No Comment — June 29, 2010, 11:47 am

The Thurgood Marshall Nomination

As Elena Kagan noted in a book review she penned for the University of Chicago Law Review, (PDF) Supreme Court confirmation hearings usually succeed in disclosing very little about the views of the nominees. On the other hand, we can learn a great deal about the thinking of the senators who pose the questions. Increasingly, the hearings have become—particularly for the Republicans—a platform they can use to attack judges they dislike and praise judges they support. That was most evident at the opening round of the Kagan confirmation hearings yesterday, at which it appeared that Republicans were less focused on Elena Kagan (whose record, alas, gave them frightfully little to attack) than her mentor, civil-rights legend Thurgood Marshall. Christina Bellantoni at TPM offered the best analysis of this phenomenon:

Looks like Senate Judiciary Republicans have at least one unified talking point today: Justice Thurgood Marshall, the first African-American to ever serve on the Supreme Court, was an “activist judge.” As Elena Kagan kept on her listening face, multiple senators slammed both Marshall’s judicial philosophy and her service as his clerk in the late 1980s.

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.

So what made Marshall the image of an “activist judge”? Was it his role in Brown v. Board of Education, the decision that put an end to the lie of “separate but equal” education across the American South, forcing desegregation in public education? Or perhaps it was the fact that he won nearly all of his Supreme Court cases, most of them on behalf of the NAACP, and all of them testing the official refuges of bigotry and racism?

The attacks were led, predictably, by neoconfederate senator Jeff Sessions of Alabama, the Republican ranking member and the Theodore Bilbo of his generation, who snarled that Kagan’s affection for her former boss “tells us much about the nominee”—a comment clearly intended as an insult. But so many other Republican senators joined in—Orrin Hatch, John Cornyn, and Jon Kyl, for instance—that it appears to have been an agreed talking point. (I see Dana Milbank reports that Republican staffers were actually handing out opposition research on Marshall’s voting record after the hearing–another sign that the war on Marshall was a formal strategy.)

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 Republicans.

Share
Single Page

More from Scott Horton:

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

From the June 2014 issue

The Guantánamo “Suicides,” Revisited

A missing document suggests a possible CIA cover-up

Get access to 164 years of
Harper’s for only $39.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

December 2014

Gateway to Freedom

= Subscribers only.
Sign in here.
Subscribe here.

Guns and Poses

= Subscribers only.
Sign in here.
Subscribe here.

Christmas in Prison

= Subscribers only.
Sign in here.
Subscribe here.

Poison Apples

= Subscribers only.
Sign in here.
Subscribe here.

Growing Up

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Post
Sarah Topol follows the trade routes used by arms smugglers, Eric Foner explores the hidden history of the Underground Railroad, Karl Ove Knausgaard recounts a humiliating episode from grade school, and more
Photograph by Angela Strassheim
Article
Growing Up·

= Subscribers only.
Sign in here.
Subscribe here.

“The best coming-of-age stories have a hole in the middle. They pretend to be about knowledge, but they are usually about grasping, long after it could be of any use, one’s irretrievable ignorance.”
Photograph by Ben Pier
Article
Guns and Poses·

= Subscribers only.
Sign in here.
Subscribe here.

“‘It’s open shopping,’ he said. ‘A warehouse. The whole of Libya.’”
Map by Mike Reagan
Article
Gateway to Freedom·

= Subscribers only.
Sign in here.
Subscribe here.

“The Vigilance Committee survived until the eve of the Civil War, and over the course of its several incarnations it propelled the plight of fugitives to the forefront of abolitionist consciousness.“
Photograph by Amani Willett
Article
Christmas in Prison·

= Subscribers only.
Sign in here.
Subscribe here.

“Just so you motherfuckers know, I’ll be spending Christmas with my family, eating a good meal, and you’ll all be here, right where you belong.”
Photographer unknown. Artwork courtesy Alyse Emdur

Amount that President Obama has added to America’s “brand value” according to the Nation Brands Index:

$2,100,000,000,000

A study suggested that the health effects of exposure to nuclear radiation at Chernobyl were no worse than ill health resulting from smoking and normal urban air pollution.

A former New York City police officer who had been arrested in 2012 for exchanging online messages about cooking women alive and eating them, and for illegally accessing data about potential victims in law-enforcement databases, was sentenced to time served.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

In Praise of Idleness

By

I hope that after reading the following pages the leaders of the Y. M. C. A. will start a campaign to induce good young men to do nothing. If so, I shall not have lived in vain.

Subscribe Today