He nicknamed her "Shorty," and she refers to him as one of her "judicial heroes," but in their storied lives and careers, neither of them probably expected what transpired in yesterday's meeting of the Senate Judiciary Committee. As Solicitor General Elena Kagan sits on the precipice of becoming only the fourth woman in history to sit on the Supreme Court, the name of another barrier-breaking justice, Thurgood Marshall, may turn into her biggest liability.
With no history of judicial activity to examine, Republicans are focusing on the year Kagan spent clerking for Marshall in 1988, when she was 28-years-old. To the befuddlement of some, Republicans are decrying the civil rights pioneer as a "well-known liberal activist judge," as Senator Jefferson Beauregard Sessions III, the raking Republican on the Judiciary committee, described him. Senator Orrin Hatch (R-UT), told The Salt Lake Tribune that he wasn't sure whether he would vote to confirm Marshall if given the chance.
"Let's admire the man for the great things he did, but let's not walk over and wipe out the things that really didn't make sense as an obedient student of the practice of law," Hatch told MSNBC on Monday.
Conservatives say they are disturbed by what they call Marshall's philosophy of judicial activism, pointing to statements he made like, "You do what you think is right and let the law catch up." Marshall's name was brought up 35 times yesterday, in contrast to President Obama's, who was only mentioned 14 times.
David Wall Rice, friend of the show and professor of psychology at Morehouse College, has his own opinions about why Marshall's time on the bench has become such a lightening rod for his former protégé. He says the criticism of Marshall "reeks of institutional racism" when considering that the senators most critical of Marshall come from states like Alabama, Texas, and Arizona. Rice also gives his analysis of what he believes conservatives really mean when talking about judicial activism.