Update @ 1:53: Indeed, the GOP members of the Judiciary Committee haven’t failed to use opening statements to not so much rail at Kagan—though, they’re certainly taking swipes—but to huff and puff against lefty judicial activists like…Thurgood Marshall. Arizona Sen. Jon Kyl has taken this idea the furtherst, going on at length about Marshall’s apparently frightening judicial philosophy. Marshall now-famously declared of his approach, “You do what you think is right and let the law catch up.” That sounds like a pretty good description of the current court’s temperament as well. But Kyl and company will use Kagan’s hearings as yet another opportunity to define today’s judicial activism as reflecting normative legal values—and Marshall’s as radical. This is exactly what we’re talking about in terms of narrowing and skewing rightward the frame for what’s an acceptable judge.
Elena Kagan’s confirmation hearings to become the fourth woman to serve on the Supreme Court start this afternoon. It’s clear the GOP isn’t going to make a real effort to undo Kagan. She’s certain to be nominated comfortably, as long as she ignores her own academic writing, in which she called the confirmation process a farce, and says little of substance to her interrogators. But Kagan is less the point than confirmation hearings themselves, which now represent big opportunities for both political parties to rally the base and raise money. Alabama Sen. Jeff Sessions may sound crazy to many ColorLines readers when he tries to tar Kagan by her association with Thurgood Marshall. But the southern-right base to which he’ll be speaking when questions he Kagan will think Sessions is right on target.
So, we’ll take a page out of the Sessions playbook and take the opportunity of Kagan’s hearings to make a separate point: The range of legal minds who are considered acceptable high court nominees has become exceptionally narrow and skewed rightward. Liberal scholars like Goodwin Liu no longer can be taken seriously as nominees, while far-right originalists are uncontroversial. So this spring, as we awaited Obama’s pick to replace retiring Justice John Paul Stevens, ColorLines asked some of our favorite court watchers to think wild and come up with a list of people they’d love to see on the court—but who’d never be mentioned seriously as nominees. Check it out again today.