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Thurgood Marshall On Trial in D.C.

Submitted by on July 1, 2010 – 9:38 am5 Comments

If you’ve been watching the confirmation hearings of Supreme Court nominee and current Solicitor General Elena Kagan, you’ve heard her defending the views of others, as well as her own.

The major figure under whom Kagan first worked as a clerk is none other than the first Black Supreme Court Justice, Thurgood Marshall.

Largely lauded as a historical and groundbreaking figure who worked tirelessly as the lead attorney on the landmark case of Brown v. Board of Education, which effectively brought about an end to segregation, Marshall was appointed to the Supreme Court by President Lyndon B. Johnson in 1967.

As a Supreme Court Justice, Marshall championed the causes of civil rights, support of abortion rights, and the opposition to the death penalty. He once famously said, when asked about his judicial philosophy, “You do what you think is right and let the law catch up.” It is precisely this philosophy which is causing many on the political right to attack the late great Marshall.

Most of these criticisms come from Southern senators (just sayin’) such as Jeff Sessions of Alabama, who remarked that Kagan has “associated herself with well-known activist judges who have used their power to redefine the meaning of our Constitution and have the result of advancing that judge’s preferred social policies.”

Senators Orrin Hatch of Utah and Jon Kyl of Arizona, among others, also took shots at both Kagan and her former mentor, and continued to label Marshall an “activist judge.”

Are these legitimate criticisms or do they wreak of bitterness over a series of changes that have taken place in this country over the past 40 years which have promoted equality? We’ll let you decide.

The fact is, Thurgood Marshall is a great historical figure who had a responsibility to represent his interpretation of the Constitution and the various laws and legal questions which reached the highest court during his tenure. He sought those rights before they were popular or “mainstream” and does not deserve the physical drubbing he has received in Washington at the hands of a few senators over the past few days.

As for his philosophy of “letting the law catch up,” one must understand that Marshall fought some of the most grievous and racially apathetic policies and laws in this country’s history for the duration of his career. Having done so, he realized laws are not always fair, impartial, and they are certainly not perfect. This is because laws are written by people, and many of them reflect the flaws of their writers in the language. Thus, trying to do what is right to facilitate change—even if it’s not popular—may require action in spite of laws currently reflecting the prejudices and limited views of some lawmakers.

In a continued effort to establish her independence and defend her former boss, Kagan said, “I love Justice Marshall. He did an enormous amount for me. But if you confirm me to this position, you will get Justice Kagan. You won’t get Justice Marshall, and that’s an important thing.”

Elena Kagan is expected to be confirmed to the Supreme Court in the coming weeks.

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