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July 06, 2010 11:51 PM UTC

A Giant of the Law overshadows "Shorty's" hearings

  • 25 Comments
  • by: Voyageur

( – promoted by Voyageur)

Unlike Sen. John Cornyn, R-Texas, and other defenders of the late and unlamented Jim Crow on the Senate Judiciary committee, I come to praise Thurgood Marshall – not to sully him.

It is perhaps a tribute to the qualifications of Elena Kagan to serve on the U.S. Supreme Court that diehard foes like Cornyn have mostly concentrated their fire on her late mentor, not on her.  As a young attorney fresh out of Harvard Law School, Kagan first clerked for the highly regarded Judge Abner Mikva of the U.S. Court of Appeals for the District of Columbia Circuit in 1987 and then in 1988 for the legendary Marshall, a titan of the civil rights movment who was named to the U.S. Supreme Court in 1967 by President Lyndon B. Johnson.  Marshall quickly nicknamed the 5-foot-3 inch Kagan “Shorty.”  It may thus be poetic justice that his giant shadow has fallen so frequently on her confirmation hearings.

Indeed, on the first day of Kagan’s confirmation hearings, Marshall’s name came up more than 30 times.  Most references, like Cornyn’s were derisive:

“It’s clear that he considered himself a judicial activist and was unapologetic about it. He described his judicial philosophy as: ‘Do what you think is right and let the law catch up,’ ” Cornyn jabbed.

To answer Cornyn, we must first begin with a definition of the term “Judicial Activist.”  To politicians like Cornyn it means a judge who votes against their favored position.  A judge who votes their way is praised as honoring the “original intent” of the Constitution.

In analyzing Marshall’s career, it is therefore reasonable to note what that original intent was in terms of African-Americans like Marshall.  Originally, the Constitution explicitly empowered slavery under clauses denying rights to persons categorized under the euphemism of “bound to service.”  Slaves were also counted as three-fifths of a person for the purpose of apportioning seats in the U.S. House of Representatives.

That shameful scar on the Constitution was finally corrected on Dec. 6, 1865 with the adoption of the 13th amendment, which declared: Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

That amendment, not Abraham Lincoln’s emancipation proclamation, finally abolished the evil of slavery in the United States.  The emancipation proclamation was a war measure based on Lincoln’s war powers and only outlawed slavery in the ten Confederate States still in rebellion in 1863.  Slavery was still permitted in the border states that had remained loyal to the union, Maryland, Delaware, Kentucky and Missouri, and even in those parts of the Confederacy already liberated by Union troops, such as New Orleans.

Alas, the end of slavery didn’t mean equality – or even basic human rights – for the freedmen.   The former Confederate states promptly passed “Black Codes” returning blacks to near slavery.  When some of them were struck down under the 14th Amendment, the “Redeemer” regimes that ran the South after the end of Reconstruction in 1877 responded with technically neutral laws that were in fact enforced in a racially biased way.   Unfairly enforced literacy tests and other atrocities denied blacks the right to vote.  Meanwhile, the Ku Klux Klan and other terrorist groups used rape and murder to enforce white supremacy.

An estimated 5,000 African Americans were lynched in the United States between 1860 and 1890 according to Sherrilyn A. Ifill, professor at the University of Maryland School of Law. Far from the sanitized hangings portrayed in western movies, lynchings usually involved extreme torture, burning, castration and other brutality.  And for all practical purposes, lynchings were legal.  Racist local officials usually refused to indict the killers and on the rare occasions that the murderers were indicted, they were acquitted by all-white juries.  Repeated efforts to pass a federal anti-lynching law were filibustered to death by racist senators.

The notorious “Pitchfork Ben” Tillman, governor and later U.S. Senator from South Carolina, who died in 1918, passionately defended that reign of terror, proclaiming: “We of the South have never recognized the right of the Negro to govern white men, and we never will. We have never believed him to be the equal of the white man, and we will not submit to his gratifying his lust on our wives and daughters without lynching him.”

That was the world that Thurgood Marshall was born into on July 2, 1908.  I think he can be forgiven for believing that the world of the Klan and Jim Crow that the Tillmans of the world had cast into law was in horrific opposition to the principles of the Declaration of Independence, the Constitution as amended with the 13th, 14th and 15th amendments and the very concept of human decency.

More than any living American since Frederick Douglass and Abraham Lincoln, Marshall would change the evil that Lynch Law had brought to America.  And he would use the good contained within the law to change the evil embedded in the law.

