July 9, 2010
Private: The Troubling Meaning of Senators’ Attacks on Justice Thurgood Marshall
judicial nominations, Justice Thurgood Marshall, Kagan Confirmation Hearings, Professor Rebecca L. Brown
Likely the most disconcerting moment of the Kagan Supreme Court confirmation hearings was the trashing of former Justice Thurgood Marshall by a gaggle of Senate Judiciary Republicans. The senators' attacks on Marshall as a wildly out-of-step, activist justice were sharply criticized by academics, such as Maryland law school professor Sherrilyn A. Ifill and civil rights advocates like the NAACP LDF's John Payton.
In a recent article for the Los Angeles Daily Journal, University of Southern California law school professor and former Marshall law clerk Rebecca L. Brown explored the Republican senators' "highly troubling" attacks on Marshall.
Brown, the Newton Professor of Constitutional Law at USC's Gould School of Law, wrote:
What, then, is the object of the derisive remarks we heard last week? The only answer is the use to which Justice Marshall put his judicial methodology, in pursuit of the ideas and principles that he valued. As a justice, Marshall's vision of the Constitution was a document true to its promise of equal moral and political status for all; a document dedicated to protecting individuals from arbitrary and unfair treatment by government; a document protecting the integrity of the democratic process as one open to all people, all points of view, all economic classes, and all political parties; a document designed to protect freedom of conscience in all people from government orthodoxy, and to protect personal dignity from unwarranted invasion. These are some of the principles that Justice Marshall recognized in the Constitution and voted consistently to vindicate when he was on the bench. Justice Marshall's name is synonymous with these ideals.
So when U.S. senators hold up the name of Thurgood Marshall as a negative symbol of judicial behavior, they are conspicuously condemning an understanding of the Constitution as a vehicle for protecting equality, fairness, electoral integrity, and autonomy, the ideas in whose service Justice Marshall voted in every case. And of course most saliently, because of Justice Marshall's personal history, first as a principle architect of the litigation strategy that ultimately dismantled Jim Crow, and then as the first justice who was a descendant of slaves, they are also painfully condemning in a broad symbolic sense the early successes of the civil rights movement itself.
Brown's entire article is here (pdf), posted with the permission of Daily Journal Corp. (2010).
[image via wikimediacommons]
