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The Thurgood Marshall Nomination

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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.

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