Bashing Thurgood Marshall: Reactionary and Racist Republican Framing



The Republican Party’s leaders demonstrated once again early this week that they are still moving against the demographic shift in U.S. society—that huge shift in which Americans of color are growing in numbers, political influence and power, and impact on the society’s goals and policies.

Apparently, the white male Republican senators could not find much to use to attack President Obama’s Supreme Court nominee, Ms. Kagan, so they decided to attack prominently her mentor, Supreme Court justice and former NAACP lead attorney, Thurgood Marshall—as well as his social justice and human rights orientation to U.S. law and society. By one count Marshall’s name came up in the first day of hearings 35 times, more than twice as often as President Obama’s name. Almost certainly this Republican strategy is designed to appeal to negative views in the white racial framing of African Americans and the civil rights movement among their white supporters.

One of the top two Republicans in the U.S. Senate, Sen. Jon Kyl (from immigrant-bashing Arizona), argued in the confirmation hearing that

Justice Marshall’s judicial philosophy is not what I would consider to be mainstream …. [He might be the epitome of a results-oriented judge.

Kyl made this further comment about Marshall and Kagan that reveals how far the Republican party has moved to the defend the concerns of whites, especially conservatives and the affluent:

Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have ‘a keen understanding of how the law affects the daily lives of the American people … and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens. Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog.

Isn’t the public myth about the U.S. that it celebrates “liberty and justice” for all? Especially for the “underdog”? So, Marshall’s liberty and justice perspective is not “mainstream,” which of course suggests that African Americans and their view of these social justice matters – and others of this bent — are also not mainstream. Clearly, this was a coordinated and planned attack on judicial decisions attempting to liberate the U.S. from Jim Crow racism and its current consequences, as well as other important decisions of a liberal court in a brief period between Marshall’s nomination by President Lyndon Johnson in 1967 and the more reactionary court soon followed by the mid-1970s.

Sen. Jeff Sessions (Ala.), thus, added to the attack with the comment that Marshall was a “well-known activist,” and then

Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view “does not comport with the proper role of a judge or judicial method.” Sen. John Cornyn (R-Tex.) pronounced Marshall “a judicial activist” with a “judicial philosophy that concerns me.”

I guess they decided to use similar talking points in a coordinated attack on the U.S. civil rights revolution of the 1960s and early 1970s, and on its key legal figure. If this was not enough, they had their staff members pass out a list of Marshall’s violations of the Republican perspective:

Justice Marshall endorsed ‘judicial activism,’ supported abortion rights, and believed the death penalty was unconstitutional.

Sen. Orrin Hatch (R-Utah) was a bit more circumspect in his comment on MSNBC on that Monday:

no doubt he was an activist judge. Let’s admire the man for the great things he did, but let’s not walk over and wipe out the things that really didn’t make sense as an obedient student of the practice of law.

Dana Milbank at the Washington Post points out the political risk of going after the

first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint — literally. Marshall this spring was added to the Episcopal Church’s list of “Holy Women and Holy Men….”

There is a greater longterm political risk as well. The attack on a US political and legal philosophy that seeks liberty and justice for all, that has a “determination to protect the underdog,” shows a callous disregard for many Americans, especially in many groups of color, who have yet to achieve anything close to social justice and the American dream.

NOTE: Only 11 Senators voted against Thurgood Marshall for confirmation, all southerners (and Democrats) except the recently deceased Robert Byrd (D-WVa). Only one Republican, a recent Democratic turncoat, Thurmond (SC) voted against him. Twenty senators, mostly southerners abstained.

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