Roberts vs. Marshall at the Kagan Hearings

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Senators alternately praised and criticized two powerful justices: Roberts (left) and Marshall. M. Wilson / Getty Images (left); C. Tasnadi / AP

When she finally got to speak on Monday, Supreme Court nominee Elena Kagan, in grave tones, promised to be a “modest,” “restrained,” “even-handed,” “impartial” custodian of the Constitution.

But in an odd way, Kagan's so-far-uneventful hearings aren’t just about her. They’re shaping up as a trial in absentia of two powerful justices; one current and one past: Chief Justice John G. Roberts Jr., and the late Associate Justice Thurgood Marshall. So far, Marshall is winning.

Democrats supported Kagan by denouncing Roberts’s Supreme Court as a band of callous Big Business activists; Republicans opposed Kagan by denouncing Marshall (whom Kagan clerked for) as emblematic of reckless Big Government activism.

It’s still early, but if Kagan’s Supreme Court confirmation were a World Cup match, the score at the end of day one would read: Democrats 4 (at least), Republicans nil (at most). 

On paper, perhaps—or in a conference room over at the Federalist Society—it might seem like a good idea to oppose Kagan because of her deep association with Marshall. And that was the tack taken by GOP members, led by Sen. Jeff Sessions of Alabama and Sen. John Cornyn of Texas. As Sessions put it, Marshall was one of those justices who “don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire.”

But what the GOP seems to forget is that Marshall is revered for his role as the lead lawyer in the landmark Brown v. Board of Education case, which desegregated the nation’s schools. Marshall expressed the “living constitution” theory of jurisprudence—and if there is an unassailable monument to that theory, it is the Brown decision.  

Kagan herself drove a truck right over the GOP on the issue. “My first real exposure to the Court came almost a quarter century ago,” she said in her opening statement, “when I began my clerkship” with Marshall. “Justice Marshall revered the court—and for a simple reason. In his life, in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American—and that most often fulfilled our Constitution’s promise of treating all people with equal respect, equal care, and equal attention.”

So much for attacking Kagan via Marshall.

The Democrats, meanwhile, went after Roberts, and with the ferocity and focus of a 30-second attack ad on cable TV. Roberts and his allies are issuing ruling after ruling “in favor of powerful corporate interests,” said Sen. Al Franken of Minnesota. In his recounting, the court has been busy weakening everything from consumer protection to environmental regulation. He made it sound as though seat-belt laws were next.

Republicans held their return fire in the committee room, but the Democrats’ strategy was clear: to preemptively answer the “Big Government socialist” attack line of the GOP. For day one, at least, it worked.

But another Democratic tactic seemed less promising: selling Kagan’s peacemaking skills at Harvard Law as an example of how she will be an impartial, mainstream justice. Time and again, Kagan’s supporters lauded her for inviting conservatives to join the faculty; for her willingness to appear at a Federalist Society banquet; for what they said was her ability to find an ideological middle ground in Cambridge.

There are two problems with this line of argument. For one, then Dean Kagan brokered a deal that did have the effect of keeping military recruiters out of the official job process at Harvard. There is no way to really explain that one away. More important, most of America probably doubts—deeply —that there is such a location as middle ground in Cambridge.

Throughout the lengthy statements by senators on Monday, Kagan was as earnest and prim as the bat mitzvah girl she once was. Now the Sanhedrin of (mostly) men on the Judiciary Committee will have to decide what to make of her claim to modesty. The Republicans wish they could believe her (but don't, because they think she is a recently closeted activist liberal). The Democrats also tend not to believe her (and happily, because they want her to be an activist liberal judge).

It was two different views of the nation's highest court and the justices who sit on it: Roberts vs. Marshall, all over again.

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