Republicans Slam Marshall For Activism, But Al Franken Says It Is Conservatives Who Are ‘Legislating From The Bench’

Republicans opened the confirmation hearing for Elena Kagan’s nomination to the Supreme Court Monday with a sustained attack on her and her mentors — particularly the late Thurgood Marshall — for their perceived judicial activism.

A Democrat on the Senate Judiciary Committee acknowledged such activism exists, but that it is not liberals or Democrats who engage in it. Rather, it is conservatives who have a record of “legislating from the bench,” according to Sen. Al Franken of Minnesota.

The first day of Kagan’s hearing was given almost exclusively to stage-setting, as the nominee and members of the committee all took up the day by making opening statements.

President Obama nominated Kagan this spring to succeed retiring Justice John Paul Stevens. Conservatives largely have opposed the nomination of the woman who is the current solicitor general.

Sen. Jeff Sessions of Alabama, ranking Republican on Judiciary, was just one in a line of GOP senators who took turns assaulting the record of Kagan’s proclaimed mentors and heroes, especially the late Justice Thurgood Marshall.

Sessions called Marshall and former federal Judge Abner Mikva each “a well-known liberal activist judge.” The 50-year-old Kagan clerked for both Marshall and Mikva.

The first African-American to serve on the nation’s highest court, Thurgood Marshall was appointed in 1967 by President Lyndon Johnson. He retired in 1991, and was replaced by Clarence Thomas. Marshall died in 1993.

Sen. Jon Kyl (R-Ariz.) went even further in criticizing Marshall’s memory.

“Ms. Kagan identified Thurgood Marshall as another of her legal ‘heroes.’ Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall’s judicial philosophy, however, was not what I would consider mainstream,” he says.

Marshall’s son was in the audience during the hearing to listen on as senators disparaged his father’s decades of work.

“I was a little surprised,” the Washington Post quotes Goody Marshall as saying in response. “He would’ve probably had the same reaction I did: It’s time to talk about Elena.”

Activism In The Roberts Court

Franken, the Democrat now sitting through his second Supreme Court confirmation hearing, says that his earlier such hearing — last year, for Justice Sonia Sotomayor — laid bare the truth of judicial activism.

“There is such a thing as legislating from the bench. And it is practiced repeatedly by the Roberts Court, where it has cut in only one direction: in favor of powerful corporate interests, and against the rights of individual Americans,” Franken says, referring to Chief Justice John Roberts, the conservative named to the high court in 2005 by George W. Bush. “In the next few days, I want to continue this conversation. Because I think things have only gotten worse. And so I want to say one thing to the Minnesotans watching at home: With few exceptions, whether you’re a worker, a pensioner, a small business owner, a woman, a voter, or a person who drinks water, your rights are harder to defend today than they were five years ago.”

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As proof, Franken read a laundry list of cases in which he says that decisions by the Roberts Court hurt residents in his state.

“Our state has been victim to the third-largest Ponzi scheme in history. And yet in 2008, in a case called Stoneridge, the Roberts Court made it harder for investors to get their money back from the people that defrauded them,” he says. “The Twin Cities have more older workers per capita than almost any other city in the nation. And yet in 2009, in a case called Gross, the Roberts Court made it easier for corporations to fire older Americans and get away with it. Minnesota has more wetlands than all but three states. And yet in a case called Rapanos, the Court cut countless streams and wetlands out of the Clean Water Act-even though they’d been covered for up to 30 years.”

Franken notes that in each of those cases, Stevens, the justice whom Kagan would replace, led the dissent.

“Now Justice Stevens is no firebrand liberal. He was appointed to the Seventh Circuit by Richard Nixon. And he was elevated to the Supreme Court by Gerald Ford,” Franken says. “By all accounts, he was considered a moderate.And yet he didn’t hesitate to tell corporations that they aren’t a part of ‘‘We the People,’ by whom and for whom our Constitution was established.’ And he didn’t flinch when he told a President that ‘the Executive is bound to comply with the rule of law.’ General Kagan, you’ve got big shoes to fill.”

The publisher of the news site On The Hill, Scott Nance has covered Congress and the federal government for more than a decade.

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