Health Care

Conservatives Struggle With Key Anti 'Obamacare' Argument

Brian Beutler | March 30, 2012, 5:02AM

Justice Antonin Scalia

For the challengers' constitutional attack against the individual mandate in President Obama's health care law to withstand scrutiny, they need to maintain two key questionable arguments.

The first is the plaintiffs' claim that the law's mandate and the penalty enacted to enforce the mandate are fully distinct. Their challenge depends on the court viewing the mandate as a command, and not part of a more general incentive.

Relatedly, they claim that the command itself is meant to draw non-participants into a market they may not want to enter. For this to fly, they have to contend that the market the government is regulating -- or that Congress intended to regulate -- is the market for health insurance and not the much broader market for health care services.

This has become a central point of contention, and it could be an issue on which the court's decision turns. And yet squaring the challenger's argument with the history and purpose of the health care law presents opponents of the law with a question they've had a very hard time answering.

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Health Care

After Rough Day In Court, An Optimistic View For Supporters Of 'Obamacare'

Brian Beutler | March 27, 2012, 2:23PM

The snap reactions to today's Supreme Court arguments about the constitutionality of the health care law's individual mandate gave reform supporters a collective case of heartburn. The conservative justices seemed broadly hostile to the law's requirement that everyone carry health insurance. President Obama's Solicitor General, Donald Verrilli, was widely panned by experienced court watchers for stumbling at key moments. Jeffery Toobin -- a seasoned vet of the high court -- called it a "train wreck" for the Obama administration.

Here's some antacid.

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Health Care

Alito, Breyer Call Out Obama Lawyer For Dubbing Mandate Both A 'Penalty' And 'Tax'

Sahil Kapur | March 26, 2012, 1:39PM

On the first day of health care reform arguments before the Supreme Court, two justices needled a top Obama lawyer for simultaneously calling the fine that will be paid under the law for not purchasing insurance a "penalty" and a "tax."

The confusion arises because of the administration's argument that the power to enforce the individual mandate is rooted in Congress' taxing power -- but that the mechanism itself is designed to be a penalty, not a revenue-generating policy.

The narrow but important distinction created a communication challenge for the lawyer representing the Obama administration.

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Supreme Court

Justices Skeptical That Health Care Mandate Is A 'Tax'

Sahil Kapur | March 26, 2012, 12:49PM

The Supreme Court kicked off oral arguments over President Obama's health care law Monday by dedicating 90 minutes to the one issue on which the White House and the Republican challengers agree: The justices should hand down a speedy ruling on the constitutionality of the law this summer, rather than punt it to 2015 or beyond.

Lawyers for the Obama Justice Department and for the 26 Republican-led states challenging the law agreed that an old statute called the Anti-Injunction Act -- which forbids people from challenging taxes in court unless they've already been assessed by the government -- does not apply in this case. The Supreme Court enlisted outside counsel to make the opposite case.

The justices appeared broadly skeptical that the law's fine imposed on Americans who fail to carry health insurance qualifies as a "tax."

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Values Voter Summit

Gingrich Calls For Federal Ban On Shariah Law In US

Evan McMorris-Santoro | September 18, 2010, 12:05PM

Former House Speaker Newt Gingrich (R-GA)

The second morning of speeches at the Values Voter Summit here in DC was dominated by a man who is swiftly becoming the nation's spokesperson for Islamophobia -- former House speaker Newt Gingrich. Fresh off the release of his Islam-focused film "America At Risk," Gingrich told the crowd at VVS that it's time to take federal action to prevent Shariah Law from infiltrating courtrooms in the US.

"We should have a federal law that says sharia law cannot be recognized by any court in the United States," Gingrich said to a standing ovation from the audience. The law will let judges know, Gingrich said, that "no judge will remain in office that tried to use sharia law."

[TPM SLIDESHOW: Morals, Morals, Morals! Conservatives Gather For Values Voter Summit]

Gingrich made a not-so-subtle reference to the right wing meme about freshly-minted Supreme Court Justice Elena Kagan which claims that Kagan is "sympathetic" to Shariah and -- as some suggested during her confirmation hearings -- might allow it to be recognized as law in the United States.

But beyond the Kagan hit, Gingrich's anti-Shariah talk inserted him directly into the most extreme end of the Islamophobic push-back against mosque projects all over the country.

