Thurgood Marshall Take 2

Let's take a look at this Thurgood Marshall as judicial activist meme that's coming out of the Kagan nomination a little closer. As has been noted, Marshall was a Supreme Court Justice for twenty-four years so he has no dearth of opinions to be looked at. First, a little Marshall history.

Marshall began arguing before the Supreme Court in 1940, the same year he became the Chief Council of the NAACP. During this part of Marshall's life he argued numerous cases including Chambers v. Florida that upheld confessions obtained under torture violate the 14th Amendment in an 8-0 decision, Smith v. Allwright that ruled that segregated political primaries were illegal in an 8-1 decision, and of course Brown v. Board of Education that struck down separate but equal as established by Plessy v. Ferguson (1896). That was a 7-1 decision. These are all race based cases and all of them are nowhere near split courts.

After Justice Marshall's appointment to the Supreme Court in 1967 he sat for many other important cases and expanded his reach outside of the race based cases he mainly worked with while with the NAACP. In Furman v. Georgia, a 5-4 decision, Justice Marshall sided with the court that the death penalty was cruel and unusual and when, four years later, the court reversed itself in Gregg v. Georgia that the death penalty was acceptable under the constitution he dissented in every other death penalty case he heard. In Teamsters v. Terry he held union members seeking backpay have a right to a jury trial.

If this case history describes an "activist judge" so be it. But if that's the case then Justices Brown, Fuller, Field, Gray, Shiras, White, Peckham, Brennan, Douglas, Stewart, Blackmun, O'Connor, Scalia, Kennedy, etc. are all activist judges too. Clearly, Justice Marshall has a liberal judicial record. That isn't under dispute. He's viewed by pretty much everyone in that context. But I think this simple  overview shows that there was nothing activisty about Justice Marshall

Thurgood Marshall was an Activist Loser!

At least according to Senator Jeff Sessions of Alabama. He's the leading Republican on the Senate Judiciary Committee that is currently holding hearings for Elena Kagan's nomination to the SCOTUS. Since Senator Sessions is the leading Republican it's important to note that he's both heading up the Republican opposition to Kagan's nomination (psst, it's all for show) and would be the chair of the Judiciary Committee if the Republicans do the unlikely and wrest control of the Senate from Democrats in November. And he thinks that Thurgood Marshall was bad for the country. As Rachel Maddow pointed out last night on her show he is one of a very small group of people who are pretty universally considered to be the gods of the Civil Rights Movement in this country. Though I guess that should come as no surprise for the man who has, among other gems, called a white civil rights attorney a traitor to his race.

To more important topics at hand, the Kagan nomination. I think I've already mentioned earlier that I don't like her as the nominee. I'm sure she's great as Solicitor General and an all around nice person. She even got good reviews from the campus veterans groups while she was the Dean at Harvard Law. But she has the (in my opinion fatal) flaw that all nominees have for the last twenty years or so. She's more conservative than the justice she's been nominated to replace! We've gone way downhill as far as SCOTUS is concerned since the Warren and Burger courts. Also worth noting, the last four Chief Justices have been chosen by Republican presidents. And we won't get to pick another one for years because Chief Justice Roberts is only 55. In short, Democratic presidents in general need to show some backbone and nominate some true liberals for the court. Yes, doing this means being willing to spend some political capital on the nomination fight rather than some pet legislation. But there is hardly a more important responsibility granted to the Executive. Most justices serve for twenty years or more. The choice of who a president nominates can have lasting effects on the country for years after a president has served their term and indeed beyond their lifetimes. As an example, Ronald Reagan nominated still serving Justices Kennedy and Scalia as well as recent retiree Sandra Day O'Connor. Justice Stevens is being replaced only now and he was nominated by President Ford. Chief Justice Rehnquist was a Nixon nomination from 1971! 

In short, is Elena Kagan qualified? Totally. More than qualified. Is she the right choice for the country right now when we already have a court handing down 5-4 decisions like Citizens United v. FEC? Definitely not.

I'm Back!

I must apologize for being so quiet as things have continued happening around the world. I have been moving. Across the country if you must know. And it takes a bit to get plugged back into the world. Let along knowing enough to begin making commentary again. Just as a summary:

The BP Oil Spill is continuing after more than a month. We've tried the containment dome, the cut and cap, the junk shot, the top kill, booms of all kinds, fire, and what I'm calling the Pull and Pray (which is just what it sounds like). Now it looks like we're just waiting until the relief wells can be finished. Near the end of August. And this is all as we are heading into what looks to be a very dangerous 2010 Hurricane Season.

Thailand has been facing civil unrest for several months which culminated in a shoot to kill order from the military government in Thailand and the deaths of several of the redshirt protesters. See here.

We are still moving forward with the primaries in many states in preparation for the November elections. Now former Pennsylvania Senator and former Republican Arlen Specter is over and done with. Elections took place in Alabama today as well as Mississippi and New Mexico with South Carolina and some others coming in next week.

Also, at the beginning of my move the President nominated Elena Kagan to fill Justice John Paul Stevens' seat on the court. She is the current US Solicitor General. Some of you probably want to know what I think of her and the truth is that I haven't had the time to do a thorough search and read up enough. But my gut instinct from what I've heard from national media sources is that she isn't liberal enough. She doesn't come close to the "liberal lion" that some have called Stevens. And anything less than Stevens moves the court to the right which is as unacceptable now under the Obama Administration as it was when he nominated Justice Sotomayor. I'm not saying she's not qualified although some have quibbled over her lack of time on the bench. Just that she's to middle of the road for my (admittedly lefty) tastes.

So. Let's start with BP and the oil spill. I shouldn't really call it a spill. I should be calling it a geyser, or a volcano, or a gush, or a spilling. Or something to indicate that there's really no end to this thing. But leaving that aside, it's a wonder to me that we've done as little as we have to try and head off another problem like this at the pass. The President has put 33 exploratory rigs on hold and we're no longer issuing new leases. We've discovered the amazing lack of sense in what is laughably called the Mineral Management Service or MMS. But there are still literally thousands of other rigs in the Gulf and all of the United States pumping away. I understand that taking America's oil production to zero barrels a day may potentially increase the price of gas at the pump. That's a price I am willing, and I hope you are willing, to pay to protect America's environmental treasures. We've already destroyed the Louisiana Marshlands. Do we want to kill the California Kelp Forests and other such aquamarine jewels as well?

BP has made it as clear as any multi-national corporation can (which is not very) that they are willing to pay. While trying to get off the hook for paying. But still. Even if they were willing to write a big, fat, multi-trillion dollar check to pay for everything that doesn't fix it. Everyone is acting like, as long as BP pays then it's fine. Eh. Who cares! And oil spill here or there. No biggie. They could write a check for the US GDP and it wouldn't automagically clean up the environmentally sensitive areas that have already been or will be destroyed. Nothing but time can undo that. And a lot of times even time can't. Just take a look at Prince William Sound 20+ years after the Exxon Valdez. This subject has been beat to death. And so I will stop now with full knowledge that I will be back on this horse sooner rather than later. The only thing we, the people, can do is to keep ourselves informed and pressure our elected government to do right by us, and take care of BP.