Why Kagan Hearings Are All About Thurgood Marshall

She clerked and confessed admiration for the first African-American justice

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Supreme Court nominee Elena Kagan has come under an unusual line of attack from Republicans on the Senate Judiciary Committee. The Senators are going after Kagan's 1988 clerkship for former Supreme Court Justice Thurgood Marshall, the first-ever African American justice, who retired in 1991 after helping to bring the court through some of the biggest civil-rights cases in its history. Some Republicans are taking this as an opportunity not only to put Marshall on trial but also make Kagan the chief witness. Here's what's happening, why, and what it means.

  • Going After Thurgood Marshall The Washington Post's Dana Milbank reports, "'Justice Marshall's judicial philosophy,' said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, 'is not what I would consider to be mainstream.' Kyl -- the lone member of the panel in shirtsleeves for the big event -- was ready for a scrap. Marshall 'might be the epitome of a results-oriented judge,' he said. Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a 'well-known activist.' Sen. Chuck Grassley (R-Iowa) said Marshall's legal view 'does not comport with the proper role of a judge or judicial method.' Sen. John Cornyn (R-Tex.) pronounced Marshall 'a judicial activist' with a 'judicial philosophy that concerns me.'"
  • Making Everything About Marshall Talking Points Memo's Christina Bellantoni reports, "Ranking member Sen. Jeff Sessions (R-AL) criticized Kagan for having 'associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge's preferred social policies,' citing Marshall as his son, Thurgood Marshall Jr., sat in the audience of the Judiciary Committee hearings. In an example of how much the GOP focused on Marshall, his name came up 35 times."
  • Why This Is More Reasonable Than It Seems The Washington Independent's Jamelle Bouie concedes, "For my part, I'm not too surprised to see Republicans target Thurgood Marshall for attack; not only was he one of the most liberal justices in Supreme Court history, but his tenure on the Supreme Court was relatively recent. Indeed, some longer-serving GOP senators are old enough to have railed against Marshall for 'activist judging' in the 1980s or early 1990s, before he died. And while liberals might find conservative attacks on Marshall offensive, it's worth noting that they've focused their fire on his theory of jurisprudence and not his work for the NAACP. The former is untoward; the latter, genuinely objectionable."
  • ...But Still Bad Politics by GOP Liberal blogger BooMan sighs, "There is an argument that the courts are an inappropriate place to settle large societal debates and that efforts to resolve such disputes in the courts are 'judicial activism' or 'legislating from the bench.' A generous treatment of this view would hold that the Supreme Court was right to step in to resolve the civil rights era but they should intervene in that manner as seldom as possible. You might make the same argument about Roe v. Wade. But, without providing such context, the attacks on Thurgood Marshall sound like a defense of Jim Crow (or worse, slavery)."
  • What's the Underlying Message Here? Harpers' Scott Horton balks, "So what is the implicit message here? That desegregation and the civil-rights transformation of America was a bad thing? It's easy to see how such a line would appeal to a man like Jeff Sessions--who was rejected for a judgeship by the Judiciary Committee based on evidence of his own bigotry--but it's puzzling to see that it has found traction with other Republicans."
  • Do They Know He's Literally a Saint? The Washington Post's Dana Milbank wonders, "It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint -- literally. Marshall this spring was added to the Episcopal Church's list of 'Holy Women and Holy Men,' which the Episcopal Diocese of New York says 'is akin to being granted sainthood.'"
  • Just About Playing to GOP Base Liberal blogger Duncan "Atrios" Black suggests, "Since they obviously aren't planning to derail Kagan, the GOP's coordinated trashing of Thurgood Marshall is just some catnip for their base."
This article is from the archive of our partner The Wire.