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Supreme Court

Leahy Floats Idea Of Bringing Former Justices Back To SCOTUS Bench

Christina Bellantoni | August 9, 2010, 4:40PM

Former Supreme Court Justice Sandra Day O'Connor, and current Justices Antonin Scalia and Stephen Breyer.

Sen. Patrick Leahy has been floating the idea of bringing former Supreme Court justices back to the bench to help decide cases where current justices might have conflicts of interest.

It's an intriguing concept in the very early idea stages, according Leahy's aides on the Senate Judiciary Committee. Leahy (D-VT) raised the idea of legislation allowing for the SCOTUS switcharoo first in the National Journal and again in more detail to the Washington Post.

Of course, the former justices in question would be more likely to side with the court's liberals.

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Federal Reserve

The Can't-Do Agenda: Six Initiatives The Senate Scrapped Ahead Of Their Recess

Brian Beutler | August 9, 2010, 8:47AM

Senator Harry Reid (D-NV), Senator Dick Durbin (D-IL)

In the rush to close up shop for August recess, the Senate had one of its most productive days in recent memory Thursday. In a matter of hours, they passed a state aid bill, confirmed Elena Kagan to the Supreme Court, confirmed dozens of other Obama nominees, including James Clapper as Director of National Intelligence, passed a border security bill, child nutrition legislation, and more.

Underneath all that, though, is a growing pile of initiatives that the Senate failed to take up. Here are the top items on the agenda the Senate didn't check off before adjourning.

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Supreme Court

Elena Kagan: I Might Not Agree With Government Every Time (VIDEO)

Christina Bellantoni | August 6, 2010, 6:04PM

President Barack Obama and newest Supreme Court justice Elena Kagan

Elena Kagan said today in a reception honoring her confirmation to the nation's highest court that she's going to be free to choose the right side of the issues -- even if it means going against her former Solicitor General's office colleagues.

Kagan, scheduled to be sworn in as a Supreme Court associate justice Saturday morning, was confirmed Thursday by the Senate. Today at the White House with President Obama at her side, Kagan said she enjoyed meeting "with 83 senators -- but really who's counting?" The crowd laughed.

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Supreme Court vacancy

Senate Confirms Kagan: Obama's Second SCOTUS Pick Approved

Christina Bellantoni | August 5, 2010, 3:50PM

Elena Kagan

Elena Kagan was confirmed as the newest Supreme Court justice today, with senators voting 63-37 to approve President Obama's second nominee to the high court. Her confirmation will put three women on the bench for the first time ever -- a statistic that Senate Majority Leader Harry Reid hailed as "real progress" on the Senate floor before his colleagues took the rare step of casting their votes from their desks.

The Democrats were nearly united in support, with only Sen. Ben Nelson (D-NE) voting "No." There were 5 Republicans who voted "Yes," breaking with the majority of their party.

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Supreme Court vacancy

Scott Brown To Oppose Elena Kagan

Christina Bellantoni | August 5, 2010, 1:02PM

Senator Scott Brown (R-MA)

Sen. Scott Brown (R-MA) will vote against Elena Kagan's confirmation to the U.S. Supreme Court this afternoon, the freshman announced in a statement. Brown said he does not believe Kagan has enough experience since she hasn't served on the bench.

Brown said Kagan lacks "both" practical courtroom experience and having served on the bench, which he said was his main concern.

Brown has been a sometimes-vote for the Democrats, and as recently as yesterday aides said they believed he would be backing Obama's nominee. As we've written, Brown has crossed party lines several times.

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Supreme Court

Nelson: Kagan Less Popular In Nebraska Than Sotomayor

Brian Beutler | August 3, 2010, 9:22AM

Sen. Ben Nelson (D-NE)

After having supported the nomination of Supreme Court Justice Sonia Sotomayor, Sen. Ben Nelson (D-NE) has decided not to support President Obama's second SCOTUS pick, Solicitor General Elena Kagan. Last night, in response to questions from TPMDC, he explained his differing decisions.

"[She's] just not been able to give people comfort," Nelson said. "The calls have been running -- there's a constituency not to vote for her. There's not a strong constituency to vote for her."

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IL-SEN

Mark Kirk: I Support Elena Kagan's Nomination For SCOTUS

Eric Kleefeld | July 23, 2010, 11:23AM

Rep. Mark Kirk (R-IL)

Rep. Mark Kirk (R-IL), the GOP's nominee for the Illinois Senate seat formerly held by President Obama, has now stated his support for the Supreme Court nomination of Elena Kagan, and that he would vote to confirm her if he were in the Senate right now. The move is seemingly a part of Kirk's effort to appeal to voters in the center, having worked hard to present himself as a moderate and independent-minded Republican.

