Putting my father, Thurgood Marshall, on trial

By Thurgood Marshall Jr.
Friday, July 2, 2010

I was too young to attend the confirmation hearing of my father, Thurgood Marshall, before the U.S. Senate Judiciary Committee 43 years ago. But I have been witness to a rehearing of sorts as the Senate Judiciary Committee considers Elena Kagan's nomination to the Supreme Court.

I believe that this spectacle is partly a result of my father having lived a life of consequence as a practicing attorney and as a jurist. The rhetoric serves as a reminder that President Lyndon Johnson displayed wisdom and great courage in nominating my father to the Supreme Court. Yes, he had served as solicitor general of the United States and as a federal appellate judge who authored more than 90 opinions without a single reversal, but as notable is what he did before holding those positions.

When my father was confirmed 69 to 11, more than four decades ago, that historic act came after he worked for years in private practice drafting wills, trying murder cases and engaging in all legal issues in between; after working in the courts to bring long-overdue voting rights to the disenfranchised and to desegregate schools.

If there is to be a new round of battles on those issues, then I suspect that the victory margin would be far greater since legions of Americans of every stripe regard the resolutions of those issues as achievements that make our union more perfect. If there is to be a new round of battles over my father's jurisprudence, his vision of the role of the courts or his belief in the 14th Amendment, then I like those odds, too. As Kagan, who clerked for my father in the 1987 Supreme Court term, noted this week, my father revered the high court because "his whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else."

My father appreciated the talent and dedication of his law clerks. While it is true he often referred to them as knuckleheads, it did not matter whether they agreed on all issues. He was grateful for their service and took pleasure in following their accomplishments over the years.

Two former clerks, Ralph K. Winter and Douglas Ginsburg, were nominated to the federal bench by President Ronald Reagan. Those nominations did not prompt the kind of harsh innuendo to which we have been subjected this week.

A debate this week about judicial activism seems to have revealed only one thing: One person's activism is another's adherence to constitutional principle. And to my ear, a progressive jurist sounds far more desirable than a regressive one. But the Kagan hearing is not the proper forum to rehash my father's work.

Elena Kagan is her own person. If she is confirmed, that is precisely how she will serve her country as an associate justice. I have worked closely with her and know well that she has far too much respect for the rule of law and for the Supreme Court to render decisions by seeking to channel anyone else. Her intellect and integrity are impeccable.

The writer practices law at Bingham McCutchen.

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