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.
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.