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.

Nominations get Nom'd!

Today I want to take a second to talk about a back burner issue that most people don't think too much about. It's one that, never the less, can affect policy and real people's lives and can cause a lot of consternation in the Senate. If you guessed Nominations (judicial and otherwise) you guessed right!

Really the only time Senate nomination hearings get any kind of real press coverage is when we're in the market for a new Supreme Court Justice. And rightfully so. If we're only going to pay attention to this important part of the Senate's job occasionally, that is certainly the occasion to pay attention. But I'm going to make the arguement that these sorts of nomination hearings are much more important than that.

Currently, the GOP caucus in the Senate is holding up a number of nomination hearings. The most recent to make any kind of news is that of Craig Baker for a position on the National Labor Relations Board. His nomination failed with 52 yea votes. Take a minute and look at that. The Senate has 100 members. So if Mr. Baker got 52, why did his nomination fail you ask? Because of the ever present Filibuster. In the world of the Senate right now, the GOP is threatening filibuster on every issue. Every nomination, piece of legislation, and every other bit of Senate business. Even that which they themselves propose. It's a tactic to make the Democrats look like they're weak and can't get anything done. Other recent examples are Erroll Southers and the Shelby snafu from the New York Times and Talking Points Memo respectively. Alabama Senator Richard Shelby blocked every nominee waiting for Senate hearings. He's effectively holding up the funcitoning of government all by himself. In fact, the only thing more effective at that right now is the Mid-Atlantic Snowpocalypse. This is the problem.

I am realizing now that this is more of a filibuster post than a nominee post, but forgive me for positing that the two issues are hopelessly tangled up.

There are several options for solving our filibuster problem and getting the country back to doing business. Honestly, I'd rather get rid of it. This allows the checks and balances of the system to work best. In that sort of system any percieved overreach by one party will be checked, eventually by the other when they come back into power. The good stuff will remain however. Things like Medicare, Medicaid, and Social Security which the GOP was against initially (and still are) will stay because they recognize the political popularity of these programs. As it currently stands it takes 60 votes in the Senate to pass a cloture motion. This is down from from the 67 originally mandated after 1975. I would argue that it needs to come down further if it should remain at all. Perhaps 55 or 53 votes would be better. But then again, at that point we're rapidly approaching cloture invocation at a simple majority of 50 which makes the provision essentially dead anyway.

I am sure I'll wax about this more later. It's an ongoing issue that will generate it's own news one way or the other. Likewise, I see it as an important question our Democracy is facing right now. I promise more coverage.