    After graduating first in his class at Howard University School of Law in 1933, he spent a year in private practice before he began working with the National Association for the Advancement of Colored People in Baltimore.  He won his first major civil rights case, Murray v. Pearson, 169 Md. 478 in 1936, undermining at the state level the “separate but equal” doctrine established in the Plessy v. Ferguson decision that underpinned Jim Crow.  That decision desegregated the University of Maryland.  It had no legal impact in any other state, but Marshall was only warming up.  Before his career as an advocate was over, Marshall argued 32 cases before the U.S. Supreme Court – and won 29 of them.

His first victory in the U.S. Supreme Court, was Chambers v. Florida, 309 U.S. 227 (1940), won at the tender age of 32. That same year, he was appointed Chief Counsel for the NAACP.  And, of course, he won his most famous case as a lawyer in 1954,  Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)  – when the high court finally buried the pernicious “separate but equal” doctrine established in Plessy v. Ferguson by recognizing that in public education, separate could never be truly equal (not that the hovels that Jim Crow established as black schools even pretended to be equal.)

By the time President Johnson named Marshall to the high court in 1967, he had probably made a greater impact on American life through the law than any advocate in U.S. legal history, not excepting the legendary Clarence Darrow.  Make no mistake – Thurgood Marshall killed Jim Crow, and America is far the better for it.

Having said that, it must be said also that Marshall’s greatness was as an advocate, not as a judge.  He found the bench and the restrictions it carried confining.  He was a good judge but not a great one, and his greatest impact on the court was as a collaborator to the matchless William Brennan  – the jurist hailed as “the mind of the Warren Court” who left an indelible imprint on the law.

In 1987, Marshall gave a controversial speech on the occasion of the bicentennial celebrations of the U.S. Constitution in which he stated of the founders: “the government they devised was defective from the start, requiring several amendments, a civil war, and major social transformations to attain the system of constitutional government and its respect for the freedoms and individual rights, we hold as fundamental today.”

In conclusion Marshall stated,

“Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.”

Some of the critics of Marshall are still trying to take that statement out of context and use it today to embarrass his former clerk, Kagan.   Let them try.

Fair-minded Americans, including both Colorado U.S. Senators Mark Udall and Michael Bennet – are far more likely to celebrate Marshall’s role in bringing the promise of “liberty and justice for all” from mere shibboleth to glorious reality.

As for Elana Kagan – the young woman Marshall jokingly called ‘Shorty’ – don’t worry about being only 5-foot-3.  If you build on the legacy of Thurgood Marshall on the high court, you will be standing on the shoulders of one of the greatest giants of American legal history.

Reprinted with Permission from Bob Ewegen’s column in the Blackacre Journal published by the Mile High Law Office.

http://www.milehighlawoffice.c…

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25 thoughts on “A Giant of the Law overshadows “Shorty’s” hearings

    1. make point could be effective, the incivility of your charges against the opposition in the first sentence might make it less relevant for many.  One could argue that the merits of incivility may be subjective, relative to the merits of the cause and one’s perspective.  It seems that if that’s your case for use of incivility here, you discount the fact that Marshall himself was able to further his cause, despite the rigidity of the time.  Not to mention that it’s doubtful many would place your fear of rigidity within the same parameters of what Marshall faced.  So, it seems like the merits of your point might be weakened by the fact fact that so many would find your opening statement unnecessarily severe and petulant.  Even if your point is to connect the opponents position with the unjustness of Marshall’s time, it seems overly aggressive to present their critiques of Marshall as straightforward support of a prior unjust position.

  1. Was one of the greatest lawyers, if not persons of the twentieth century.  

    The fact that Marshall chose Kagan to clerk for him says a little about her.  The fact that her opponents choose to attack her for working for one of the great minds of the 20th century says a lot more about the people attacking her.

  2. If you build on the legacy of Thurgood Marshall on the high court, you will be standing on the shoulders of one of the greatest giants of American legal history.

    1. with legal citations and all.  But we have a very high quality readership.

      If you want to follow the link to the Blackacre Journal, there are live links to most of the case law I cited.

  3. The Supreme Court has the power to interpret the Constitution to address issues that the Founders couldn’t have forseen, issues that speak to our potential as a just and honorable society.

    But to many Conservatives, this is wrong. So, using their logic, the Constitution as written is perfect. 18th century wisdom applied to 21st century problems.

    Such rigidity is counter-productive to freedom, since it requires unflinching and unquestioning fealty to many of the same beliefs that held us back at times when this nation had a chance to prove itself to be everything we claim it to be.

    1. …otherwise, the national legislature (duly elected to represent the people) might be allowed to regulate campaign finances or address universal health care.  Thanks to the Heavens and Stars, the mighty courts may step in to squash such undemocratic shenanigans.  

      1. means that sometimes it will overrule the legislature or the executive: even when I agree with the legislature or executive.

        My fears about the current court do not have anything to do with this authority founded in Marbury v. Madison, but have to do with its move away from incrementalism towards a trashing of Stare Decisis, which leads to a scarier more unsettled world.  

