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Kagan may get confirmed, but Thurgood Marshall can forget it

By Dana Milbank
Tuesday, June 29, 2010; A02

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.

Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a "well-known activist." Sen. Chuck Grassley (R-Iowa) said Marshall's legal view "does not comport with the proper role of a judge or judicial method." Sen. John Cornyn (R-Tex.) pronounced Marshall "a judicial activist" with a "judicial philosophy that concerns me."

As the Republicans marshaled their anti-Marshall forces, staffers circulated to reporters details of the late justice's offenses: "Justice Marshall endorsed 'judicial activism,' supported abortion rights, and believed the death penalty was unconstitutional."

The problem with this line of attack is that Marshall was already confirmed by the Senate -- in 1967. He died in 1993. In the audience Monday, his son, Thurgood "Goody" Marshall Jr., sat two rows behind the nominee and listened with amusement to the assaults on his father.

"I was a little surprised," said Goody Marshall. "He would've probably had the same reaction I did: It's time to talk about Elena."

But talking about Elena is boring. Her credentials and her lack of a paper trail make her confirmation a virtual certainty. Further aiding her has been the steady flow of distraction, from the gulf oil spill to the death Monday of Sen. Robert Byrd (D-W.Va.). Most lawmakers, before addressing themselves to Kagan, delivered brief Byrd eulogies; Sen. Scott Brown (R-Mass.), introducing Kagan to the panel, offered this illogical wish: "I'd like to express my heartfelt condolences to Senator Byrd and his family for the loss that they've suffered."

The lack of a coherent attack on the nominee became apparent when Cornyn began his opening statement with a quotation that he said he received in an e-mail: "Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war, and we're all the crew."

"I don't know why I thought of that," Cornyn told the perplexed audience.

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.

"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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