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. President Obama’s name was mentioned just 14 times today.
Sessions said Kagan’s reverence for Marshall “tells us much about the nominee,” and he meant that more as an indictment than a compliment.
Kagan has said Marshall, who served as the lead attorney in the Brown v. Board of Education case leading to the desegregation of schools, is one of her heroes. She honored him in her opening statement later in the afternoon: “In his life; in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American and that most often fulfilled our Constitution’s promise of treating all persons with equal respect, equal care and equal attention.”
While some Democrats praised Marshall today, at least two Republicans quoted Marshall’s famed saying that he advised people to “do what you think is right and let the law catch up.”
Video produced by Rachel Slajda
Democratic operatives think the GOP using Marshall is a dumb strategy given how the Republicans were portrayed as culturally insensitive last year when talking about Sonia Sotomayor being a “wise Latina woman.” But Marshall’s supposedly terrible judicial activism was the theme of the day for Republicans.
“[I]t is more about his judicial philosophy what concerns me and this has already been mentioned it is clear he considered himself a judicial activist and was unapologetic about it,” Sen. John Cornyn (R-TX) told Kagan.
“There’s no doubt that he was an activist judge,” Sen. Orrin Hatch (R-UT) said on MSNBC today when taking a break from the hearing. Hatch lauded Marshall’s role in helping African Americans “be more accepted in society,” but criticized his decisions on the court. “Let’s admire the man for the great things he did, but let’s not walk over and wipe out the things that really didn’t make sense as an obedient student of the practice of law,” Hatch said.
Sen. Jon Kyl (R-AZ) said he doesn’t consider Marshall’s judicial philosophy to be “mainstream,” and Kyl said Kagan seems to “enthusiastically embrace” Marshall’s philosophy by labeling it a “thing of glory.” He pointed to her clerkship record and said it shows “naked political judgment.”
Here’s a key portion of Kyl’s statement:
In another case, Ms. Kagan said that the Supreme Court should take the case because “it’s even possible that the good guys might win on this issue.”
I’m concerned about her characterization of one party as the good guys. Too often it sounds to me like Ms. Kagan shares the view of President Obama and Justice Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants. In another case, Ms. Kagan wrote that there is no good reason to place an exclusionary rule before this court, which will doubtlessly only do something horrible with it.
And in another memo laced with political considerations, Ms. Kagan wrote, “I see no reason to let this court get a crack at this question.” She was even more explicit in a handwritten note after reviewing the government’s response in another case, saying, “I continue to believe that the facts did not support the arrest, but I cannot see anything good coming out of review of this case by this court.”
Ms. Kagan explains these recommendations as primarily channeling Justice Marshall, but the question is whether she really has any major differences with them and whether she sees anything wrong with taking the same approach. I see no evidence that that is the case.
It remains to be seen what, if any, resonance the GOP’s strategy of attacking a famed civil rights activist and esteemed Supreme Court jurist will have either with their base or those unconvinced about Kagan’s fitness for the court.
Late Update: Salt Lake Tribune’s Thomas Burr caught up with Hatch after the hearings and the senator wasn’t sure he would have voted to confirm Marshall.
“Well, its hard to say,” Hatch told Burr.