No fireworks, no gotcha moments, in the Elena Kagan confirmation hearings (thus far), so we might as well focus on something else.
Say, how about Thurgood Marshall! Kagan once clerked for Marshall, a former solicitor general who became the court's first African-American justice in 1967, and somehow Marshall — who left the court in 1991 and died less than two years later — has become all the rage. At least, all the Republican rage on Day One of the hearings.
Dana Milbank of the Washington Post wrote about it this morning. He quoted Sen. Jon Kyl (R-Ariz.) as saying, "Justice Marshall's judicial philosophy is not what I would consider to be mainstream." The Judiciary Committee's ranking Republican, Jeff Sessions (Ala.), called Marshall a "well-known activist." Marshall had a "judicial philosophy" that "concerns" Sen. John Cornyn (R-Texas).
This made no sense to Milbank:
It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? ...
With Kagan's confirmation hearings expected to last most of the week, Republicans may still have time to make cases against Nelson Mandela, Mother Teresa and Gandhi.
Howard Fineman at Newsweek had a similar thought:
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.
This strategy could be "risky," writes Naftali Bendavid on the Wall Street Journal's Washington Wire blog, "given the regard for Marshall in the African-American community."
Earl Ofari Hutchinson, blogging at the Huffington Post, goes considerably further, writing that the GOP is "shamelessly ... sullying the name" of Marshall.
But this is 2010. At least let's take a quick detour back to '67.
One person no longer around today was quite opposed to Marshall when President Johnson nominated him to the court. He was so concerned about Marshall, in fact, that he wrote to FBI Director J. Edgar Hoover, wondering whether allegations of Marshall's ties to Communists were true. We don't know what Hoover told him, but he voted against Marshall nonetheless.
That person was Sen. Robert Byrd of West Virginia.
(For the record, the Senate vote to confirm Marshall was 69-11, with 20 senators not voting. The 11 opponents included nine Democrats from the Deep South — James Eastland of Mississippi, Allen Ellender and Russell Long of Louisiana, Sam Ervin of North Carolina, Lister Hill and John Sparkman of Alabama, Spessard Holland of Florida, Fritz Hollings of South Carolina and Herman Talmadge of Georgia — and one Republican, Strom Thurmond of South Carolina. The other Democrat was Robert Byrd.)