"With regard to Solicitor General Kagan, I would support her nomination. Ms. Kagan appears to be modest and thoughtful not because she expected this nomination but because she is modest and thoughtful," Kirk said in a statement. "Under the Constitution, only the President can make this nomination and Solicitor General Kagan is one of the more careful nominees he could have picked."

The TPM Poll Average gives Kirk a narrow lead of 41.3%-38.9% over Democratic state Treasurer Alexi Giannoulias. Both candidates have suffered from bad publicity. In Giannoulias's case, it's the failure of his family's bank, and for Kirk it's his history of having made false statements about his military service.

Supreme Court vacancy

Judiciary Committee Approves Elena Kagan's Supreme Court Nomination

Christina Bellantoni | July 20, 2010, 12:29PM

Supreme Court nominee Elena Kagan

The Senate Judiciary Committee today approved the nomination for Solicitor General Elena Kagan to serve on the Supreme Court, voting 13-6 and teeing up a floor fight over President Obama's second nominee for the high court. Her confirmation would mark the first time in history the court would include three women.

All of the committee's Democrats voted in favor of Kagan's nomination. All but one of the committee's Republicans opposed her. Sen. Lindsey Graham repeated his role from last summer's Sonia Sotomayor confirmation by being the lone Republican to back the nominee. Graham (R-SC), targeted by the tea party as a potential swing vote, said "There's plenty of reasons for a conservative to vote no, but there are plenty of reasons for a conservative to vote yes."

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Supreme Court vacancy

Lindsey Graham To Support Kagan: 'Plenty Of Reasons For A Conservative To Vote Yes'

Christina Bellantoni | July 20, 2010, 11:31AM

Supreme Court nominee Elena Kagan and Senator Lindsey Graham (R-SC)

Sen. Lindsey Graham said this morning he will buck the majority of Republican senators to vote for Elena Kagan's nomination to the Supreme Court. Graham (R-SC) announced his intentions before the committee was to approve the nominee and send Kagan's nomination to the full Senate.

"What's in Elena Kagan's heart is that of a good person who adopts a philosophy that I disagree with," Graham said after other Republicans criticized Kagan, the solicitor general, as lacking judicial experience. "There's plenty of reasons for a conservative to vote no, but there are plenty of reasons for a conservative to vote yes."

"She is a loyal American, very patriotic," Graham said after detailing her record on military issues. He said Kagan was "smart" and "funny" and that shows "you are pretty comfortable with who you are." He added, "she's liberal." Graham also said Miguel Estrada's letter in support of Kagan hit him "hard" and factored into his decision. During her confirmation hearings, Graham and Kagan discussed Estrada's legal career and she agreed to write a letter recommending him for the high court. Today, Graham read aloud from Kagan's letter, which called Estrada a "towering intellect."

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Health care lawsuits

Sessions Challenges Kagan Over Health Care Reform Suits (VIDEO)

Christina Bellantoni | July 15, 2010, 8:45AM

The Supreme Court building, Supreme Court nominee Elena Kagan, the Caduceus, and Senator Jeff Sessions (R-AL)

We saw this one coming, but Sen. Jeff Sessions finally has given the most explicit description yet of why he thinks Supreme Court nominee Elena Kagan has a problem when it comes to health care reform.

Sessions (R-AL), the ranking member on the Senate Judiciary Committee (which is tasked with Kagan's nomination next Tuesday), is now suggesting that Kagan can't sit on the bench and decide on state challenges to health care reform because as solicitor general, she must have spoken with the Obama administration about the lawsuits.

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Supreme Court vacancy

Tea Party Targets Lindsey Graham Over Kagan

Christina Bellantoni | July 14, 2010, 1:25PM

Supreme Court nominee Elena Kagan and Senator Lindsey Graham (R-SC)

Tea party activists are claiming victory over the one-week delay until Solicitor General Elena Kagan receives a vote in the Senate Judiciary Committee, and one group is going after Sen. Lindsey Graham (R-SC) as the most likely GOP "Yes" vote to confirm Kagan to the Supreme Court.

"This gives us more time and we must not fail. We must keep calling Senators and tell them to stop Kagan," Tea Party Nation wrote supporters in an email obtained by TPM Organizers misspelled Graham's name, then said he's "the most likely" to support Kagan's nomination.

