Trashing Thurgood Marshall
Just because Elena Kagan is white didn't stop Republicans from injecting race into her Supreme Court confirmation hearings.
And so it was attack by association. Kagan's work as Thurgood Marshall's law clerk after she graduated from Harvard Law seemed too good an opportunity for some Republicans on the committee to pass up. Invoking Justice Marshall as an activist gave the Republicans on the committee the chance to criticize the kind of nominee they wish President Obama had nominated: one who was black and unabashedly liberal. The fact that President Obama chose not to appoint such a nominee (precisely to deny Republicans the opportunity to paralyze the country with divisive and unproductive hearings) was of no importance. Elena Kagan was, in essence, raced by the committee members, who used Justice Marshall as a racial stand-in for President Obama and a proxy in the ongoing culture wars.
Outside the Senate Judiciary hearing room, Justice Marshall is regarded as one of the greatest lawyers and most admired judges of the 20th century, so the way the Republicans talked about him -- as a dangerous judicial activist "outside the mainstream" -- was pure theater. Marshall was an unabashed liberal at a time when that word was simply a place on the ideological spectrum, not an indictment. Indeed, Marshall's place on the legal spectrum is well within the mainstream of legal thought -- so much so that he was confirmed by a vote of 69-11 for a seat on the Supreme Court. In 1967.
Marshall's record as a justice can stand up to any ad hominem attack. It includes, in addition to a principled stance against the constitutionality of the death penalty, his decision holding that even a white criminal defendant may challenge the systematic exclusion of blacks from participating in the jury, his opinion striking down a city ordinance that drew distinctions between permissible and impermissible protest speech, and his oft-cited statement in his opinion protecting privacy rights that "if the First Amendment means anything, it means that the State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving the government the power to control men's minds."
The legacy of Thurgood Marshall as a legal giant who compelled the American legal system to honor the true and intended meaning of the word "equality" in the 14th amendment to the Constitution is unassailable. Republicans know this. But the tantalizing benefit of playing the race card at the Kagan confirmation hearings was just too attractive for some of the Republicans on the committee to resist. Even Orrin Hatch (R-Utah), who's been around long enough to know better but who has perhaps been made uneasy by the surprising decision of voters to kick fellow senator Bennett out of office -- got in on the fun in an interview with MSNBC. Kudos go the Republican members of the committee who refused to engage in this shameful and divisive game (it's you again, Sen. Lindsay Graham [R-S.C.]).
Republicans may have gotten more than they bargained for in the negative reactions to their Marshall bashing. Perhaps this explained their considerably more courtly performance on day 2. But their work was done. Race had been insidiously inserted into the confirmation hearings to remind the right wing base of the GOP what these hearings are really all about.
Sherrilyn Ifill, who teaches at the University of Maryland School of Law, writes about the law for The Root.