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Kagan may get confirmed, but Thurgood Marshall can forget it

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Kagan, who once lamented the "vapid" nature of confirmation hearings, was determined to maximize her chances by being as vapid as possible. She read her banal opening statement so slowly that a bipartisan wave of yawns and eye-rubbing hit the dais.

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"A confirmation hearing," ventured Sen. Chuck Schumer (D-N.Y.), "has the potential to be like eating spaghetti with a spoon: It's a lot of work, and it's hard to feel satisfied at the end."

It's also messy -- as the attacks on Marshall demonstrated.

Chairman Patrick Leahy (D-Vt.), at the start, recalled Kagan's clerkship for Marshall and noted that Marshall's son was in the audience.

But Republicans saw trouble in this Marshall fellow. "In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, 'in his view, it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government,' " Kyl complained.

Protecting the unprotected? Say it ain't so!

And that wasn't all. Kagan also emphasized Marshall's "unshakable determination to protect the underdog," Kyl said.

Sen. Dick Durbin (D-Ill.) offered a Marshall defense. "Some may dismiss Justice Marshall's pioneering work on civil rights as an example of empathy, that somehow as a black man who had been a victim of discrimination his feelings became part of his passionate life's work -- and I say, thank God," he said. Durbin held up a piece of paper documenting that the longtime NAACP lawyer and U.S. solicitor general won 29 of the 32 cases he argued before the Supreme Court.

When the speeches ended, Kagan, accepting hugs and handshakes from friends, spotted Thurgood Jr. "Goody!" she called out, giving him a hug. "How ya doin'?"

Goody is just fine -- and so remains the reputation of his sainted father.

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