Kagan hearing Marshall bashers can’t name one ‘activist’ ruling

TPM reports Tuesday that the three top Judiciary Committee Republicans who have been attacking Obama Supreme Court nominee Elena Kagan as an activist judge in the model of Thurgood Marshall could not list one such ruling by Marshall who, of course, is one of the most well-known and influential justices in American history.

“One would think that, to avoid any appearance of racial dog-whistling, the senators attacking Marshall’s record would be able to name the decisions or opinions with which they so vociferously disagreed… none of them could name a single case.”


“You could name them,” said Sen. Orrin Hatch (R-UT). Pressed, though, he could not. “I’m not going to go into that right now, I’d be happy to do that later,” Hatch demurred.

Sen. Tom Coburn (R-OK) claimed it wasn’t about Marshall’s jurisprudence at all, but rather about how Kagan, as his clerk, drove his work on the court behind the scenes. “I don’t think it’s cases, it’s that she wasn’t looking at a legal outcome, she was looking at a political philosophy: on which cases were accepted, and which weren’t and the direction of those cases,” Coburn said. “It isn’t about Justice Marshall. It’s about what she did in prepping him or advising him. It’s not about his cases.”

Ranking Member Jeff Sessions (R-AL) came closest to citing individual cases, though ultimately fell back on a generalization.

“Perhaps the most activist decision in history, or actually it wasn’t a majority decision, was Brennan and Marshall dissenting in every death penalty case because they said the death penalty violated the constitution,” Sessions claimed. “The only thing it violated was their idea of what good policy was. And they just dissented on every death penalty case. And said ‘based on my view that it’s cruel and unusual punishment.'”

By way of comparison, I asked him if yesterday’s Supreme Court decision, throwing out a handgun ban in Chicago, amounted to judicial activism.

Sessions insisted it did not. “It violated the Constitution,” Sessions said of the Chicago law.

The confirmation battle so far is progressing along the predictable lines carved out in the era that followed the contentious 1987 Robert Bork hearings, where Democrats lined up against Republicans to quash the Ronald Reagan nominee. Court Confirmation hearings have since become unadorned partisan battles. Questioners routinely showboat on ideological points while nominees have learned generally to be as unspecific in their answers as possible.

Early Tuesday Kagan dodged a question on the Bush v Gore case that decided the presidential election in 2000.

“It is an important question and a difficult question about how an election contest that at least arguably the political branches can’t find a way to resolve themselves, what should happen,” she said.

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