During Elena Kagan’s politically charged senate confirmation hearing, some Republican senators tried in vain to create criticism of Obama’s Supreme Court nominee because she was U.S. Supreme Court Thurgood Marshall’s law clerk. In fact, the late Supreme Court justice’s name was invoked 35 times.
Utah Republican Senator Orin Hatch painted Kagan’s mentor as an “activist” judge. But lets be honest and get rid of the myth that only judges who support civil rights are “activist” judges – because judicial activism cuts both ways.
The more important question is why do these Republicans remain silent when judicial activism comes from their own corner and conservative Supreme Court justices radically depart from precedent?
Certainly the recent United States Supreme Court’s controversial decision in Citizens United which gave corporations “rights” the federal constitution never contemplated should be considered blatant activism. Corporations are not citizens; they do not vote and do not deserve the panoply of rights accorded to individuals. Yet the activist 5-4 Supreme Court reversed precedent to substitute personal political preferences for corporations and special interests against democracy.
In Bush v. Gore, the U.S. Supreme Court 5-4 majority usurped Florida’s election law by relying upon the Equal Protection Clause of the Fourteenth Amendment to determine there was no time to create a system that was fair to both Bush and Gore. But Florida already had a “fair” election process which was codified. So the Florida Supreme Court’s interpretation of its state election law should have been followed under the “states’ rights” doctrine.
Speaking of judicial activism – both United States Supreme Court Justices Samuel Alito and Antonin Scalia are members of a Federalist Society – an organization that advocates a roll back of civil rights. Bush nominee Justice John Roberts claims he had no recollection of membership in the Federalist Society, but according to the Washington Post, Roberts was listed as a 97-98 member of the organization. Other right wing members include Senator Orrin Hatch, Kenneth Starr, and Robert Bork.
Robert Bork supported the rights of southern states to impose a poll tax on voters. If you recall, Bork was nominated for the Supreme Court in 1987 by President Ronald Reagan and rejected by the senate during his own confirmation hearing because some senators were concerned with his divergent legal views.
If Justice Thurgood Marshall was an “activist” because he upheld civil rights based upon the federal constitution, Elena Kagan was indeed fortunate to have a mentor who was a brilliant jurist who understood the federal constitution, civil rights and voting rights. As President John F. Kennedy said: “In giving rights to others which belong to them, we give rights to ourselves and to our country.”
Tracy Emblem is an attorney in Escondido.