Day 2: So Far, So Thurgood

Dana Milbank at WaPo:

Oppo researchers digging into Elena Kagan‘s past didn’t get the goods on the Supreme Court nominee — but they did get the Thurgood.

As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.

“Justice Marshall’s judicial philosophy,” said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, “is not what I would consider to be mainstream.” Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall “might be the epitome of a results-oriented judge,” he said.

It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint — literally. Marshall this spring was added to the Episcopal Church’s list of “Holy Women and Holy Men,” which the Episcopal Diocese of New York says “is akin to being granted sainthood.”

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.

Charles Johnson at Little Green Footballs:

The GOP in Texas pushed hard to get Thurgood Marshall removed from social studies textbooks, and today I watched in absolute disgust as the GOP in Washington actually smeared Thurgood Marshall during Kagan’s nomination hearing.

Steve Benen:

I often find Republican ideology to be rather twisted, but it simply never occurred to me that GOP senators would spend the first day of the confirmation hearings condemning one of the most venerated Supreme Court justices in American history.

But condemn they did. Sen. John Cornyn (R-Tex.) declared Marshall “a judicial activist.” So did Sen. Jeff Sessions (R-Ala.). Sen. Chuck Grassley (R-Iowa) said Marshall’s approach to the law “does not comport with the proper role of a judge or judicial method.”

Better yet, this was a coordinated attack — Republican aides circulated materials to reporters during the hearing detailing all of the things the GOP doesn’t like about Thurgood Marshall.

Christina Bellantoni put together an interesting count — while President Obama’s name came up 14 times yesterday, Thurgood Marshall’s name came up 35 times.

It’s quite a strategy Republicans have put together here, isn’t it? Unable to come up with a coherent line of attack to undermine this nominee, the GOP has decided to turn its guns on an iconic civil rights attorney and one of the more celebrated American heroes of the 20th century.

And the Republican Party’s outreach to minority communities suffers yet another setback.

Jules Crittenden:

Various mystified parties are denouncing GOP attacks on Thurgood Marshall’s expansive judicial activism … on the bizarre grounds that his status as the nation’s first black Supreme Court justice has literally made him a saint and makes his positions unassailable* … and are wondering what any of that has to do with his former law clerk in the current Judiciary Committee confirmation hearings. Though when you consider her own position — a sort of looking-glass support for discrimination vs. discrimination at Harvard — it gets to the heart of the matter. Does she in fact think some forms of discrimination are constitutional, and some political positions are not only above the law, but above the interests of national security in wartime, and as Harvard apparently thinks given its willingness to accept federal money and ROTC tuitions despite its active opposition to the military over the federal government’s congressionally passed, Clinton-signed DADT policy, that principles are principles and money is money, and one shouldn’t get in the way of the other?

* Milbank has a point, though. Hagiophobia will get the GOP nowhere in this case.

John McCormack at The Weekly Standard:

During questioning by Judiciary chairman Patrick Leahy this morning, Elena Kagan defended the policy she upheld at Harvard of keeping military recruiters out of the office of career services.

“I’m confident that the military had access to our students and our students had access to the military throughout my entire deanship,” Kagan said. She defended the anti-military policy:

“This was a balance for the law school because on the one hand we wanted to make abo sure that our students did have access to the military at all times, but we did have a very longstanding, going back to the 1970s, anti-discrimination policy, which said that no employer could use the office of career services if that employer would not sign a non-discrimination pledge, that applied to many categories–race, and gender and sexual orientation, and actually veteran status as well. And the military could not sign that pledge … because of the Don’t Ask/Don’t Tell policy.”

As many people have pointed out, the military’s policy on gays in the military is based on a law passed by Congress and signed into law by President Bill Clinton, for whom Kagan worked. Why were other federal government officials not similarly discriminated against by Harvard?

Jonathan Adler:

I’ve contributed some initial reactions to the Washington Post’s online “Topic A” feature on the Kagan nomination hearings.  The general thrust of my remarks is that the Kagan hearings, thus far, are much like what we’ve come to expect in that she’s dutifully avoided revealing much about her personal legal views, despite her 1995 essay urging greater candor by nominees and more searching interrogation by Senators.  I also note that Kagan, much like Sotomayor, has refused to defend a “progressive” constitutional vision, whether that articulated by the President or her onetime-mentor Justice Thurgood Marshall.

One of the other contributors to the feature, Walter Dellinger, has a contrary view. I suspect part of our difference comes from the fact that Kagan has not offered the stilted, almost scripted, responses to questions about judicial philosophy that made her sound like a John Roberts wannabe (and demoralized some liberal legal thinkers).  Kagan has spoken more broadly about the judicial role, but without saying much that could be used to pin her down on her views of constitutional interpretation, let alone specific issues or cases.  She’s also proclaimed that “we are all originalists” and that empathy should not play much of a role in judicial decision-making because “it’s law all the way down.”

The most interesting parts of the hearings to me thus far — and it’s still early — have been the exchanges discussing Citizens United and other cases she’s handled as Solicitor General.  Here Kagan sought to discuss her decisions in these cases without revealing too much about how she might view similar cases that might come before the Court.  I’ve found these exchanges more interesting than those on, say, her handling of the military at Harvard or her various White House memos.

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