As Blue Texan at FDL noted, Al Franken laid waste to the GOP's anti-Thurgood Marshall Campaign and as they called it, their minority outreach program. Franken gives his "good friend" Lindsey Graham and the Republicans a little history lesson on what an "activist judge" is and why Justice Thurgood Marshall wasn't one of them.
Franken: You said there are three things that judges hold to when they’re not activists. You said that they respect precedent. They make narrow decisions and they defer to the political branches, in other words the legislature. And there are a lot of recent cases that we’ve been talking about that instinctively strike me and a lot of other people as falling outside of these three guidelines. And I think that in these cases the Supreme Court was legislating from the bench, which is being activist.
Franken goes on to discuss why the decisions in Circuit City v. Adams, Gross v. FBL Financial Services, Rent-a-Center v. Jackson, Citizens United v. Federal Election Commission, Leegin Creative Leather Products, Inc. v. PSKS Inc., the Supreme Court would have fit into Kagan’s guidelines of what would define an “activist court” and noted that Republicans all “seem to like” those decisions. He went on to explain why there is no way that Brown v. Board of Education should be lumped in with those other cases and how it was “an exemplar of overturning a precedent that needed to be overturned.”
Franken: There are certain situations where the Supreme Court really should subject the law to a heightened scrutiny and this is what I think Justice Marshall was talking about when he said that the court should show “special solicitude for the despised and disadvantaged, the people who went unprotected by every other organ of government and who had no other champion.”
Now in the opening statements you were criticized for admiring Justice Marshall for believing this, but I actually think that this belief, Justice Marshall’s belief is just good, Constitutional law.
Are you familiar with Carolene Products… Carolene Products case of 1938?
Kagan: Yes sir.
Franken: Are you familiar with Footnote Four of that decision?
Kagan: Yes sir.
Franken: And you’re familiar with that because the footnote’s really important, isn’t it? It’s often taught in Constitutional law classes, whether they be in the first year or the second year or the third year, right?
Kagan: It is.
Franken: Can you tell me what that footnote says and why it’s important?
Kagan: Senator it seems as though you have it in front of you and you’re going to do a better job of it than I am at this moment.
Franken: You’re a mind reader. Footnote Four basically says that when courts interpret the Constitution and try to figure out whether a law complies with the Constitution, courts should give special scrutiny to laws that violate a specific part of the Constitution, that restrict the political process and that affect “religious, national, racial and discrete and insular minorities” who have a really hard time getting help through the normal political process.
Now to me discrete and insular minorities sounds a lot like the despised and disadvantaged that go unprotected and have no other champion. Is it safe to say that Justice Marshall’s belief is consistent with Carolene Products?
Kagan: Well there’s no doubt Sen. Franken that racial classifications are subject to very high scrutiny under the Equal Protection clause and have been so for a long time and the Equal Protection clause exists to ensure against discrimination on disfavored basis very much including in the archetypal example is race and that it is not only appropriate but obligatory on the courts to enforce that prohibition on discrimination on the basis of race.
Franken: So Justice Marshall’s belief that was criticized in the opening statements is really very consistent with established Constitutional law, isn’t it?
Kagan: Well Sen. Franken, I will say that when I wrote those words I was not speaking of Footnote Four in Carolene Products. I was speaking instead of what I’ve talked about several times at this hearing which is Justice Marshall’s deep belief in insuring a level playing field for all Americans and insuring that each and every American regardless of wealth or power or privilege, that each and every American gets fairly heard before the court and when I wrote that tribute to Justice Marshall and wrote those words that was very much what I had in mind.
Franken: So I’d like to leave you with this thought, okay. Justice Thurgood Marshall was one of the greatest lawyers, jurists in American history. This is a man who won Brown v. Board of Education, who helped end segregation in our nations’ schools and opened the doors to black Americans. This is a man who proved that separate but equal was inherently unequal.
Not only that but he served with distinction as Solicitor General, as a judge on the Second Circuit and as the first African American Supreme Court Justice. This is a giant of the American legal system. And I think what I really want to say is that Justice Marshall wasn’t some activist radical. Rather his views were very much in the mainstream and in line with Constitutional jurisprudence since 1938, since Carolene and before that. And I just think that we need to be aware of that and germane about it.
Kagan: Sen. Franken I’ll just say what I said on many occasions in the past which is that Justice Marshall is a hero of American law and a hero of mine.
Franken: And of mine. Thank you.
Al proves once again why any Republicans that dismiss him as just being a comedian, do so at their peril.