kagan hearings

A World Without Progressive Judges

Conservatives who whine about liberal “judicial activism” are often dissing the very judges and decisions that make most of us proud to be Americans. See, for example, Republican Senators’ criticisms of civil rights hero Thurgood Marshall during the Kagan hearings.

Cartoonist Mark Fiore’s new video reveals some of the great decisions that conservatives seem happy to pit themselves against. It makes you wonder: what would our country be like today if not for the great progressive legal decisions of history?

 

PFAW

Julian Bond: In the Kagan Hearings, Echoes of the Past

Last month, Republican senators turned to a surprising strategy in their questioning of Supreme Court nominee (and now Supreme Court Justice) Elena Kagan. They attempted to smear Kagan by connecting her with a figure who most of us don’t see as a liability—the revered civil rights leader Justice Thurgood Marshall. The attacks Senators Charles Grassley, Jon Kyl, and Jeff Sessions levied at Marshall rang a bell for former NAACP member and People For board member Julian Bond. Bond writes in today’s Des Moines Register:

These attacks didn't surprise me because they're completely consistent with a party locked in the past, echoing the anti-civil rights message of those who opposed Justice Marshall's own confirmation in 1967.

Grassley, Sessions and their fellow Republicans roasted Solicitor General Kagan with the same attacks used against Marshall four decades earlier. Then, the late Sen. Sam Ervin of North Carolina complained about the likelihood that Marshall would be "a judicial activist," which he defined as someone "unable to exercise the self-restraint which is inherent in the judicial process when it is properly understood and applied, and who is willing to add to the Constitution things that are not in it and to subtract from the Constitution things which are in it."

When Ervin spoke of adding rights to the Constitution, there was no doubt that he was referring to the court's ruling in Brown v. Board of Education, which he had fervently opposed. Ervin went on to join with 10 other southern Senators in voting against Marshall's confirmation.

Faced with the inevitable backlash for their attacks, today’s senators have tried to equivocate by saying they have no problem with Justice Marshall, just with his “judicial philosophy.” As Bond makes clear, that’s not a new—or convincing--argument.

For a refresher, take a look at the compilation of Marshall attacks Talking Points Memo put together after the first day of the Kagan hearings:
 

PFAW

The Substance of the Kagan Hearings

Many viewed it as a foregone conclusion that Elena Kagan’s Supreme Court confirmation hearings would lack any real discussion of law and the Constitution. In fact, People For’s Marge Baker argues in a new memo, Kagan’s hearings were more substantial than any in recent memory. Kagan politely but decisively refused to buy into empty conservative rhetoric, and laid out a strong view of the limited, but not simple, role of the courts in a democracy:

Kagan said a great deal about how judges should approach Congressional statutes and argued for significant deference to legislators and reluctance to strike down federal law. Even when invited to take on straw men (like Senator Coburn’s fruits-and-vegetables line of questioning) she went to great lengths to describe the latitude that Congress should be allowed, even pointing to Justice Holmes, approvingly noting that he “hated a lot of the legislation that was being enacted during those years, but insisted that if the people wanted it, it was their right to go hang themselves.”

In applying laws passed by Congress, she emphasized looking at Congressional intent and examining the Congressional record—approaches very much at issue in cases like Ledbetter and Citizens United. Her testimony made an unmistakable argument both for the importance of judges’ responsibility to uphold the Constitution and for the limits of what judges should do.

We’ve put together a collection of some of the most interesting moments from the hearings. Here, Kagan takes down Chief Justice Roberts’ flawed judge-as-umpire analogy:

Click here to watch our top ten favorite clips from the hearings.
 

PFAW

Alexander Hamilton's Plug for Kagan

For all the right wing talk of “strict constructionism" and the "original intent of the Founders," it’s important to bear in mind that the Founders themselves actually did envision the Constitution evolving to apply to new circumstances. Alexander Hamilton (who died 206 years ago today) put it this way:

Constitutions should consist only of general provisions; the reason is that they must necessarily be permanent, and that they cannot calculate for the possible change of things.