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Supreme Court vacancy

Kagan: I'm Not A Socialist And Can't Remember All The Dumb Memos I Wrote

Christina Bellantoni | July 13, 2010, 1:33PM

Supreme Court nominee Elena Kagan and Senator Tom Coburn (R-OK)

The Senate Judiciary Committee today agreed to delay the vote to approve Solicitor General Elena Kagan's nomination to the Supreme Court for another week. Republicans argued -- as expected -- they needed more time to review the answers Kagan submitted to their questions for the record after her hearings earlier this month.

TPM read through the dozens of questions and answers so you don't have to. While most of the answers were a little, well, dry, we've collected the Top 5 most noteworthy below.

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Supreme Court vacancy

Senate's Summer Session Gets Shorter: GOP Plans To Delay Kagan Vote

Christina Bellantoni | July 12, 2010, 4:13PM

Senator Jeff Sessions (R-AL)

Here we go. Despite the precious little time left for Congress to get anything done, Republicans tomorrow will ask for the committee vote on Supreme Court nominee Elena Kagan to be delayed for an additional week.

Hotline on Call reported this afternoon that Republican aides plan to ask for the delay tomorrow when the Judiciary Committee arrives for the planned vote on Kagan. GOP aides haven't yet confirmed this for TPM, but Sen. Jon Kyl may have tipped his hand yesterday on "Fox News Sunday."

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Supreme Court vacancy

Guess Who's Opposing Kagan? Endangered Republican Incumbents

Christina Bellantoni | July 8, 2010, 3:21PM

(Clockwise, from top left) Senators Johnny Isakson (R-GA), John McCain (R-AZ), Robert Bennett (R-UT), Orrin Hatch (R-UT), Lisa Murkowski (R-AK) and Mitch McConnell (R-KY).

Can you guess why eight Republican senators -- including one who backed her for solicitor general -- are opposing Elena Kagan's nomination to the Supreme Court? In the year of the tea party, it's perhaps not so hard to figure out. Most of them are facing, have faced or might eventually face voters who think that they aren't conservative enough.

Sens. Jim DeMint (R-SC) and James Inhofe (R-OK), both of whom announced their opposition already, were probably always going to vote against Kagan anyway. But the other senators who have made their disapproval public have, at times, been considered of a more moderate persuasion. Sens. Johnny Isakson (R-GA), John McCain (R-AZ), Robert Bennett (R-UT), Orrin Hatch (R-UT), Mitch McConnell (R-KY) and Lisa Murkowski (R-AK) have something in common besides their already announced "No" votes on Kagan -- political targets on their back.

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Elena Kagan

Hatch Will Vote Against Kagan Nomination

Jillian Rayfield | July 2, 2010, 10:20AM

Sen. Orrin Hatch (R-UT)

Sen. Orrin Hatch (R-UT) will vote against Elena Kagan's nomination to the Supreme Court, according to a statement he released today.

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Supreme Court vacancy

Grilling Ms. Kagan -- The 7 Toughest Questioners At SCOTUS Hearings (VIDEO)

Christina Bellantoni | July 1, 2010, 5:47PM

(Clockwise from top left) Senators Arlen Specter (D-PA), Tom Coburn (R-OK), Russ Feingold (D-WI) and Lindsey Graham (R-SC) question Supreme Court nominee Elena Kagan (center, inset).

It wasn't quite a supreme grilling, but some of the Judiciary Committee's members were surprisingly tough on Solicitor General Elena Kagan this week. Although at first the Republicans spent their time deriding Thurgood Marshall as a so-called "activist judge," by day three they took up all the hot button social issues they had largely ignored in the first round of questions.

Since Kagan's testimony is complete -- Chairman Pat Leahy told her it was "The last time you'll ever have to be in a public hearing before the Senate Judiciary Committee." -- TPM rounded up the toughest questioners. They might just surprise you, since some Democrats gave Kagan as hard a time as their colleagues across the aisle.

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Elena Kagan

Young Conservatives Rage Against The D.C. Machine At Anti-Kagan Rally

Evan McMorris-Santoro | July 1, 2010, 4:31PM

Youth protest against Supreme Court nominee Elena Kagan.

About 50 young conservatives gathered outside the Supreme Court today to protest what they say will be one of the defining political moments of their generation -- the nomination of Elena Kagan to the U.S. Supreme Court. The only truly organized "national" protest of the Kagan nomination in D.C. this week, the event was put together by a of coalition of groups representing the right-wing youth of America -- Young Americans for Freedom, the Young Conservatives Coalition and the GOP Youth Convention.

