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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Looking Past Kagan–Way Past

Back in April we published a Strategy Memo suggesting that any Obama Supreme Court appointment would inevitably expose conservative radicalism on constitutional issues. And despite the ho-hum tone of media coverage of the beginning of confirmation hearings on Elena Kagan, that’s exactly what’s happening.
As the Washington Post’s Dana Milbank reports, the first day of the hearings revealed a strange Republican preoccupation with Kagan’s mentor, the late Justice Thurgood Marshall:

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.

Milbank clearly thinks Republicans are just being goofy here, going after Marshall because they have no ammunition against Kagan.
But it’s likely something else is going on: Republicans are blowing major dog whistles to conservatives whose objections to Elena Kagan are actually objections to much of the Supreme Court’s constitutional interpretations since the early New Deal. From that radical point of view, the sainted Thurgood Marshall was one of many villains on the generally villainous Warren Court. Kagan’s connection to him is sufficient evidence to reject her if you happen to think the Constitution should be interpreted literally according to an anti-government “originalist” perspective.
Dana Milbank and others should get over their bored amusement with GOP hijinks and consider the possibility that conservatives are deadly serious in deploring the memory of Thurgood Marshall. It may not matter in terms of Kagan’s confirmation, but could matter a lot if Republicans get a lot stronger in the Senate or retake the White House.

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