The Senate will probably soon confirm Elena Kagan to sit on the Supreme Court, said Dana Milbank in The Washington Post—“but Thurgood Marshall can forget it.” During Kagan’s confirmation hearings last week, Senate Republicans focused their scorn not on Kagan herself but on her mentor, the late civil-rights hero Justice Marshall. Sens. Jon Kyl, John Cornyn, Orrin Hatch, et al., brought up Marshall’s name no fewer than 35 times on the first day of hearings, said Dahlia Lithwick in Slate.com, “deriding him as a ‘judicial activist,’” and it’s hard to fathom their motivation. Kagan clerked for Marshall and still admires him, but, as she quite easily explained, that doesn’t mean their judicial philosophy is identical. So the real question here is this: Why did Republicans choose to attack a legal giant who argued Brown v. Board of Education as a lawyer and later served as the first African-American justice on the court?
Marshall is rightly venerated for his “great accomplishments” as a civil-rights attorney, said Ed Whelan in National Review Online. But it was totally legitimate for Senate Republicans to challenge Marshall’s frankly stated belief that a judge should reflexively side with the poor and the downtrodden, rather than humbly rely on the law. Indeed, in a tribute to Marshall, Kagan once praised his belief that judges should “show a special solicitude for the despised and disadvantaged,” calling that belief “a thing of glory.” During the hearings, Kagan tried to back away from those words, and from Obama’s infamous “empathy” standard. But by demonstrating Kagan’s deep connection to Marshall, Republicans revealed that she’s a closet liberal, not a centrist.
Let’s be honest about what was really going on here, said Sherrilyn Ifill in TheRoot.com. Kagan herself has too moderate a record for Republicans to portray her as a dangerous leftist. Yet attack someone they must, because the GOP needs to convince supporters and donors that “liberal judicial activism” poses a grave threat to the American way of life. And by “injecting race” into these hearings, the GOP sought to “remind the right-wing base of the GOP what these hearings are really all about”: the great culture war that started with the civil-rights movement and continues to this day. Hey, the GOP was saying, they are the party of Thurgood Marshall, Barack Obama, and unmarried female Jewish intellectual lawyers—so you’d better vote for us.