Knowing Elena Kagan will win confirmation to the Supreme Court, Republican Senators used her confirmation hearing to malign the legacy of Thurgood Marshall.
Marshall believed that when the political process fails to protect the legitimate claims of the poor and the oppressed, the legal system should provide a second resort.
This is what happened in Brown v. Board of Education in 1954.
Which explains why conservative senators were at such pains to denigrate the Marshall heritage–he represented a theory of law they abhor. Not all conservatives have accepted the logic of Brown v. Board and the Never in a Thousand Years philosophy of the late 1950s is emerging as a new orthodoxy.
The concept of civil rights has never been popular among conservatives. For a time, they adjusted to the undeniable momentum behind the civil rights movement; but those days are long since gone.
Thurgood Marshall was appointed to the Supreme Court in 1967. It is almost impossible to imagine a person of his judicial philosophy being appointed prior to 1964 or after 1968; the window of opportunity was exceedingly narrow.
Elena Kagan clerked for Marshall and considers him a mentor. But she also works to distance herself from the Marshall legacy. She embraces the death penalty because, as a practical matter, she must. You can’t sit on a jury in a capital case if you oppose capital punishment, and you can’t get elected either. If you want a seat on the Supreme Court, support for the ultimate penalty is mandatory.
Thurgood Marshall knew the American status quo was fundamentally unjust. He was rejected by the University of Maryland law school in 1930 because of his color. Had he been accepted, Marshall might have adopted a mainstream pragmatism. Instead, he went to Howard University where he came under the influence of people like Charles Hamilton Houston who took the concept of equal justice under law seriously.
As a Jewish woman, Elena Kagan has likely experienced rejection and prejudice; but nothing like what Marshall and his black contemporaries faced.
The resurgence of 1950s conservatism is apparent in the Marshall-bashing on display this week and in the thin-gruel liberalism exhibited by the nominee. Conservatives, for all their setbacks, are on the offensive; liberals went into a defensive crouch in the chaotic years between 1966 and 1980 and have yet to stand up for their ideals.
In fact, in twenty-first century America, only conservatives can have ideals; liberals must present themselves to the world as fuzzy pragamatic survivalists.
In an environment like this, trying to bring the criminal justice system into line with Thurgood Marshall’s vision is an uphill slog.