Elena Kagan echoed that sentiment in her hearing:

 

 

For more words of wisdom from Kagan’s testimony, see PFAW’s Top Ten Highlights of the Kagan Hearings.

PFAW

Who in the World is Thurgood Marshall??

It isn't just Republican senators on the Senate Judiciary Committee who are attacking Thurgood Marshall, the NAACP attorney and American hero whose brilliant long-term litigation strategy led to Brown v. Board of Education, the end of Jim Crow, and eventually to a seat on the Supreme Court. In fact, if they and their compatriots had their way, the next generation might not even know who Thurgood Marshall was. As our affiliate PFAW Foundation has reported, Justice Marshall just barely survived the recent ideological purge of Texas textbooks, despite urgings from Religious Right "advisors" that he be erased from history.

What we're seeing at the Kagan hearings is just part of a larger far right campaign to vilify a man who symbolized the best of America.

PFAW

Star of the Kagan Hearings is the Corporate Court

Democratic Senators used the opportunity of Elena Kagan’s Supreme Court confirmation hearings today focus attention on nine people who were not in the room. The Senators called the Roberts Court out for some of its more outrageous decisions as they began to reframe the debate on the role of the Court and the Constitution. Central to the discussion was the Court’s decision in Citizens United v. FEC, in which it overturned a century of settled law to allow corporations to spend unlimited amounts of money to influence elections.

Russ Feingold of Wisconsin, was one of the chief designers of the campaign finance rules that the Supreme Court knocked down in Citizens United. He said:

[W]hen a decision like the one handed down earlier this year by a 5-4 vote in the Citizens United case uproots longstanding precedent and undermines our democratic system, the public’s confidence in the Court can’t help but be shaken. I was very disappointed in that decision, and in the Court for reaching out to change the landscape of election law in a drastic and wholly unnecessary way. By acting in such an extreme and unjustified manner, the Court badly damaged its own integrity. By elevating the rights of corporations over the rights of people, the Court damaged our democracy.

Sheldon Whitehouse of Rhode Island took on the Court’s pro-corporate leanings by brilliantly co-opting Chief Justice Roberts’ famous baseball metaphor:

Only last week, the Rent-A-Center decision concluded that an employee who challenges as unconscionable an arbitration demand must have that challenge decided by the arbitrator. And the Citizens United decision -- yet another 5-4 decision -- created a constitutional right for corporations to spend unlimited money in American elections, opening our democratic system to a massive new threat of corruption and corporate control.
There is an unmistakable pattern. For all the talk of umpires and balls and strikes at the Supreme Court, the strike zone for corporations gets better every day.

Ted Kaufman of Delaware told Kagan, “I plan to spend the bulk of my time asking you about the Court’s business cases, based on my concern about its apparent bias.”

The Court’s decision last fall in the Citizens United case, which several of my colleagues have mentioned, is the latest example of the Court’s pro-corporate bent. The majority opinion in that case should put the nail in the coffin of claims that “judicial activism” is a sin committed by judges of only one political ideology.

What makes the Citizens United decision particularly troubling is that it is at odds with what some of the Court’s most recently confirmed members said during their confirmation hearings. We heard a great deal then about their deep respect for existing precedent. Now, however, that respect seems to vanish whenever it interferes with a desired pro-business outcome.

Al Franken of Minnesota explained the real impact of campaign finance laws:

Now, you’ve heard a lot about this decision already today, but I want to come at it from a slightly different angle.
There is no doubt: the Roberts Court’s disregard for a century of federal law—and decades of the Supreme Court’s own rulings—is wrong. It’s shocking. And it’s torn a gaping hole in our election laws.

So of course I’m worried about how Citizens United is going to change our elections.

But I am more worried about how this decision is going to affect our communities—and our ability to run those communities without a permission slip from big business.

Citizens United isn’t just about election law. It isn’t just about campaign finance.

It’s about seat belts. It’s about clean air and clean water. It’s about energy policy and the rights of workers and investors. It’s about health care. It’s about our ability to pass laws that protect the American people even if it hurts the corporate bottom line.

