Trashing Thurgood Marshall

Just because Elena Kagan is white didn't stop Republicans from injecting race into her Supreme Court confirmation hearings.

Brendan Smialowski/Getty Images
Brendan Smialowski/Getty Images

The second day of the confirmation hearings of Elena Kagan to the U.S. Supreme Court was marked by some substantive dialogue, respectful banter and even an exchange of ethnic humor between the nominee and members of the Senate Judiciary Committee. Republicans and Democrats alike seemed to have forgotten the previous day’s tensions.  But for many of us who’d sat in stunned silence while Republicans members of the committee used their opening statements to unleash an orchestrated disparagement of the record and legacy of Supreme Court justice and civil rights icon Thurgood Marshall, the wounds still felt raw.

The invocation of Marshall (35 times by Republicans) was a surprising new low, even for the shameless opportunism of modern confirmation hearings. At first it seemed astonishing as senator after senator — Jeff Sessions (R-Ala.), Jon Kyl (R-Ariz.), John Cornyn (R-Texas) — disparaged nominee Kagan’s “association” with Thurgood Marshall. But the abandonment of the “Marshall as slur” tactic on day 2 suggests that the Republican senators’ opening-day sucker punch may have backfired.

For Republicans, the issue of race is good for confirmation hearings. Last year’s hearings for Justice Sonia Sotomayor proved an important turning point for congressional Republicans, who were uncertain in the first months of the Obama presidency how to handle their opposition to the new, popular, African-American president. It seems a long time ago now, but just last spring, Americans were still genuinely caught up in the transformative moment symbolized by the election of the first black president. In the heady early months of the Obama presidency, when many thought we might be heading for a post-racial America and things seemed so magical that a plane could land on the Hudson River with all passengers unharmed, Republicans were in a quandary. How should they package their opposition to the president without ruining the public’s good racial mood? The election of Michael Steele as chair of the Republican National Committee — an action that has since generated considerable buyer’s remorse — revealed the desperate effort by some GOP stalwarts to navigate the shoals of the new racial politics. That was before health care town halls and the emergence of the Tea Party.

Indeed, the president’s nomination of Judge Sonia Sotomayor to the Supreme Court and the discovery of her “wise Latina” remarks gave congressional Republicans their land legs. Critiques of Justice Sotomayor as a racial partisan allowed some Republicans to recycle old-school racial tropes. Obama and Sotomayor were painted as a kind of tag-team black-Latino duo of racial-quota champions, preparing to take away the jobs and educational opportunities of hardworking whites like firefighter Frank Ricci. By the time the Sotomayor hearings were over, the bloom had faded from the Obama rose and we were full into the volatile town halls. President Obama’s angry off-the-cuff reaction to the arrest of Harvard Professor Henry Louis Gates Jr. (The Root’s editor-in-chief) by an overzealous white police officer, and the much derided “beer summit,” helped cap what turned out to be a very good summer for the Republican Party.

So when President Obama nominated Solicitor General Kagan to the bench, Republican senators on the Judiciary Committe faced an understandable dilemma.  Kagan is a pragmatic centrist, admired by a number of high-profile conservatives. She’s not a person of color, and she has no track record as a civil rights lawyer or champion.  She has never been inclined to give inflammatory partisan statements, and even her work in the Clinton administration reveals Kagan to be a careful compromiser rather than liberal firebrand. On her record, Kagan leaves little for Republicans to attack. But the Republican base understands better than its Democratic counterpart the significance of Supreme Court nominations to the goals and aims of the party, and so Republicans are able to talk to their core constituency through confirmation hearings in ways that Democrats cannot. Race, class and culture divisions are themes that some Republican senators turn to again and again at confirmation hearings. They do this by invoking the specter of out-of-touch elites, unqualified racial minorities, the dangers of international law, and equal rights for gays and lesbians.