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During her Senate hearings this week, Supreme Court nominee Elena Kagan confirmed, beyond any doubt, that she is indeed the leftist which most objective observers have always known her to be. In one of her more remarkable assertions of the week, Kagan denied that the late Thurgood Marshall, whom she identifies as one of her heroes, could properly be described as an “activist” judge. Yet this was the same Thurgood Marshall who advised judges to “do what’s right and let the law catch up”; who said that the U.S. Constitution, “as originally drafted and conceived,” was “defective” and thus in need of fundamental change; and who, in a defense of affirmative-action policies, once told William O. Douglas, “You [white] guys have been practicing discrimination for years. Now it’s our [blacks'] turn.” For whatever merits Marshall may have had as a civil-rights crusader and a jurist, he was clearly an activist on the bench.
It is noteworthy that Kagan, on other occasions, has approvingly cited Justice Marshall’s assertion that the Supreme Court must “show a special solicitude for the despised and the disadvantaged.” That perspective is entirely consistent with President Obama’s view that a Justice, first and foremost, should have “the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.” Such a mindset dovetails seamlessly with judicial activism, where courts – unfazed by the letter of the law – dole out preferential treatment to the “have-nots” and impose retributive justice on the “haves.” It was precisely this type of activism that Obama countenanced when he called the Constitution “not a static but rather a living document [that] must be read in the context of an ever-changing world.”
During her Senate hearings, Kagan candidly echoed Obama’s notion that the Constitution cannot be interpreted strictly by the “original intent” of its framers. “The constitutional law that we live under does develop over time,” Kagan said. “In [some] cases, the original intent is unlikely to solve the question, and that might be … because we live in a world that’s very different from the world in which the framers lived.” Rejecting the strict-constructionist philosophy of such sitting justices as Antonin Scalia and Clarence Thomas, Kagan also criticized Chief Justice John Roberts’ contention that a Supreme Court Justice’s job is “to call balls and strikes” like an umpire, rather than to try to dictate the course and outcome of the proverbial game.
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