Lacking any controversial court rulings or off-the-cuff remarks to beat up on, Republicans have seized on a rather unusual strategy for attacking Supreme Court nominee Elena Kagan. In what might be called the “guilt by association approach,” on the first day of Kagan’s confirmation hearings, GOP senators hammered away, not at her record, but at that of legendary Supreme Court Justice Thurgood Marshall. Kagan, who clerked for Marshall, has called him her hero. Why the GOP thinks trying to sully the name of a justice who has become synonymous with the civil rights movement is a good idea is something of a mystery. After all, their party doesn’t count a single African-American senator in its ranks. But one by one they plowed ahead, undeterred even by the presence of Marshall’s son sitting behind Kagan in a show of support.
Arizona Sen. Jon Kyl seemed to be the designated hitter on Kagan “channeling” Marshall. In his opening statement Kyl said, “Ms. Kagan identified Thurgood Marshall as another of her legal ‘heroes.’ Justice Marshall is a historic figure in many respects, and it is not surprising that, as one of his clerks, she held him in the highest regard. Justice Marshall’s judicial philosophy, however, was not what I would consider mainstream. As he once explained: ‘You do what you think is right and let the law catch up.’ He might be the epitome of a results-oriented judge.” Texas Sen. John Cornyn continued the theme, and also wrote an op-ed in USA Today Monday reinforcing the idea. It’s clear that the GOP intends to continue with this line of inquiry during the rest of the hearing.
Given the party’s already poor showing among minority voters, it’s hard to see how the GOP wins many points by bashing Marshall, especially given that there is exactly zero chance that Kagan won’t be confirmed. Of course, a cynic might conclude that Republican senators are using the Marshall attacks to appeal to their angry white Tea Party base. And unlike with Sonia Sotomayor, the party isn’t so restrained in its white pandering because the nominee isn’t a minority herself. Either way, trying to use the Kagan hearings to tarnish the record of someone like Marshall doesn’t reflect well on them.