How Republicans inadvertently made the case for confirming Elena Kagan.

The law, lawyers, and the court.
July 3 2010 7:07 AM

Thurgood Marshall Made Them Do It

How Republicans inadvertently made the case for confirming Elena Kagan.

Elena Kagan. Click image to expand.
Elena Kagan

When Senate Republicans decided to turn the first day of Solicitor General Elena Kagan's confirmation hearing into a referendum on her mentor, Justice Thurgood Marshall, they made two big mistakes. The first was tactical: Most Americans just don't know or care that much about Marshall's jurisprudential style. When they think of him, they think of him as a lion of the civil rights movement, a guy you name airports after. While deriding him as a "judicial activist" and "results oriented" may have been an attack on his judicial craftsmanship, to most of us it sounded a lot like an insult to his legacy. But the real mistake the GOP made in tethering Kagan to Marshall was that the comparison emphasized the exact point Senate Democrats were attempting to make all week: that the court has a critical function to play when the other two branches of government let the American people down. Democrats made that point with some success. By invoking Marshall over and over again, Republicans really drove it home.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

It was already clear by the second day of the hearings that efforts to slander Marshall (his name came up 35 times on the first day of the hearings alone) had backfired badly. Several senators even hustled to clarify that they never intended to insult the civil rights icon; they just didn't like the way he did business. But when Kagan was given an opportunity to defend Marshall in her testimony, she said something important. "Justice Marshall's whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else," she said. "In his struggle for racial justice, you know, he could go to the statehouses or he could go to Congress or the president, and those claims generally were ignored."

What Kagan was saying here was that Marshall believed that the courts had a critical role to play in bringing about justice because he believed—with good cause in his particular case —that the other branches of government would almost always fail the poor, the disenfranchised, and the powerless. At the same time, Kagan took pains to distinguish herself from her former mentor. Not only did she assert that "if you confirm me to this position, you will get Justice Kagan; you won't get Justice Marshall," but she also explained, time and again, that she believed deeply in deference to the other two branches of government, and to precedent. Unlike her mentor, she believes that the elected branches, for the most part, do a pretty good job.

In one of the most telling exchanges of the hearings, Kagan distinguished her own view of the death penalty from Marshall's by explaining that she had "no moral qualms" with capital punishment and that it was "settled precedent." Period. Questioned by Sen. Richard Durbin about Marshall's approach to capital cases, she clarified: Marshallbelieved "the death penalty was unconstitutional in all its applications," she said, but he also felt he had "a special role in each death penalty case to make sure that there were no special problems in the imposition of the death penalty." Again, and unlike Marshall, Kagan apparently has more confidence in the capital-punishment system and sees no special role for herself in policing the facts of every last execution.

If Republicans devoted the first part of the hearings to clobbering Thurgood Marshall, Democrats used them to condemn John Roberts. Their argument was that the Roberts court is so completely beholden to corporate America that it routinely bends the rules to allow big money to corrupt elections, big business to abuse employees, and big oil to escape liability for oil spills. This message was somewhat clouded by their deployment of the words judicial activist—language they have railed against for years when used against them—and by their failure to explain what any of this battering away at the Roberts court might have to do with Kagan.

But Republicans inadvertently connected the dots for them by repeatedly reminding Americans that sometimes the court needs to step in when the other branches of government are not looking out for its most vulnerable citizens. By continuing to bring up Marshall's legal legacy, they kept making the point—better than the Democrats could—that not all justices are elite or out of touch. Justices like Marshall could be the only champions left when the system failed the powerless or the poor.

Now, soon-to-be Justice Kagan and President Obama sometimes seem to be of the view that this is a sweet but generally outdated view of the courts, an approach that had its time and place 56 years ago. Elections matter, they say. Courts should know their place. But Sen. Al Franken disagreed. He used the hearings to remind Americans that the Roberts court's pro-business rulings have "consistently and intentionally protected and promoted the interests of the powerful over those of individual Americans," when the Supreme Court ought to be doing precisely the opposite. Now, this doesn't mean—as it's fashionable to suggest—that Franken believes the justices should always have a thumb on the scale for "the little guy." But it does mean, as he illustrated at the hearings, that when Supreme Court rulings make it all but impossible for the little guy even to get through the courthouse door, Americans have lost their last refuge.

The courts need to be there when the other branches let us down. Nobody's life story made that point better than Thurgood Marshall's. And nobody reminded us of that fact more pointedly and more effectively at the Kagan hearings than Republicans on the Senate judiciary committee.

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