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.
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
- ...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
- 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
- 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."
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