The Many Flavors Of Judicial Activism: Repubs Take Kagan To The Woodshed

You can bet that this is the only post I will write about the bore-ass Elena Kagan confirmation hearings. Or not. The occasion is the inevitable Republican piling on because President Obama's Supreme Court nominee has spoken admiringly of Thurgood Marshall, for whom she clerked. Marshall was the first African-American justice and lead attorney in Brown vs. Board of Education, the legal straw that broke racial desegregation's back by demolishing the "separate but equal" doctrine.

The Repubs, led by Senator Jeff Sessions of Alabama, are in a faux lather because of their claim that Marshall was an "activist" justice, which for them is a no-no if you devoted your legal career to reconciling a deeply perverse racial policy that grew out of the ashes of Reconstruction with the Bill of Rights.

On the other hand, the majority of the conservative Roberts court is not activist in the eyes of the Repubs because it is merely enshrining the God-given rights of corporations by turning the Constitution on its head, my favorite example being a ruling that declared corporations to be individuals, albeit really big-headed ones, that have free speech guarantees when it comes to buying elections.

Then there are rulings that assert affirmative action is unconstitutional but not regulating firearms is. That age discrimination is a fig newton of the victims' imaginations. Or that the manufacturers of deadly drugs and medical devices can't be sued by the kin of the victims if the FDA approved their use.

Sessions is the perfect senator to be leading the charge because of his own checkered history: On track to possibly become a legal heavyweight himself, his nomination to the federal judiciary was sidetracked because of . . . uh, a pattern of racial insensitivity.

That noted, unlike other pundits I stop short of calling the attacks on Marshall racist. But it is not surprise that yet again the GOP chooses someone like Marshall to zap someone like Kagan knowing full well that its overwhelmingly white voter base will approve.

Kagan will be confirmed and confirmed without a filibuster because the Repubs can't lay a finger on her despite their complaints that she has never served as a judge. Just like William Rehnquist and John and Marshall, to name but two of the many justices who did not. And by the way, Marshall was not an activist, merely a seeker of justice.