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Elena Kagan: Would she turn Supreme Court into We the People?

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But would justice be served any differently if the court looked more like America? As the US political process has grown more pluralistic, that question is complicated by the debate about whether justice can be completely blind and adhere to the letter of the law as if it was unambiguously laid down by the Founding Fathers, or whether modern reality suggests that a justice's background and life experience can fairly factor into a modern interpretation of a 223-year-old Constitution.

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What one looks like is not a proxy for what one believes, warned Justice Thurgood Marshall at his retirement press conference in 1991. Responding to a reporter's question about whether President George H.W. Bush had any obligation to name a minority candidate to succeed Justice Marshall, the nation's first African-American justice said, "My dad told me way back that you can't use race. For example, there's no difference between a white snake and a black snake. They'll both bite."

He meant that race should not be used as an excuse for "doing wrong"; rather it should be a factor to consider in the broader effort to "pick the best person for the job." And, for Marshall, "doing wrong" meant contributing to the increasingly conservative Supreme Court's dismantling of liberal landmarks he'd helped build as a lawyer and justice.

By those definitions, Marshall suggested, Bush's nominee, Clarence Thomas, was "the wrong Negro" to succeed him, where there was a direct line between his experiences as a black man in America to his votes in favor of affirmative action and against the death penalty. Indeed, Justice Thomas's strict originalism – adherence to a literal interpretation of the Constitution – certainly changed the direction of the court's so-called "black" seat.

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