When Senate Republicans decided to turn the first day of Solicitor General Elena Kagan’s confirmation hearing into a referendum on her mentor, Justice Thurgood Marshall, they made two mistakes. The first was tactical: most Americans don’t care much about Marshall’s jurisprudential style. They think of him as a lion of the civil-rights movement, and deriding him as a “judicial activist” and “results oriented” served only to insult them. But the real mistake the GOP made in relentlessly tethering Kagan to Marshall was that the comparison illustrated the exact point Senate Democrats were attempting to make all week: that the court has a critical function to play when the other two branches of government let the people down.
It was already clear by the second day of the hearings that efforts to slander Marshall had backfired and several senators raced to clarify that they had never intended to insult the civil-rights icon. But when Kagan was given an opportunity to defend Marshall in her testimony, she said something important: “Justice Marshall’s whole life was about seeing the courts take seriously claims that were not taken seriously anyplace else,” she explained. “In his struggle for racial justice, you know, he could go to the statehouses or he could go to Congress or the president, and those claims generally were ignored.”
What Kagan was saying here was that Marshall believed that the courts had a critical role to play in bringing about justice because he believed—with good cause, to be sure—that the other branches of government would always fail the poor, the disenfranchised, and the powerless. Kagan took pains to distinguish herself from her former mentor, not just by asserting that “if you confirm me to this position, you will get Justice Kagan; you won’t get Justice Marshall,” but also by explaining, again and again, that she believed deeply in deference to the other two branches of government, and to precedent.
Kagan distinguished her own view of the death penalty from Marshall’s, for instance, by explaining that she had “no moral qualms” with it and that it was “settled precedent.” Questioned by Sen. Dick Durbin about Marshall’s approach to capital cases, she clarified that Marshall thought that “the death penalty was unconstitutional in all its applications,” but also saw himself as having “a special role in each death-penalty case to make sure that there were no special problems in the imposition of the death penalty.” Kagan has far more confidence in the capital-punishment system and sees no such special role for herself.
Senate Democrats used the hearings to try to sell the argument that the John Roberts Supreme Court is so beholden to corporate America that it routinely bends the rules to allow Big Money to corrupt elections; Big Business to abuse their employees; and Big Oil to escape liability for their spills. The message was somewhat clouded by their use of the words “judicial activist”—a term they have railed against for years when conservatives hurled it at them—and by the failure to explain why any of this might matter with regard to Kagan. Senate Republicans inadvertently connected the dots for them, however, by repeatedly reminding Americans that sometimes the court needs to step in when the other branches of government are not looking out for its most vulnerable citizens. By bringing up Marshall’s legal legacy, they kept making the point—and better than the Democrats could—that liberal justices aren’t elite or out of touch.
Soon-to-be Justice Kagan and President Obama sometimes appear to be of the view that this is a sweet but generally outdated view of the courts, an approach that had a time and a place in 1954, but is best left behind today. Sen. Al Franken disagrees. He used the hearings to remind Americans that the Roberts Court’s pro-business rulings have “consistently and intentionally protected and promoted the interests of the powerful over those of individual Americans,” when the Supreme Court ought to be doing precisely the opposite.
This doesn’t mean—as it’s fashionable to suggest—that the justices should always have a thumb on the scale for “the little guy.” It does mean, as Franken so deftly illustrated, that when Supreme Court rulings make it all but impossible for the little guy to get through the courthouse door, the little guy sometimes loses his last refuge. Nobody’s life story made that point better than Thurgood Marshall’s. And nobody reminded us of that fact more pointedly at the Kagan hearings than Republicans of the Senate Judiciary Committee.