Elena Kagan’s first day of Supreme Court confirmation hearings revealed some interesting points of view from the current crop of Republicans on the Senate Judiciary Committee. For instance, the late Justice Thurgood Marshall, who was the first African-American to serve on the Court and who argued successfully the case of Brown vs. Board of Education in 1954, was dismissed as an “activist” judge by several GOP members of the panel. If Mr. Marshall was the one facing confirmation today, he wouldn’t make it if Sen. Jefferson Beauregard Sessions III (R-AL) or Sen. Jon Kyl (R-AZ) had anything to say about it. As Dana Milbank noted, “With Kagan’s confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.”
In his opening statement, Mr. Kyl attacked Ms. Kagan for her admiration for Justice Marshall:
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.
He said it with an audible sneer; the nerve of her believing that the law was there to defend the rights of the powerless.
The Republicans were in such a frenzy to trash Ms. Kagan that they went into the hearing without coordinating their message. Before Mr. Kyl got to his screed against the underdogs of America, we were treated to a lecture from Sen. Sessions, who used a variety of dog-whistles to the right-wing base to say that Ms. Kagan was an elitist: “Manhattan Upper East Side” (New York Jewish, possibly lesbian) and “Harvard Law School”, all done with a Southern drawl that would have done George Wallace proud. So which is it; Elena Kagan shouldn’t serve on the court because she only cares about the powerless, or she should be rejected because she lives in an ivory tower and munches on arugula while skimming through volumes of the Harvard Law Review while wearing her Birkenstocks?
I get it that the GOP is opposed to “activist judges” — unless they’re activist in the right way as in the Citizens United ruling — and I also get it that their core constituency is the angry white guy who resents the idea that equal protection under the law really does apply to everyone. But it’s not exactly something you want to have out there as a YouTube clip of the cream of the GOP attacking someone for admiring one of the most important judicial figures in American civil rights of the last century — how’s that campaign to bring in more minorities to the GOP going?
Update: Joe Scarborough nails the GOP for attacking Thurgood Marshall.