Republican senators sound increasingly unlikely to try and block Elena Kagan's confirmation to the Supreme Court, owing perhaps in part to public apathy, but in the meantime they've focused some of their attention on an even more difficult target: former Justice Thurgood Marshall, a civil rights pioneer, the first African-American to sit on the high court and one of Kagan's self-avowed heroes, for whom she clerked early in her career.
Marshall's name came up 35 times during the first day of Kagan's confirmation hearings, compared to 14 mentions of President Obama, by Talking Points Memo's count.
There's "no doubt he was an activist judge," Sen. Orrin Hatch (R-Utah) said of Marshall on MSNBC Monday. "Let's admire the man for the great things he did, but let's not walk over and wipe out the things that really didn't make sense as an obedient student of the practice of law."
The Salt Lake Tribune tracked Hatch down after Monday's hearing to ask if he would have voted for Marshall, the man who successfully litigated Brown v. Board of Education not long before he joined the Supreme Court. "Well, it's hard to say," was Hatch's response.
Sen. Jeff Sessions of Alabama, the ranking Republican on the Judiciary Committee, likewise decried Marshall as "a well-known liberal activist judge" in his opening remarks during the hearing. Other GOP senators have sought to press Kagan on whether she believes that, as Marshall once said, "you do what you think is right and let the law catch up," the Wall Street Journal reports.
And as Greg Sargent noted, Senate Minority Whip Jon Kyl (R-Ariz.) decided to hit Marshall for "his unshakable determination to protect the underdog."
"Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have 'a keen understanding of how the law affects the daily lives of the American people ... and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,'" Kyl complained. "Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog."