TPM's Brian Beutler engages in some journalism and exposes just how unprincipled those Republicans on the Judiciary Committee, who spent the bulk of their opening statements yesterday vilifying on of the giants of modern American history, are.
After the hearing broke last night, TPMDC asked three of the top Republicans on the Judiciary Committee which of Marshall's opinions best exemplified his activism. And while two of the three were careful to praise Marshall the man, none of them could name a single case.
"You could name them," said Sen. Orrin Hatch (R-UT). Pressed, though, he could not. "I'm not going to go into that right now, I'd be happy to do that later," Hatch demurred.
Sen. Tom Coburn (R-OK) claimed it wasn't about Marshall's jurisprudence at all, but rather about how Kagan, as his clerk, drove his work on the court behind the scenes.....
Ranking Member Jeff Sessions (R-AL) came closest to citing individual cases, though ultimately fell back on a generalization.
"Perhaps the most activist decision in history, or actually it wasn't a majority decision, was Brennan and Marshall dissenting in every death penalty case because they said the death penalty violated the constitution," Sessions claimed. "The only thing it violated was their idea of what good policy was. And they just dissented on every death penalty case. And said 'based on my view that it's cruel and unusual punishment.'"
Beutler followed up by asking Sessions if McDonald v. Chicago, handed down yesterday by the Supreme Court, was an activist decision. In it the 5-4 majority, in the words of the dissent, interpreted the Constitution "as transferring ultimate regulatory authority over the private uses of firearms from democratically elected legislatures to courts or from the States to the Federal Government."
Sessions insisted it did not. "It violated the Constitution," Sessions said of the Chicago law.
How is that any different than Marshall dissenting in death penalty cases?
"Well, first you look at the Constitution as a whole....The Constitution says you can't inflict cruel and unusual punishment. Well, every state had the death penalty. It wasn't unusual. It has to be both."
There's a great legal mind at work, huh? Nice to know that decisions on who gets to serve in the judiciary are in the hands of these guys.
