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August 15th, 2010

Was Grassley Race-Baiting?

By Nathan Tucker

Julian Bond, a Virginian who serves on the board for the People for the American Way, argues that the answer to that question is yes.  In a guest op-ed that appeared in the Des Moines Register on Wednesday, Bond argued that, during Elena Kagan’s Supreme Court confirmation hearings, Senator Grassley and other Republican senators unfairly, in his opinion, attacked the late Supreme Court Justice Thurgood Marshall as an activist.

According to Bond, they attacked Marshall, for whom Kagan once clerked, not out of principle but as part of an effort to “flagrantly disparage a civil rights hero and the legacy of equality for which he fought” “in an effort to curry favor with an increasingly extreme base, personified by the likes of Sarah Palin.”

Bond’s op-ed is not alone.  In a recent piece in the Boston Globe, Martha Minow, Elena Kagan’s successor as dean of Harvard Law School, wrote that by invoking “Justice Marshall now, some want to appeal to and perhaps feed anxieties of some whites about desegregation—and about black men in power.”

She goes on to argue that:  “It’s time for a deep breath and a rejection of ignorance and distortion.  It is time to reclaim and celebrate the concrete and symbolic influences of Marshall’s ruling in struggles for equal opportunity regardless of gender, disability, language, immigrant status, religion, sexual orientation, or socio-economic status.”

Unfortunately, this is nothing more than an attempt to brand as racist anyone who dares voice disagreement with the philosophy and ideas of someone who happens to be of a different ethnic background.  If one opposes the liberal jurisprudence of a black civil rights leader such as Marshall, they must be bigoted.

Democrats engaged in this kind of racial politics last year when they dared Republicans to oppose Obama’s Supreme Court nominee Sonya Sotomayor under the disillusioned belief that Hispanics would mistake such principled opposition for racism and flea the “increasingly extreme” GOP in droves.  Some have even gone so far as to claim that Justice Clarence Thomas must be a racist and hate himself for being black because he refuses to embrace the liberal ideology of other black leaders such as Al Sharpton and Jesse Jackson.

Neither Bond nor Minow cite any comments made by Senator Grassley or any other Republican senator during the confirmation hearings that contained any type of racial overtones.  Nor could they, because any discussion of Thurgood Marshall took place in the context of his judicial philosophy and Kagan’s apparent approval of it.  Senator Grassley made this clear in his opening statement when he argued:

In nominating you to be an associate justice, President Obama clearly believes that you measured up to his political — or his judicial empathy standard, a judge’s ability, in other words, to empathize with certain groups over others.

Indeed, President Obama said that you credited your hero, Justice Marshall, with, quote, “reminding you that behind the law there are stories — stories of people’s lives shaped by the law, stories of people’s lives as might be changed by the law,” end of quote.

This empathy standard has been soundly rejected because it endorses the application of personal politics, a preference when — and preferences when judges decide…

A judge or justice must unequivocally reject that standard…I’ll be asking you about your judicial philosophy, whether you will allow biases and personal preferences to dictate your judicial standard.

The reason these Republican senators discussed Marshall at all was to, in the words of Senator Kyl (AZ), explore whether Kagan “agree[d] with Justice Marshall’s view of the role of the court in constitutional interpretation.”  It was in this context that Senator Kyl stated:

Now, one of the things that — that I brought up in my opening statement was obviously your clerkship for Justice Marshall, and my belief that Justice Marshall’s views are more along the line of viewpoint that President Obama expressed. And you wrote about this on more than — in more than one way. Let me just cite one thing you wrote about Justice Marshall’s view, and I’m quoting now.

You said, “In Justice Marshall’s view, constitutional interpretation demanded above all else that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government, to safeguard the interest of people who had no other champion. The court existed primarily to fulfill this mission,” you wrote about Justice Marshall. And in fact, you also wrote that “if he had his way, cases involving the disadvantaged would have been the only cases the Supreme Court heard.”

No Republican senator once attacked Thurgood Marshall for his race or his career as a civil rights litigator with the NAACP.  Their concern was the activist jurisprudence he embraced once he took his seat on the bench and Kagan’s praise for it, praise that she in fact tried (unconvincingly) to back away from at her confirmation hearings.  There is nothing racist about criticizing someone’s ideology, and therefore any groundless attempt to brand such criticism as racism is simply race-baiting at its worse.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at [email protected]

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