June 2010

  • June 30, 2010
    A group of Republican Senate Judiciary Committee members, as noted in this blog post, attacked the work of Thurgood Marshall, the former Supreme Court justice and towering civil rights leader during the opening day of the Elena Kagan Supreme Court confirmation hearings. The senators' broadsides of Marshall continue to draw sharp rebuttals.

    As noted by The New York Times, "Justice Thurgood Marshall, who as a lawyer argued the Brown case [Brown v. Board Education, which invalidated segregation in schools], has emerged as a dominant figure in the hearings. Ms. Kagan clerked for him, and Republicans, led by Senator Jon Kyl of Arizona, have attacked Justice Marshall as a liberal ‘activist' and expressed concerns about Ms. Kagan's association with him."

    In a column for The Washington Post, Stephanie J. Jones knocks Sens. Kyl, Jeff Sessions and John Cornyn for their over-the-top and wildly unfair remarks.

    Jones, the former executive director of the National Urban League Policy Institute and a former chief Senate Judiciary Committee counsel, writes:

    Let me put it plainly, senators: Far from being the out-of-the mainstream caricature you seek to create, Thurgood Marshall deserves your unyielding gratitude and respect. Among other things, he saved this nation from a second civil war.


    Marshall stood up for the rights of millions of ordinary Americans who, were it not for him, would have continued to be second-class citizens, unable to vote, attend state universities or share public accommodations by virtue of the color of their skin. This would have been a very different nation - had it even survived.

  • June 30, 2010
    Guest Post

    By Emily J. Martin, Vice President, National Women's Law Center
    This is cross-posted at Womenstake.org

    We've said more than a few times over the past few weeks that Supreme Court confirmation hearings are a unique opportunity for the nation to engage in a conversation about the Supreme Court and the impact that its decisions can have on our lives. We didn't want to lose sight of the fact, however, that the hearings serve the very useful function of introducing us to the individual nominated to sit on that Court.

    In the case of Elena Kagan (pictured with Vice President Biden and President Obama), the chance for the public to get a better sense of her seems particularly important. In polls conducted last week, 47 percent of those polled said they didn't know enough about her to opine whether or not she should be confirmed.

    This week, that 47 percent got their first chance. Elena Kagan got to speak. And what we have heard so far is reassuring and, indeed, inspiring: she is an articulate, warm, thoughtful woman who is not afraid to show a sense of humor, who takes the power and promise of the judiciary very seriously, and who demonstrates a dazzling command of the law.

  • June 30, 2010
    Guest Post

    By David Kairys, a law professor at Temple University, visiting professor at University of Miami, and leading civil rights lawyer. Kairys is the author of Philadelphia Freedom, Memoir of a Civil Rights Lawyer, and his other books include his co-authored leading progressive critique of the law, The Politics of Law.
    After the first two days of the Kagan confirmation hearing, I doubted I would have anything to add to my reaction to the Sotomayor hearing - It's Hard to Watch. The senators and the nominee seem once again locked in a debate over who has the most passive vision of judging, and the rules and assumptions of the debate are generally embedded in and promote conservative ideas about the substance and process of law.

    But Senator Sheldon Whitehouse (D., R.I.) riveted my attention on day three with his determination to show that Kagan and he share an intense commitment to following precedents. Kagan, who is doing quite well and will be deservedly confirmed, has been articulating as strong a regard for "deference" to prior decisions as I have seen in any confirmation hearing, or in any Supreme Court opinion, law review or scholarly conference for some time.

    Conservative justices, including former Chief Justice William Rehnquist, have been for a few decades ignoring precedents - and openly doubting the importance of precedents - as they have pretty much devastated liberal precedents whenever they can find five votes that have a different view.

    Justice O'Connor was tellingly honest about this in her majority opinion in Adarand v. Pena, the 1995 case invalidating an affirmative action plan for federal contractors although a prior case approved a similar plan only several years before. She said, "Remaining true to an intrinsically sounder doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it."

    I responded to this in a law review - "If stare decisis has any significance at all, it would seem to be that decisions with which the current justices disagree have some authoritative or binding effect" - and proposed that the definition of stare decisis be revised to comport with the new conservative understanding.

  • June 30, 2010
    Guest Post

    By Howard M. Wasserman, Associate Professor of Law, Florida International University College of Law
    Some themes and thoughts that jumped out at me from Day Two, the first substantive day, of the Kagan Hearings, where criticism of Justice Thurgood Marshall gave way to talk of Jews eating Chinese food on Christmas.

    1) Sen. Grassley is interested in law school curriculum reform. He pressed Kagan on why Harvard requires International Law as a 1L class, but not Con Law; after all, isn't Con Law so much more fundamental to our system than International Law? The subtext of course, was that Kagan believes international law is more important than our constitutional law--or worse, should be a part of our constitutional law. But the phrasing bordered on an accusation of lack of patriotism--you have more love/respect for the law of other countries than our own beloved (perfect) Constitution.

    Kagan (pictured with Senate Judiciary Committee Chairman Patrick Leahy) gave what I thought was an interesting answer, explaining: 1) We require Legislation/Regulation course that gives 1Ls the background about the structure of the legal and governmental system; 2) Con Law is so complex that students are better able to grasp it as 2Ls and 3Ls; and 3) More students are going to do international litigation or international business transactions in their careers than are going to litigate commerce clause issues. Grassley's response was something to the effect of "Isn't Con Law fundamental to our system and shouldn't something so fundamental be a part of the 1L curriculum?" Maybe next round she can explain that there are only so many hours in the 1L year.

    2) "I would need to research that more" is this year's "I can't decide in the abstract" and "I can't opine on an issue that might come before the Court" (although we have heard some of the latter). This highlights that justices are not walking constitutional law experts who can answer every minute question off the cuff; answers to specific questions require thought and research.

  • June 29, 2010
    During the first day of Elena Kagan's Supreme Court confirmation hearings, a number of Republicans on the Senate Judiciary Committee took to attacking former Justice Thurgood Marshall, a civil rights hero. Kagan was a clerk for the former justice.

    The Huffington Post noted that "Marshall's name came up 35 times during the first day of Kagan's confirmation hearings, compared to 14 mentions of President Obama ...."

    Several of the Republicans who brought up Marshall did so in a disparaging manner. Sen. Jeff Sessions tagged Marshall as "a well-known liberal activist judge," The Huffington Post reported.

    The civil rights group, the NAACP Legal Defense and Educational Fund (LDF), ripped the Senate Republicans for their attacks on Justice Marshall.

    NAACP LDF Director-Counsel John Payton said in a press statement:

    Thurgood Marshall changed our country dramatically for the better. Astonishingly, Elena Kagan is being attacked by certain members of the Senate Judiciary Committee because she says her mentor was Thurgood Marshall. She could not have had a better mentor.

    Here is what is undisputed: In the middle decades of the twentieth century, Thurgood Marshall was a leader of those forces whose faith in the Constitution and the American Dream dismantled the perverse empire of Jim Crow - with its separate and unequal schools and colleges, its rigidly segregated neighborhoods, and its profoundly unequal opportunity in every sector of American life. As the founder of the LDF, Thurgood Marshall helped America understand what democracy really means; and he continued to expound that exalted vision as a Justice of the Supreme Court.

    It is a disservice to the Senate and to the nation to have some, for the sake of hollow posturing, distort Thurgood Marshall's beliefs and his extraordinary contribution to our understanding of justice and equality. Simply put, Thurgood Marshall helped make our union more perfect, and that legacy illuminates the highest possibilities for all Americans yesterday, today and tomorrow.