By the third day of a confirmation hearing, opposition senators quickly start to sound like broken records, having used all their A-List attacks during the first round of questioning. Moreover, since yesterday’s attacks on Kagan were such “thin gruel,” yesterday’s attacks on General Kagan barely even registered, and most of the Republicans’ time was spent on questions that Kagan had already answered.
Nevertheless, two very clear, and very different visions of the Constitution were on display yesterday. Throughout the hearings, conservatives criticized civil rights icon and former Supreme Court Justice Thurgood Marshall as a judicial activist. Sen. Al Franken (D-MN) explained at length why Marshall is no activist, pointing out that Marshall’s well known battle against “prejudice against discrete and insular minorities” has firm roots in the Constitution.
Likewise, progressives offered their own vision of what it means to be a judicial activist. While their more conservative colleagues largely offered empty platutes about “legislating from the bench,” progressive senators focused heavily of Roberts Court decisions permitting limitless corporate influence on American democracy, forcing consumers and workers into a secret, privatized court systems and ignoring laws protecting women from pay discrimination and older workers from age discrimination as paradigm examples of activist decision making. By the end of yesterday’s testimony, the conservatives looked beaten down.
Nothing exemplified the difference between these two competing visions of the Constitution more than an exchange between Sens. Tom Coburn (R-OK) and Amy Klobuchar (D-MN). Referencing the Affordable Care Act, Coburn lectured Kagan about how Americans are “losing freedom,” and how we were more free “30 years ago.” Klobuchar then pointed out that, 30 years ago, there were no women on the Supreme Court, no women on the Judiciary Committee, and only one woman in the Senate. What freedom means, say Klobuchar, is in the “eyes of the beholder.”
So it’s clear that progressives have finally found their voice on the judiciary, and it is a voice which declares that “freedom” does not mean the freedom to be ill, the freedom to be discriminated against, or the freedom to have your leaders chosen for you. But one week of clarity will not be enough to take back the judiciary. Conservatives worked very hard for a very long time to seize control of the courts. If progressives want to take them back, yesterday should be the first step in a very long journey.