On the eve of the opening of the Senate Judiciary Committee hearing on Solicitor General Elena Kagan's nomination to the US Supreme Court, Obama administration aide David Axelrod suggested that critics of the nominee were an “opposition in search of a rationale.”
At the confirmation hearing Monday, senior Republican senators seemed to be determined to prove Alexrod right.
Their primary complaint with regard to Kagan appeared to be with her respect for former Superme Court Justice Thurgood Marshall, the civil rights and civil liberties lawyer who was the first African-American to serve on the high court.
Alabama Senator Jeff Sessions, who even by Southern Republican standards will win no "Mr. Congeniality" awards, dismissed Justice Marshall—who as chief counsel for the NAACP was one of the epic figures in the history ofd the civil rights struggle and during his judicial tenure emerged as a stalwart defender of the First Amendment rights of dissenters on the right and the left—as a “well-known liberal activist judge.”
Sessions made his comments to a hearing room where the late justice's son, Thurgood Marshall Jr., was seated behind Kagan, who clerked for the elder Marshall as a young lawyer.
Texas Senator John Cornyn complianed the hearing about Justice Marshall's "judicial philosophy" and argued that "it is clear he considered himself a judicial activist and was unapologetic about it," while Utah Senator Orrin Hatch opined to reporters during a break in the proceedings that much of Justice Marshall's record "really didn't make sense as an obedient student of the practice of law."
Another key Republican, Arizona Senator John Kyl, griped about Justice Marshall's sympathy for "underdogs."
Kyl bemoaned the fact that Kagan "wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government."
Building his "case" that Kagan is too inclined to consider the circumstance of those who lack power and privilege, Kyl grumbed about how, "later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog."
She respects champions of civil rights.
She is sympathetic to those who might not able to employ the most expensive lawyers in order to "buy justice."
Ultimately, this line of attack, while perhaps unsettling, is the best indication that Kagan -- who presented herself to the committee as an judicially "modest," and rigidly centrist, nominee who believes "we come closest to getting things right when we approach every person and every issue with an open mind"—will be endorsed by the committee majority (perhaps even with some Republican votes) and by the full Senate (almost certainly with Republican votes.)
Thurgood Marshall Jr. did admit to being "taken aback" by the amount of attention devoted to a former justice. "It almost seemed at times as if it was a rehearing on my father's nomination," he said.
But that's the key. If all that the “opposition in search of a rationale” can muster against Kagan is the fact of her association with Justice Marshall, the best bet is that she will be confirmed.
In the partisan hothouse that is the current Senate, however, it is unlikely that Kagan will be confirmed by the same margin as Justice Marshall, who was approved on a 69-11 vote in 1967.
Notably, Justice Marshall received the vote of every Republican senator but one, that of former States' Rights Party presidential candidate Strom Thurmond. The other ten "no" votes came from segregationist Democrats from the Deep South and one border-state senator, Robert Byrd of West Virginia, who, amusingly, complained that Marshall's nomination would create an "activist majority" on the high court. (Byrd would come to regret his stances and his statements during the civil rights era.)
The leader of the opposition to Justice Marshall's confirmation was North Carolina Senator Sam Ervin Jr., a Democrat.
The chief champion of Justice Marshall before the Senate vote forty-tyree years ago was a Republican, Jacob Javits of New York, who condemned critics of the nominee for "rearguing past decisions on the court with which they disagree."
Now, the Republicans are doing the rearguing, not the Southern segregationist Democrats. But the fundamental reality is a steady one: when the opposition obsesses about previous decisions of previous justices, the current nominee does not have much to worry about.