Elena Kagan and Thurgood Marshall

Elena Kagan and Thurgood Marshall

Nicolaus Mills: Elena Kagan and Thurgood Marshall

The nineteen-member Senate Judiciary Committee has just approved Elena Kagan?s nomination to the Supreme Court by a 13-6 vote, with Senator Lindsey Graham of South Carolina joining the twelve Democrats on the committee. If approved by the full Senate, Kagan will become the youngest justice on the Supreme Court (at age fifty) and only the fourth woman in its history.

The hearings on Kagan, who served as solicitor general in the Obama administration, were partisan business as usual. Democrats, with the exception of retiring Senator Arlen Specter, generally treated her well. The Republicans voting against her based their opposition on Kagan?s so-called liberal views on gun control, abortion, and ?don?t ask, don?t tell? and, for good measure, added the complaint?never mind that she had been dean of Harvard Law School?that she lacked judicial experience.

But what was not partisan business as usual during the Kagan hearings were the attacks on the Supreme Court justice she once clerked for, Thurgood Marshall. Those attacks, led by Senator Jeff Sessions, the former attorney general of Alabama, were designed to smear the record of the man once called ?Mr. Civil Rights? because of his role as an attorney for the National Association of Colored People (NAACP). In that role, which Marshall filled from 1934 to 1961, he argued thirty-two cases before the Supreme Court, winning twenty-nine of them, including the landmark 1954 case, Brown v. Board of Education of Topeka, which banned racial segregation in America?s public schools.

Sessions depicted Marshall, the first black justice on the Supreme Court, where he served from 1967 to 1991, as an ?activist??a code word these days for a justice guided by political, rather than legal, concerns. Sessions?s thinking was echoed by two other Republican conservatives on the Senate Judiciary Committee. Senator John Kyl of Arizona said Marshall?s philosophy was not ?mainstream,? and Senator Chuck Grassly of Iowa argued that Marshall?s conduct did ?not comport with the proper role of a judge or judicial method.?

For a man who was as successful at winning Supreme Court cases as Marshall, the criticism of him as someone who operated outside the law makes little sense. But it does make sense that Marshall should be hated now, when the Supreme Court has actually undermined efforts to undo the re-segregation of America?s public schools.

What galls critics like Sessions and his conservative colleagues is that Marshall spoke of the Constitution, which permitted slavery, being ?defective from the start,? and in Brown was willing to challenge the Supreme Court?s 1896 ruling in Plessey v. Ferguson that held ?separate but equal ? (for blacks and whites) was lawful in public accommodations.

On the Supreme Court, Marshall’s opinions were measured and careful. Even in his dissents, he continually had his eye on history, as we can see from the opinion he wrote in the controversial 1978 Bakke case, which made affirmative action legal but severely restricted the role the government could play in remedying de facto segregation. ?It must be remembered that during most of the past 200 years, the Constitution as interpreted by this court did not prohibit the most ingenious and pervasive form of discrimination against the Negro,? Marshall wrote. ?Now when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.?

Senator Jeff Sessions is, by contrast, a very different figure from Marshall. In 1986 the Senate Judicary Committee turned down his nomination by President Ronald Reagan for a federal district judgeship in Alabama. The reason: Sessions?s views on race.

At the Senate Judiciary Committee hearings, it was clear from the start that Sessions was an accident waiting to happen. As the evidence of his views on race piled up, he kept digging himself into deeper and deeper holes. Sessions acknowledged that he might have called the NAACP ?un-American or Communist.? He defended himself by saying, ?I meant no harm by it.? As for his assertion that he considered the Ku Klux Klan an acceptable organization until he learned its members smoked marijuana, Sessions argued that he was quoted out of context.

For the Senate Judiciary Committee, which in 1986 had a Republican majority on it, Sessions?s racial views were too much to ignore. They were unwilling to seat a federal court judge from Alabama who reminded everyone of that state?s notorious segregationist governor, George Wallace. Sadly, what the Senate Judiciary Committee could not anticipate in 1986 was Sessions?s revenge for his past humiliation?his willingness to slander the memory of Thurgood Marshall.