Update @ 12:22 ET: Elena Kagan finally seems to have run out of patience with the Thurgood Marshall line of attack (which, again, is bizarre given her thin civil rights record). Arizona Sen. Jon Kyl’s questions today followed up on his obsession with Marshall in yesterday opening statements. As Kyle wound into his Marshall questions, Kagan snapped back that, if she’s confirmed, “You’ll get Justice Kagan, you won’t get Justice Marshall.”
Kyl persisted, again raising the famous Marshall quote that his judicial philosophy is to “do what you think is right and let the law catch up.” Kagan parried tartly, “I actually never heard Justice Marshall say that,” but rather saw it attributed to a clerk. Either way, she added, “Justice Marshall was a man who spent many decades of his life fighting for the eradication of Jim Crow segregation and you can kind of see why he would work as hard as he can” to make the law “catch up.”
Alabama Sen. Jeff Sessions delivered on expectations that he’d be the Republican bad guy at Elena Kagan’s hearings this morning, while Sen. Orrin Hatch used Kagan as a sounding board for his lengthy defense of the Roberts court’s Citizens United ruling. But the big story remains the Republicans’ decision yesterday to tar Kagan by association with Thurgood Marshall. Washington Post columnist Dana Milbank rounded up the thrusts succinctly:
“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.”
As the Republicans marshaled their anti-Marshall forces, staffers circulated to reporters details of the late justice’s offenses: “Justice Marshall endorsed ‘judicial activism,’ supported abortion rights, and believed the death penalty was unconstitutional.”
Milbank and others have found the approach bizarre. As the famously snarky Milbank quipped, perhaps Nelson Mandela and Mother Teresa are next on the GOP hit list. And as Dom Apollon wrote in ColorLines, all the talk about Kagan and Marshall is particularly strange given that Kagan’s career bears no resemblance to Marshall’s judicial philosophy. But the Republican senators are swiping at Marshall for good reasons—at least for both their short-term political strategy and long-term effort to game the judicial confirmation process.
In the immediate, the Kagan-as-Marshall line of attack is just the latest example of the modern GOP’s hearty embrace of the southern strategy. From John McCain’s presidential campaign forward, the party has plainly calculated that its future turns on a motivated—read: scared and angry—southern, white base. When they thrash at Marshall, they’re not speaking to Kagan, their Senate colleagues or national journalists. They’re speaking to the base, where few legacies would be more villainous than Marshall’s. Brown and Marshall’s subsequent role on the bench represent the ultimate example of using federal authority to disrupt the corrupt local power bases.
But there’s a bigger, more lasting picture as well. The Republican Senators aim not to assault Kagan but to skew the definition of a non-controversial nominee further still to the right. The goal remains to define an originalist interpretation of the Constitution as a mainstream idea. Marshall would seem the most obvious proof of that view’s flaws—as Kagan implied in her opening statements, Marshall’s understanding of the law as a work-in-progress informed his leadership in killing off Jim Crow. Nonetheless, you can’t defend strict originalism without first discrediting Marshall’s supposed activism. And nobody ever accused today’s right of being afraid of swinging for the fences. So here we are, arguing over whether Thurgood Marshall was a dangerous judicial radical.
It’s also a fight the Democrats have picked. The Roberts court surely is a standout as an example of an activist court, ranging from Citizens United through to this week’s gun control ruling, it has reached out to change the law as meets the rightwing justices’ perspectives. As Slate’s Dahlia Lithwick wrote, Democrats have done their best to use the Kagan nomination to put that record on trial. The Republican attack on Marshall is, in part, the GOP’s counter.
Photo: Getty/Mark Wilson