not cite a single example of Justice Marshall’s alleged “judicial activism.” In fact, as professor Turley noted, the charge has “thankfully, lost a lot of its traction. I think that the American people are beginning to understand that activism is very much in the eye of the beholder. That‘s not to say that there aren‘t judges and justices who make political decisions and go outside their legitimate role. But saying that someone is a judicial activist leads to more questions than answers.”

Of the Kagan hearings, Turley said, “this is a much tougher confirmation for Marshall than he faced when he first went onto the court. But it‘s really ironic because ... most of the cases they‘re thinking of were authored perhaps by Brennan and not Marshall. Marshall was the one in dissent and said, power, not reason is the new currency of this court. He objected to that type of thing [judicial activism].”

Contrary to his cynical portrayal by Republicans, Justice Marshall embodied the very best of American jurisprudence and, if anything, strengthened the original intent of the document by more closely aligning it with the fundamental founding principles that all men (and women) are “created equal” and endowed with certain inalienable rights, “that among these are life, liberty, and the pursuit of happiness.”

“Marshall was a great jurist who used his skills to move this country closer to being a more perfect union. As a lawyer and a justice, he protected us from activist judges and the cramped thinking of politicians who tried to keep our country in the muck. And he never forgot how the high court's rulings affect the least of us.

Justice Sandra Day O'Connor wrote: "His was the eye of a lawyer who had seen the deepest wounds in the social fabric and used law to help heal them. His was the ear of a counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them a voice."

But perhaps the most eloquent tribute to Marshall was expressed in two words. During some of the darkest times in our nation's history, when rights were denied, lives were threatened and African Americans knew they could not turn to their government for help, calls would go out to the NAACP. When the answer came, the words whispered in homes, churches and communities were enough to calm fears, lift despair, assuage anger and give enough hope to hold on a bit longer: "Thurgood's coming."

Thurgood came. And he came through. He taught us all what it means to love our country enough to work to make it a little better, a little stronger and a little closer to what it's supposed to be. That's not activism. That's patriotism.

And for that, Thurgood Marshall deserves respect and thanks, not sneers.”

A Salt Lake Tribune newspaper reporter caught up with Utah Senator Orrin Hatch to “ask an obvious question: Would Hatch have voted for Marshall?”

“Well, it’s hard to say,” Hatch said.

That just about sums up the Republican Party and its Teabagger mutations: odious and racist.