Elena Kagan's confirmation is likely if no other reason than the emptiness of the Republican case against here. Her hearing had, in her own well-chosen words, "an air of vacuity and farce." Nevertheless, the Republicans scored electoral points and solidified their appeal to those whose hostility toward President Barack Obama is rooted in racial basis.
Kagan, as is well known by now, clerked for Justice Thurgood Marshall, the Supreme Court's first African-American. Apparently, there is no statute of limitations on the kind of attacks Marshall endured in life, and which continue 17 years after his death.
At the first day of Kagan's hearing, the Republicans seemed bent on projecting Kagan as Marshall's clone, one who would follow his "activist" judicial philosophy. Sen. John Kyl (R-AZ) laid the cards clearly on the table when he charged that "too often, it sounds to me like Ms. Kagan shares the view of President Obama and Justice [Thurgood] Marshall that the Supreme Court exists to advance the agenda of certain classes of litigants." He insisted that Kagan had the burden to demonstrate she can be "a fair and impartial Justice, rather than one who would have an outcome-based approach."
Kyl and fellow Republicans Sens. Jefferson Beauregard Sessions (R-AL), Charles Grassley (R-IA), John Cornyn (R-TX), and Orrin Hatch (R-UT) invoked Marshall's name nearly forty times in two days, nearly three times more than President Obama's. They repeatedly referenced Marshall's judicial philosophy as "evidence" of Kagan's intentions. Sessions, the ranking member of the Committee, made it perfectly clear, calling Marshall "a well-known activist." The Republicans offered no examples of how Marshall's rulings twisted the Constitution to achieve that sinister-sounding "outcome-based approach."
After the first day of hearings, a Utah newspaper asked Hatch if he would have voted for Marshall when his confirmation came up in 1967. "Well, it's hard to say," Hatch replied. Hatch projects himself as an ordinary fellow (listen to his YouTube rendition of his "Eight Days of Chanukah" song) with an upright Mormon world view, and the Senate's moral voice. Some moral voice.
Had Hatch opposed Marshall's confirmation in 1967, he would have had had interesting bedfellows for 10 steadfast segregationists rejected Marshall, joined by one newly-minted future of the Republican party - the never-repentant J. Strom Thurmond. There are two contexts here: the present moment of Kagan's hearing, and the historical one of Marshall's travail in his confirmation hearings.
Kagan appeared with impeccable credentials, and with smarts and savvy for running essentially a seminar with the senators. Robert Bork foolishly tried to take the lecture senators as if he were in a classroom, but only succeeded in alienating them. Kagan not only demonstrated a learned and supple mind, she showed herself to be a very human, warm individual, with a sense of humor that provided a few spontaneous moments.
So, why the Republican hostility? Their not-so-subtle uses of the Marshall analogy amounted to stump speeches for the electorate back home. The senators well know their constituents' hostility toward President Obama has powerful racial overtones that fuel the public anger so calculated for the evening television news. The Thurgood Marshall references amounted to a purposeful, well-orchestrated strategy to fire up the "base."
Déjà vu all over. Nearly fifty years ago, President John F. Kennedy nominated Marshall to the Second Circuit of Appeals. Marshall came to the judiciary with an enviable record in his appearances as an advocate before the Supreme Court, winning 29 of 32 cases. He certainly did advance the "agenda of certain classes of litigants" - specifically, African-Americans determined to lift the burden of a century of formal segregation, and the national system of racial discrimination.
Marshall's unique confirmation proceedings amply demonstrated the new racial component of national politics. Kennedy offered a district judgeship, but Marshall insisted on the appellate court. Robert Kennedy feared antagonizing powerful southern senators, notably Judiciary Committee Chairman, James Eastland (D-MS), but the President overruled him. Eastland indeed held the nomination until Kennedy made a recess appointment. Eastland's racism was of another era. He told President Johnson that the three missing civil rights workers in Mississippi were in Chicago; their disappearance, he insisted, was a "publicity stunt." Johnson dismissed the Mississippian, saying he "could be standing right in the middle of the worst Mississippi flood ever known, and he'd say the niggers caused it, helped out by the Communists."
Johnson chose Marshall as Solicitor General in 1965, and his Supreme Court nomination followed in two years - not unlike the career path of Kagan. Marshall not only was the first African-American appointed to the High Court, but he also became subjected to extraordinary confirmation procedures. First, the hearings were held off for 78 days - highly unusual at the time. Most hearings began within a week of the nomination. Byron White, President Kennedy's first candidate for the Court, had been nominated and confirmed within eight days only three years earlier. Abe Fortas, President Johnson's first, had to wait only 14 days. From the outset of the process, Marshall was different. The FBI, as well as Committee investigators, probed deep into Marshall's life - his legal career, his drinking, and martial infidelities. Former Ku Klux Klan member Sen. Robert Byrd (D-WV) asked J. Edgar Hoover about Marshall's links to Communists.
Strom Thurmond, who since 1948 never endorsed a Democratic presidential candidate, and whose party shift foreshadowed the political realignment of the South, harassed - there is no other word - Marshall with obscure historical questions. Who were the authors of the Fourteenth Amendment, he wanted to know. In a day before nominees were briefed to the point of knowing everything, Marshall honestly said he did not know. "Stupid guy," growled Thurmond. Sen. Edward Kennedy (D-MA) then asked Thurmond to name the committee members. "I'll let you know," Thurmond grumbled.
The Republican party of 1967 was a different country. Then, 32 Republicans across their political spectrum from Jacob Javits (NY) to Roman Hruska (NB), and led by the ultimate maestro of minority maneuvering, Everett Dirksen (IL), joined 37 Democrats. Whose side would you have been on again, Senator Hatch?
Irony abounds. The noted civil libertarian Justice Hugo Black, a former Klansman, Senator from Alabama, and night court judge in Birmingham, presided at Marshall's swearing-ceremony. Four decades later, President Barack Obama delivered the eulogy for former Klansman Robert Byrd.
Richard Nixon and his political handlers gave us his "Southern Strategy" to solidify Republican gains in the South. Strom Thurmond was his go-too man, and the President gave him two unsuccessful nominations (Clement Haynesworth and Harrold Carswell) to the Supreme Court. Just two decades earlier, President Dwight Eisenhower selected moderate Republicans for the southern federal courts in the 1950s, and they figured prominently in the civil rights revolution, aiding and abetting the Supreme Court from below. That Republican party in the South is extinct.
For now, race remains a huge factor in Republican political strategy. Blacks may vote in southern states, but they cannot yet command consistent majorities, except in local races. Certainly the not-so-subtle racism of today's southern senators can exist only because Black political power is so fragmented and ineffective in the South. As southern Democrats wagged their party's tail for nearly a century, so now the Republican's southern base dictates their national strategy. Some believed Obama's election signaled the advent of a "post-racial "America," but not for now.
Stanley Kutler is the author of "The Wars of Watergate," and other writings.