29 June 2010

Like Jackie Robinson was an "activist" ballplayer.

I have only this to say regarding the conservative senator's invitation to Tony Perkins (head of the antigay Christian hate group The Family Research Council) allowing Perkins to interrogate Elena Kagan for her presumed sympathies to gay rights:

It is in no way different from inviting The Aryan Nations to the Senate interrogate to Kagan for her presumed Zionism.

It is, to say the least, a novel interpretation of the "advise and consent" clause to allow some extremist, religiously motivated ideologue the right to confront a judicial candidate for her moral shortcomings with the imprimatur of the United States Senate. Kagan is a candidate for judge, not bishop.

No, the law and your morality are not interchangeable, you sanctimonious dumbasses.

And speaking of sanctimony, this really turned my stomach.


Since he was not there to defend himself, permit me put Justice Thurgood Marshall's quote in context. Every year the judicial clerks of the Supreme Court have a formal lunch with a sitting justice in attendance. One year it was Justice Marshall's turn. When asked by a clerk to define his judicial philosophy, Marshall replied, "You do what you think is right and let the law catch up."

He was correct. Very often the law lags behind the Constitution.

It's probably difficult to notice that when you're a rich white man who's never had a single opportunity foreclosed based on your race, gender, religion or sexuality, and you've never been shackled by an unfair and unreasonable legal disability or received anything but the benefit of any disparate treatment, and never even been slightly harmed by the institutional bigotry of the State.

No, I suppose the legal status quo looks just peachy from where you sit, senator.

It would be absurd and unhinged to believe that Justice Marshall — in his capacity as a Supreme Court Justice, in a statement to the world's most elite law students — meant to say that what he thought was "right" might justifiably be untethered or unharbored to what he thought was Constitutional.

Yet the conservatives are making precisely that specious argument. In fact, that is exactly their definition of "judicial activism," at least to the extent they object to the outcome. 

They have no problem with conservative judges inventing doctrines like "standing" that prevent people from having their day in court, or deciding that corporations have all the benefits of legal "personhood" with few of the liabilities, or carving out new exceptions to the Equal Protection Clause, or discovering some "automobile exception" to the Fourth Amendment, etc.

That's all fine, but when a black judge decides in a way that benefits black people, that's "judicial activism." And such "activism" is precisely the reason conservatives are terrified that Dean Kagan might decide in a way that benefits...softball players.

Ultraconservatives prefer the "originalist" judicial philosophy of Justice Antonin Scalia as followed slavishly by Justice Clarence Thomas. Scalia doesn't do what he thinks is right. Oh, no! He performs some kind of Shirley McClaine-style past-life regression where he grasps the prevailing morality of 18th Century post-colonial America in one hand (as if there was ever one "community standard") and the collective intent of the Founding Fathers (as if they ever unanimously agreed on anything) in the other. Scalia is thus steered by Madison et al, in the same way spirits move a planchette across the Ouija board. 

"Originalism" is law-by-seance, with Nino Scalia as medium. Yet the "judicial activism" of Thurgood Marshall merits...ridicule?

How can any serious person suggest Marshall's positions were "outside the mainstream"? He favored full civil rights for racial minorities, favored a woman's right to make family planning decisions, opposed the death penalty in all cases, and believed the government needed warrants to tap your phone and arrest you in your home. Those may not be your positions, Senator John Kyl, but they're all squarely within the mainstream public debate. Or are you still pissed off by Thurgood Marshall's "outside the mainstream" belief that the Constitution was wrong about slavery, that Dred Scott and Plessy v Ferguson were wrongly decided, and "separate but equal" is not, in fact, equal at all?

Here's a question from Senator Jefferson Beauregard Sessions III:
Does the judge understand that they can’t utilize the power — the lifetime appointment — to redefine the meaning of the Constitution? To have it promote an agenda in an activist way that the American people won’t vote for?
What? No. Actually senator, a first-year law student wouldn't "understand" your absurd construction that makes a mockery of the Separation of Powers generally, and the independent judiciary specifically. In fact, it is most definitely and even explicitly the "power," as well as the competence, and even the obligation of judges to utterly ignore the collective will of any plebiscite that acts in contravention to the letter of the Constitution, its purpose or its principles.

Senator Sessions is himself a failed nominee to the federal bench. Apparently that is what qualifies him to lead the conservative assault on Elena Kagan. It's another thing he will fail at.

Conservatives, seriously — read a fucking book.

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