While this was written for Daily Kos, and has some DK specific language, it is more than relevant for a Virginia blog, as should become evident
in an op ed in today’s Washington Post with the title Putting my father, Thurgood Marshall, on trial. After noting that he was too young to attend his father’s confirmation hearing, he descries the Kagan spectacle as a kind of rehearing and then offers this powerful paragraph:
I believe that this spectacle is partly a result of my father having lived a life of consequence as a practicing attorney and as a jurist. The rhetoric serves as a reminder that President Lyndon Johnson displayed wisdom and great courage in nominating my father to the Supreme Court. Yes, he had served as solicitor general of the United States and as a federal appellate judge who authored more than 90 opinions without a single reversal, but as notable is what he did before holding those positions.
without a single reversal – somehow what immediately came to mind was the image of Judge Mendoza in The West Wing, the least reversed District Judge.
But note how Marshall ends that paragraph – what his father did before holding those positions.
Thurgood Msrshall did the ordinary work of a lawyer – writing wills, trying murder cases and doing the other tasks, including “after working in the courts to bring long-overdue voting rights to the disenfranchised and to desegregate schools.”
Voting rights to the disenfranchised – here in Virginia Republican Governor Robert McDonnell puts Hans von Spakovsky to the Fairfax County electoral board which immediately – big surprise? – stops distributing foreign language voter registration materials.
Marshall was confirmed to the Court 69-11. There will be a higher percentage of the Senate voting against Kagan, the second of his clerks to be nominated to the highest court, the third to be nominated as any kind of judge.
It was Ronald Reagan, the son reminds us, who placed Ralph Winter and Douglas Ginsburg on the Circuit Courts of Appeals. Ginsburg went on the DC Circuit in 1986, and the following year had his name offered for SCOTUS after the nomination of Robert Bork failed, but his nomination was pulled after his use of marijuana with law students while himself a professor became known. He continues to serve, including a period as Chief Judge in the past decade. Somehow I do not remember the issue of clerkships of either man becoming an issue of contention.
There is another paragraph worth quoting:
If there is to be a new round of battles over my father’s jurisprudence, his vision of the role of the courts or his belief in the 14th Amendment, then I like those odds, too. As Kagan, who clerked for my father in the 1987 Supreme Court term, noted this week, my father revered the high court because “his whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else.”
We currently have a Court too many of whose members lack any practical experience of the application of law to ordinary people. Kagan would change an unfortunate pattern – every current member, including the just-retired Justice Stevens, came to the Court directly from the Federal Circuit Courts of Appeals. And yet, some of the issues that represent the greatest issues for SCOTUS appear in federal courts only on appellate jurisdiction from state high courts: they are issues of state and local law, and the context may be further incorporation of the Bill of Rights. These would not be dealt with by federal appellate Courts.
It is interesting that the last four nomination of Justices by Democrats have been of people who have had a somewhat more varied legal background. Sotomayor clearly has the most diverse, as well as the longest and most varied service as a judge. Breyer was a staff attorney for Senate Judiciary before he went to the 1st Circuit, and he was so highly regarded his nomination by Jimmy Carter to that bench was confirmed AFTER Carter had lost reelection to Reagan. Ruth Bader Ginsburg had a long practice as a litigator before herself going on the Circuit bench.
Some have objected to Kagan’s lack of prior judicial service (while conveniently forgetting to mention it was Republicans who prevented her from being confirmed to the bench after nomination by Clinton). I think of many distinguished Justices for whom the Court was their first service in judicial robes. Robert Jackson had been Attorney General (having read for the law, and not attended law school). Earl Warren had been in high office in California and was a failed VP nomination. Hugo Black had been a senator (although to be fair, he had served one year as a police judge 25 years before being nominated to the Supreme Court).
Thurgood Marshall, Jr., makes clear his respect for Elena Kagan, that she will be her own person on the bench. As it happens, my wife and I are good friends with another member of Daily Kos who grew up with Kagan. Kagan has been shaped, as each of us has, by her own life experiences. These include her mother’s service as a teacher, something about which the nominee remarked, noting the several hundred she did not know who showed for her mother’s funeral to honor the teacher that had had the greatest impact on their lives.
Service as a clerk does not mean one slavishly follows the thinking of the Justice under whom one served. The op ed notes the conservatives Winter and Ginsburg as clerks of Thurgood Marshall. I might mention that William Rehnquist took positions that I am sure his Justice, the aforemention Robert Jackson, would have criticized.
It is hard to imagine that in challenging Kagan on Marshall that the Republican senators are doing anything other than using coded racial language. During his own tenure on the Court Marshall was often able to persuade his brethren on a point because of his own experience of the impact of the law. Perhaps those changes in law are things which the Republican senators now wish to roll back. If such is the case, why are they not honest? Why do they not say that they are prepared to reject stare decisis for less than compelling reasons, sometimes for purely political or financial purposes?
I suspect that – as they are discovering to their chagrin – the quality of intellect of Elena Kagan will more than serve as a counterbalance to the intellectual heft often attributed to Antonin Scalia. That may scare them, for she is young enough to serve long enough to become part of a majority on the Court. And she may be able to persuade Kennedy – who incidentally was the person who got the seat first offered to Bork and then to D. Ginsburg – thus restraining the efforts of the four Conservative justices to continue to reverse decades of jurisprudence with which conservative and corporate interests have had objections.
It has been inappropriate to use these hearings to attack Thurgood Marshall. But perhaps there is a positive benefit, in that it provides an opportunity to remind America and several younger generations of how important he was, both before he undertook federal service of any kind and in the three important positions in which he served, in moving this nation forward, steering it away from discrimination and intolerance, making the law something that could be of benefit to all.
And we would all do well to recognize the wisdom of the final paragraph of the op ed by the son of the Justice:
Elena Kagan is her own person. If she is confirmed, that is precisely how she will serve her country as an associate justice. I have worked closely with her and know well that she has far too much respect for the rule of law and for the Supreme Court to render decisions by seeking to channel anyone else. Her intellect and integrity are impeccable.