Thurgood Marshall

Since those senators - Jon Kyle, Jeff Sessions and John Cornyn - don't have the nominee they'd hoped for, "the kind of nominee they wish President Obama had nominated - one who was black and unabashedly liberal," they sought a means to dragging a divisive cultural debate into the forum by turning to Kagan's "association" with the Civil Rights icon Thurgood Marshall.

In "Trashing Thurgood Marshall," Ifill notes, like a growing number of commentators, that the Republican's attacks on the legacy of a Civil Rights champion (Marshall pictured with Kagan in 1988) are "a new low," and a "sucker-punch" on the first day of the hearings, one that is spurring backlash.

Ifill writes:

Race, class and culture divisions are themes that some Republican senators turn to again and again at confirmation hearings. They do this by invoking the specter of out-of-touch elites, unqualified racial minorities, the dangers of international law and equal rights for gays and lesbians.

And so it was attack by association. Kagan's work as Thurgood Marshall's law clerk after she graduated for Harvard Law seemed too good an opportunity for some Republicans on the committee to pass up. Invoking Justice Marshall as an activist gave the Republicans on the committee the chance to criticize the kind of nominee they wish President Obama had nominated - one who was black and unabashedly liberal. The fact that President Obama chose not to appoint such a nominee (precisely to deny Republicans the opportunity to paralyze the country with divisive and unproductive hearings) was of no importance. Elena Kagan was, in essence, raced by the committee members, who used Justice Marshall as a racial stand-in for President Obama and a proxy in the ongoing culture wars.

Outside the Senate Judiciary hearing room, Justice Marshall is regarded as one of the greatest lawyers and most admired judges of the 20th century, so the way the Republicans talked about him -- as a dangerous judicial activist "outside the mainstream" -- was pure theater. Marshall was an unabashed liberal at a time when that word was simply a place on the ideological spectrum, not an indictment. Indeed Marshall's place on the legal spectrum is well within the mainstream of legal thought -- so much so that he was confirmed by a vote of 69-11 for a seat on the Court. In 1967.

But Marshall's legacy stands up to the Republicans' personal attacks, Ifill continues. His legacy includes a long list of principled stances, fights and heroic struggles that built a better nation, albeit one with much progress to be made. Marshall eloquently argued the unconstitutionality of the death penalty, and gave us the resounding statement in favor of privacy rights - "if the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch. Our whole constitutional heritage rebels as the thought of giving the government the power to control men's minds."

Ifill's entire article is available here.

Fifty years ago, on Monday, February 1, 1960, Ezell Blair, Jr., Franklin McCain, Joe McNeil, and David Richmond, all freshmen at the North Carolina Agricultural and Technical University, walked into the cafeteria at the Woolworth's Store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, McNeil, and Richmond were black, and Woolworth's, although not required to do so by law, followed the local "custom" of refusing to allow its black patrons to eat at its lunch counter. Though they received no service, the four men sat quietly and without incident. When the store closed at 5:30, they left. The next morning, the four young men returned, along with sixteen other students from North Carolina A&T. By Thursday morning, the ranks of the sit-in participants had swelled to over sixty. Within a month, similar sit-in protests were occurring at department stores throughout the South. The fight for civil rights would never be the same.

What had been, as one contemporary put it, a civil rights movement dominated by lawyers working quietly in courtrooms had become a mass phenomenon. The student-led sit-ins thrust the civil rights question to the forefront of the 1960 presidential elections, and there is a direct line between the students' activism and the passage of Title II of the Civil Rights Act of 1964. That landmark law, which prohibits racial discrimination in most privately-owned businesses, radically transformed rights of private ownership in the United States and has become one of our most successful civil rights statutes.

It's easy, in hindsight, to downplay the controversy that surrounded the students' tactics, but, at the time, the Greensboro protesters were maligned from all sides as threatening sacred rights of private property and the rule of law in pursuit of what many commentators considered to be a trivial interest in access to lunch counter service. Such criticism did not come just from conservatives and segregationists. According to one account, when Thurgood Marshall heard about the sit-ins, he proclaimed that "he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going into their stores or lunch counters and refusing to leave when ordered to do so."

Whether the Greensboro students knew it or not, in violating property rights as they did, they tapped into a long tradition within the history of Anglo-American property law. For as long as there has been private ownership, it seems, there have been groups who have sought to challenge the prerogatives of ownership in search of a more just social order. Sometimes these movements have succeeded. More often, they have not. But the pervasive influence of these property outlaw tactics on the development of American property doctrine cannot be denied. In Property Outlaws, we explore the sit-in episode (along with scores of other examples of property lawbreaking) to try to extract broader lessons about the interaction between disobedience and ownership.