For about an hour, they raged against the machinery that most political watchers agree will confirm Kagan's appointment to the Court by the end of the summer. And they took time to throw a few punches at Republicans and other conservatives they say aren't fired up enough by the Kagan proceedings.

"The fact of the matter is, years and years of college indoctrination and high school indoctrination has made Americans impartial," the 16-year-old YAF high school coordinator, Naphtali Rivkin, told me. "It's a real problem."

Rivkin was referring to the millions of conservatives he and others said should be upset by the Kagan nomination, but didn't bother to show up and make their anger known.

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Elena Kagan

Right-Wing Youth Group Rallying Against Kagan Today

Evan McMorris-Santoro | July 1, 2010, 9:27AM

Protesters outside the US Supreme Court building.

Right-wing youth will gather in D.C. at 12:30 today to call on the Senate not to confirm Elena Kagan to the Supreme Court. The event, hosted by the conservative Young Americans for Freedom, will include speeches by leaders from the libertarian CATO Institute, the Heritage Foundation and the tea party movement.

The event, coming four days into the Kagan hearings and after the end of Kagan's public testimony before Congress, is the first organized demonstration for or against Kagan this week. So far, the hearings have been relatively controversy-free (outside the hearing room that is), with only Capitol Hill mainstay Randall Terry and his followers showing up each day to attack Kagan over abortion rights.

Today's protest also includes talk of abortion, but will focus on other conservative attacks on Kagan as well.

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Elena Kagan

Lindsey Graham Goes After Kagan On Abortion Rights (VIDEO)

Megan Carpentier | June 30, 2010, 4:33PM

Senator Lindsey Graham (R-SC) grills Supreme Court nominee Elena Kagan

Lindsey Graham, a self-described supporter of the rights of the unborn, went after Supreme Court nominee Elena Kagan today over her views on abortion rights and, more importantly, her understanding of Roe v. Wade and how medical advancements might change the historic Supreme Court decision.

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Supreme Court vacancy

Kagan Dodges Gay Marriage Question (VIDEO)

Christina Bellantoni | June 30, 2010, 2:52PM

kagan confirmation hearing with Grassley

Social issues were noticeably absent from the first round of questions at the confirmation hearings, but it's been abortion and gay marriage hour so far in round two. A telling exchange came between Sen. Chuck Grassley (R-IA) and Elena Kagan as he asked her if states can decide marriage issues.

Kagan said she didn't want to talk about something that may very well appear before the Supreme Court. "I want to be extremely careful about this question and -- and not to in any way prejudge any case that might come before me," she said.

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Supreme Court vacancy

What Culture Wars? Five Hot-Button Topics Lacking At Kagan Hearings

Christina Bellantoni | June 30, 2010, 11:51AM

Supreme Court nominee Elena Kagan and an anti-abortion protester.

Close watchers of Elena Kagan's confirmation hearings will notice that the Citizens United campaign finance decision and gun rights issues have been among the most frequent lines of discussion. But anyone familiar with earlier epic Supreme Court confirmation battles and the culture wars that groups claim they are fighting through the nomination process are probably left feeling a bit lacking this week.

TPM has been keeping track, and it's a little surprising how few times the Judiciary Committee has talked about major issues. The first questioning just wrapped up and it's on to round two. But here's a summary of what hasn't been discussed after three days and nearly 15 hours of testimony.

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Elena Kagan

Twilight Fan Amy Klobuchar Grills Elena Kagan on Edward v. Jacob (VIDEO)

Megan Carpentier | June 30, 2010, 11:24AM

(Clockwise, from top left) Supreme Court nominee Elena Kagan, Jacob Clark of Twilight (played by Taylor Lautner), Senator Amy Klobuchar (D-MN), and Edward Cullen of Twilight (played by Robert Pattinson).

Although Supreme Court nominee Elena Kagan doesn't need anyone else to help provide moments of levity in the otherwise interminable confirmation process, Twiharder Sen. Amy Klobuchar (D-MN) did her darndest to keep up and be culturally relevant at the same time. Klobuchar asked Kagan the ultimate question of our time: Edward or Jacob?

