Kagan V. Marshall

Article excerpt

Byline: Dahlia Lithwick

The GOP's comparison backfired.

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. …