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GOP Senators Put Thurgood Marshall on Trial

At The Washington Post, Dana Milbank notes that Republicans have taken to criticizing Justice Thurgood Marshall as a way of attacking Elena Kagan’s (apparent) judicial philosophy:

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. [...]

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.”

This isn’t the first time Republicans have attacked Kagan for her praise and admiration for the late justice; shortly after her nomination, RNC chairman Michael Steele blasted Kagan for her ties to Marshall:

RNC Chairman Michael Steele targeted her praise for the jurisprudence of Marshall, a liberal icon, and a speech in which Marshall called the Constitution “defective.” [...]

“Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution ‘as originally drafted and conceived,’ was ‘defective,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment,” Steele said in the statement.

As for yesterday’s hearing, TPM’s Christina Bellantoni kept a tally, and found that Republicans mentioned Marshall a whopping 35 times. At the Washington Monthly, Steve Benen sees this as evidence of a coordinated attack on Justice Marshall’s views, and marvels at the spectacle of GOP senators ”condemning one of the most venerated Supreme Court justices in American history.”

For my part, I’m not too surprised to see Republicans target Thurgood Marshall for attack; not only was he one of the most liberal justices in Supreme Court history, but his tenure on the Supreme Court was relatively recent. Indeed, some longer-serving GOP senators are old enough to have railed against Marshall for “activist judging” in the 1980s or early 1990s, before he died. And while liberals might find conservative attacks on Marshall offensive, it’s worth noting that they’ve focused their fire on his theory of jurisprudence and not his work for the NAACP. The former is untoward; the latter, genuinely objectionable.

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