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Elena Kagan

Last Justice Standing: Kagan's Five Funniest Moments On Tuesday

Evan McMorris-Santoro | June 30, 2010, 9:16AM

Supreme Court nominee Elena Kagan

Supreme Court nominee Elena Kagan is a funny lady. Facing a somewhat skeptical Republican contingent on the Senate Judiciary Committee yesterday, Kagan slayed 'em in the aisles with a nearly nonstop stream of sarcasm and wit.

There were a lot of important issues discussed yesterday, and a lot of digging into Kagan's legal philosophy. But the main takeaway from the first day of questions and answers for Kagan was the nominee's ability to knock 'em dead.

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Elena Kagan

Lindsay Graham Asks Elena Kagan If He Sucks (VIDEO)

Evan McMorris-Santoro | June 29, 2010, 5:43PM

Senator Lindsey Graham (R-SC)

Today's Senate does not suck as much as the Senate of old. That's something on which Sen. Lindsay Graham (R-SC) and Supreme Court nominee Elena Kagan can apparently agree.

In one of the many lighter moments in today's confirmation hearings, Graham asked Kagan what she thought of the hearings so far, making reference to her widely-cited 1995 book review calling the modern confirmation process "a vapid and hollow charade."

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Elena Kagan

Grassley Asks Kagan: Didn't God Give Us The Right To Bear Arms? (VIDEO)

Megan Carpentier | June 29, 2010, 5:42PM

Senator Chuck Grassley (R-IA)

Usually, in a confirmation hearing for a Supreme Court nominee, the discussion of the Second Amendment comes down to a debate over whether the amendment guarantees an individual or collective the right to bear arms. One might think the matter was settled in Congress since Supreme Court rulings in Heller and McDonald leave the individual right to bear arms, as Elena Kagan said earlier today, "settled law." However, having a settled constitutional question left Sen. Charles Grassley (R-IA) with an opening to question whether the right to bear arms come from more than just the constitution. He wanted to know, in fact, whether it came straight from God.

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Elena Kagan

Jeff Sessions Uses Camera Time To Call Elena Kagan A Liar

Evan McMorris-Santoro | June 29, 2010, 3:57PM

Supreme Court nominee Elena Kagan and Senator Jeff Sessions (R-AL)

Sen. Jeff Sessions (R-AL) spent the second morning of Elena Kagan's Supreme Court nomination hearing showcasing all the ways a person can call someone else a liar without actually saying the word. It was a tour de force in Washington-speak, but it also showed Sessions' -- the top Republican on the Judiciary Committee -- Wilsonian plan of attack when it comes to Kagan: she lies.

Sessions' claims center around Kagan's time as Dean of Harvard law school and the access military recruiters had on campus during part of her time there. Republicans allege that Kagan denied those recruiters any access to the law school campus or her students. Kagan has said -- and said again today -- that she was balancing Harvard's strict anti-discrimination policy and the law regarding recruiting access as it was understood at the time.

Session's response, essentially? You're a liar.

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Supreme Court vacancy

Kagan Sounds More And More Like Safe Vote For Gun Rights

Christina Bellantoni | June 29, 2010, 2:46PM

Handguns and Supreme Court nominee Elena Kagan

The first questions about gun rights during Elena Kagan's confirmation hearings today came not from Republicans -- who always attempt to make the Second Amendment an issue -- but from Democrats. Kagan quickly ended the line of inquiry by declaring citizens' rights to own guns as "settled law."

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Citizens United

Sessions Compares Citizens United To Landmark Civil Rights Case

Brian Beutler | June 29, 2010, 10:50AM

Sen. Jeff Sessions (R-AL)

With all the discussion at Elena Kagan's confirmation hearing of the recent Supreme Court ruling in the Citizens United case, many Americans are probably in need of an easy primer to understand the decision, which holds that corporations, like individual citizens, can make unlimited political contributions. According to Sen. Jeff Sessions (R-AL), the top Republican on the Judiciary committee, it's just like the time the Supreme Court desegregated public schools!

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

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Supreme Court

GOPers Who Slammed Marshall's Activism Can't Name A Case Typifying It

Brian Beutler | June 29, 2010, 10:26AM

Senators Orrin Hatch (R-UT), Tom Coburn (R-OK) and Jeff Sessions (R-AL)

Republicans raised eyebrows yesterday when they criticized the first African-American Supreme Court justice, Thurgood Marshall, as a way to attack nominee Elena Kagan, his former clerk. One would think that, to avoid any appearance of racial dog-whistling, the senators attacking Marshall's record would be able to name the decisions or opinions with which they so vociferously disagreed.

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.

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