        1. the Court’s potential power is enormous and disturbing. It in many ways gets “the last word” (overruled only by Constitutional amendment, when the holding is a Constitutional one). It is, arguably, the most insufficiently checked branch of government, deriving its most important checks from self-restraint rather than other branches.

          1. The power of the judiciary is checked by time and the opinions of the people.  A court can only delay change or take away rights in the face of divided opposition or for a time.  When the weight of the people have clearly been against the courts as expressed through elections they change, sometimes dramatically such as the switch in time to save nine.

  4. The issues about who we are as a people, what the relationship of morality to law is and should be, what the role of the judiciary is, and how necessary it is, however we structure our union, to have a living, breathing system for robust social change, are eternal themes that we need to pay far more attention to, and far more informed and well-reasoned attention to.

    I think we’ve struck a pretty good balance between anchoring ourselves in a Constitution, and permitting our continued adaptation to changing circumstances and changing understandings. Had our judiciary been less “activist” in our history, that balance would have been far less optimal, leaving us without any streamlined way to kick-start obviously necessary change. The judiciary has been admirably restrained, even when not enough so for the tastes of one side or the other, and that norm has also served us well.

    An interesting story about Marshall’s appointment to the Court: LBJ desperately wanted to appoint the first black Supreme Court Justice, but his term in office was coming to an end, and no justice was ready to die or retire. So LBJ offered Ramsey Clark the position of Attorney General, in order to provoke Clark’s father, Supreme Court Justice Tom Clark, to retire in order to avoid a conflict of interest without stifling his son’s career. Justice Clark did retire, and LBJ appointed Thurgood Marshall to replace him.

      1.  

        Reprinted with Permission from Bob Ewegen’s column in the Blackacre Journal published by the Mile High Law Office.

        Voyageur, in this case, is just a go-between.  Those who know them both know voyageur is much more handsome, though not quite as smart, as Bob.

  5. To answer Cornyn, we must first begin with a definition of the term “Judicial Activist.”  To politicians like Cornyn it means a judge who votes against their favored position.  A judge who votes their way is praised as honoring the “original intent” of the Constitution.

    So true. These conservatives who rant and rail against “judicial activism” are full of it. I didn’t see Cornyn protest the “activist” ruling of the Supreme Court that put Bush in power. Had they denied writ of certiori Gore would likely have been president.

    Marshall’s place in history is more significant than many understand. With the Senate controlled by Southerners because of the senority system, it was guaranteed no civil rights legislation was going to pass. So the only tactic open to attacking Jim Crow and segregation was through the courts, and Marshall and the NAACP did that tenaciously, methodically, and effectively.

    Like Marshall and Kagan, I have no problem with the Constitution referred to as a “living document” because our Constitution must live up to the original intent that all men, and women, are created equal and endowed by their Creator with certain unalienable rights.  

    1. These conservatives who rant and rail against “judicial activism” are full of it. I didn’t see Cornyn protest the “activist” ruling of the Supreme Court that put Bush in power. Had they denied writ of certiori Gore would likely have been president.

        Actually, if they’d stayed out of it, Bush would almost certainly have been president.  The reason is that the U.S. Constitution gives final authority for awarding electoral votes to the legislature of a state.

        Gov. Jeb Bush, brother of W., had already called them into session.  The lege, heavily Republican, would have awarded the votes to W. if the courts had stayed out of it.

        It’s also easy to forget that the U.S. Supreme Court decision overturning the Fla. Supreme Court 4-3 ruling was 7-2 — only Ginsburg and Stevens wanting to go with the Fla Court.  Where they disagreed was on the remedy — voting 5-4 to effectively put W. in the White House.  

        They should have just remanded the case to the Fla. court again for further hearings consistent with their 7-2 ruling.   The clock was running out with regard to the “safe harbor” provision in federal law and the Fla. Legislature would almost certainly have pounced and given the votes — and the election — to W.

        But the difference would have been that public outrage would have descended on the Florida legislature, not the U.S. Supreme Court.   The court is often accused of being results oriented.  In this case, they weren’t results oriented enough.  

        Having watched the full trial in Sanders Saul’s courtroom, I was convinced his ruling was right — and the Fla. Court was wrong in overturning it.   But the five pro Bush SCOTUS judges, who obviously agreed with that, only had to show a little restraint to get the outcome they desired without dragging the court through the mud.

        Sadly for the standing of the court in the eyes of the American people, they blew it.  It was one of the few dumb calls by Sandra Day O’Connor.  

      1. Obviously you are far better informed on what happened legally than what I was.

        I had completely forgotten the scenario of the FL leg. getting involved, which would have of course handed it to Bush anyway since it was heavily Republican. Thanks for your insight.  

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