*While Elena Kagan is expected to sail through her Supreme Court confirmation hearings without much Republican opposition, the GOP has apparently decided to use this opportunity to target Kagan’s mentor, former Justice Thurgood Marshall.
The civil rights pioneer and first African American to sit on the high court is one of Kagan’s self-avowed heroes, for whom she clerked early in her career. According to Talking Points Memo, Marshall’s name came up 35 times during the first day of Kagan’s confirmation hearings, compared to 14 mentions of President Obama.
There’s “no doubt he was an activist judge,” Sen. Orrin Hatch (R-Utah) said of Marshall on MSNBC Monday. “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.”
After Monday’s hearing, the Salt Lake Tribune asked Hatch if he would have voted for Marshall, the man who successfully litigated Brown v. Board of Education not long before he joined the Supreme Court. “Well, it’s hard to say,” was Hatch’s response.
Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, called Marshall “a well-known liberal activist judge” in his opening remarks during the hearing. Other GOP senators have sought to press Kagan on whether she believes that, as Marshall once said, “you do what you think is right and let the law catch up,” the Wall Street Journal reports.
Meanwhile, Senate Minority Whip Jon Kyl (R-Ariz.) decided to hit Marshall for “his unshakable determination to protect the underdog.”
“Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have ‘a keen understanding of how the law affects the daily lives of the American people … and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,'” Kyl complained. “Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog.”
Below, Talking Points Memo edited together a video highlighting the GOP’s targeting of Justice Marshall from Monday’s hearing.