One of the main lines of attack that Republicans on the Senate Judiciary Committee have deployed against Elena Kagan’s nomination to the Supreme Court is her clerkship under under Thurgood Marshall, the first African-American justice. They have had no qualms about blasting the civil rights legend, with Sen. Jeff Sessions (R-AL) attacking Kagan’s association “with well-known activist judges who have used their power to redefine the meaning of our Constitution.” On Monday alone, Republicans mentioned Marshall 35 times during the hearing. By comparison, President Obama’s name was uttered only 14 times.
But today, Sen. Tom Coburn (R-OK) went further than merely criticizing Marshall, telling ABC’s Top Line that he has “no idea” whether he would have voted to confirm Marshall, even while knowing his “entire record as a justice”:
KARL: How would you have voted, knowing all that you know — I mean, now you know his entire record as a justice — would you have voted no on a Thurgood Marshall nomination?
COBURN: I have no idea. I don’t know his writings. I think that’s an important part of her history, but not as important the two things that I just mentioned
Coburn joins fellow Judiciary Committee member Sen. Orrin Hatch (R-UT), who said yesterday that it was “hard to say” whether he would have supported Marshall. As Salon’s Steve Kornacki noted, “That’s a rather stunning statement when you consider the dynamics of Marshall’s 1967 confirmation.” Only 11 senators voted against Marshall, and their opposition “had everything to do with race — and, more specifically, with lingering white Southern resentment of the court’s 1954 school desegregation ruling (in which Marshall, as the NAACP’s chief counsel, had played a leading role).” All 11 were White and Southern, and most had signed the “Southern Manifesto,” a pro-segregation document drafted by the late Sen. Strom Thurmond.
Moreover, Republicans can’t seem to provide any evidence to support their claim that Marshall was an “activist” judge. Talking Points Memo asked Coburn, Hatch, and Sessions which of Marshall’s opinions best exemplified his activism — “none of them could name a single case.” As the National Urban League’s Stephanie Jones wrote in today’s Washington Post, “Unlike many of his detractors, past and present, Marshall showed the utmost reverence for the Constitution” by defending equal rights for all Americans.
Commenting on the absurdity of Republicans’ attacks on Marshall, the Washington Post’s Dana Milbank wrote, “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.”