As Justice Stevens said, it’s about our “need to prevent corporations from undermining self-government.

And finally, Sen. Richard Durbin of Illinois summed up the retort to any GOP Senator complaining about “judicial activism”:

We've heard from those across the aisle about their support for traditionalism, and their opposition to judicial activism. I have two words for them: Citizens United.

We’re looking forward to hearing a lot more about Citizens United and the Corporate Court as the hearings progress
 

PFAW

Sessions' Dubious Sources

In Sen. Session’s opening remarks at the Kagan hearings, he lambasted her for association with so-called “activist” judges—including revered civil rights defender Thurgood Marshall, the widely respected Abner Mikva, and the Republicans' new, desperate talking point, Israeli judge Arahon Barak.

Sessions’ choice of words was interesting:

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.

Let’s take a look at who has been describing Judge Barak as the “most activist judge in the world”:

On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak “may be the worst judge on the planet, the most activist,” and argued that Ms. Kagan’s admiration for him is “disqualifying in and of itself.”

Yes, that’s Judge Robert Bork, the ultra-conservative whose Supreme Court nomination was sunk 23 years ago, and has been going to bat against Democratic Supreme Court nominees ever since.

In fact, Barak has done his so-called “activist judging” in a country with no written Constitution, and has received praise from conservative Supreme Court Justice Antonin Scalia.

This isn’t about Barak or about a real threat of “judicial activism”—it’s about Senate Republicans desperately reaching for something to distort.
 

UPDATE: Sen. Jon Kyl is singing the same tune on Barak. Is this really all they have?

PFAW

Leahy Brings Citizens United to the Forefront in Kagan Hearings

In his opening remarks in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, Senate Judiciary Committee chairman Patrick Leahy put the Court’s decision in Citizens United v. FEC at the front and center of the debate.

It is essential that judicial nominees understand that, as judges, they are not members of an administration. The courts are not subsidiaries of any political party or interest group, and our judges should not be partisans. That is why the Supreme Court’s intervention in the 2000 presidential election in Bush v. Gore was so jarring and wrong. That is why the Supreme Court’s recent decision in Citizens United, in which five conservative Justices rejected the Court’s own precedent, the bipartisan law enacted by Congress, and 100 years of legal developments in order to open the door for massive corporate spending on elections, was such a jolt to the system.

We hope to hear a lot more about Citizens United in the next few days—a ruling that a recent PFAW poll showed that 77% of Americans want to amend the Constitution to undo.
 

PFAW

Leahy: Senators Will Address Oil and the Courts in Kagan Hearings

Patrick Leahy, the chairman of the Senate Judiciary Committee, says he’s going to make sure the subject of oil and the courts comes up in Solicitor General Elena Kagan’s Supreme Court confirmation hearings, which begin next week. The Hill reported Saturday:

The chairman, who will guide the confirmation hearing, pointed to controversial cases slashing a damages award in the 1989 Exxon-Valdez spill incident, an environmental disaster that's now been dwarfed by the Gulf spill.

"Turning back the award in the Exxon-Valdez, I wonder if the Supreme Court would do that today as they watch what's happening in the Gulf," Leahy said on C-SPAN's "Newsmakers" program, to air this weekend.

"It wasn't the liberals who said that Exxon shouldn't have to pay the amount that a jury gave the people of Alaska for their oil spill," the Vermont senator added later, critiquing conservative judges' decisions in some cases.

We, too, wonder if the current Supreme Court’s allegiance to corporate interests would lead it to give the same sort of gift to BP as it did to Exxon in 2008, if damage claims from BP’s devastating spill make their way to the high court. In fact, the pro-corporate reflexes that led to the Court to halve a jury’s award to the Exxon spill’s victims are exactly what we’d like Kagan to address in the upcoming hearings.

Take a look at the 20 questions we’ve drafted for Kagan . We’re glad to hear that a few of them may be asked.

 

 

PFAW