What Would Thurgood Marshall Think

Never in my wildest dreams would I have believed that the GOP would launch an attack on the memory of Thurgood Marshall, but they did.

Oppo researchers digging into Elena Kagan’s past didn’t get the goods on the Supreme Court nominee — but they did get the Thurgood.

As confirmation hearings opened Monday afternoon, Republicans on the Senate Judiciary Committee took the unusual approach of attacking Kagan because she admired the late justice Thurgood Marshall, for whom she clerked more than two decades ago.

"Justice Marshall’s judicial philosophy," said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, "is not what I would consider to be mainstream." Kyl — the lone member of the panel in shirtsleeves for the big event — was ready for a scrap. Marshall "might be the epitome of a results-oriented judge," he said.

It was, to say the least, a curious strategy to go after Marshall, the iconic civil rights lawyer who successfully argued Brown vs. Board of Education. Did Republicans think it would help their cause to criticize the first African American on the Supreme Court, a revered figure who has been celebrated with an airport, a postage stamp and a Broadway show? The guy is a saint — literally. Marshall this spring was added to the Episcopal Church’s list of "Holy Women and Holy Men," which the Episcopal Diocese of New York says "is akin to being granted sainthood."

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.

Sen. Jeff Sessions (Ala.), the ranking Republican on the panel, branded Marshall a "well-known activist." Sen. Chuck Grassley (R-Iowa) said Marshall’s legal view "does not comport with the proper role of a judge or judicial method." Sen. John Cornyn (R-Tex.) pronounced Marshall "a judicial activist" with a "judicial philosophy that concerns me."

As the Republicans marshaled their anti-Marshall forces, staffers circulated to reporters details of the late justice’s offenses: "Justice Marshall endorsed ‘judicial activism,’ supported abortion rights, and believed the death penalty was unconstitutional."

The problem with this line of attack is that Marshall was already confirmed by the Senate — in 1967. He died in 1993. In the audience Monday, his son, Thurgood "Goody" Marshall Jr., sat two rows behind the nominee and listened with amusement to the assaults on his father.

"I was a little surprised," said Goody Marshall. "He would’ve probably had the same reaction I did: It’s time to talk about Elena."

But talking about Elena is boring. Her credentials and her lack of a paper trail make her confirmation a virtual certainty. Further aiding her has been the steady flow of distraction, from the gulf oil spill to the death Monday of Sen. Robert Byrd (D-W.Va.). Most lawmakers, before addressing themselves to Kagan, delivered brief Byrd eulogies; Sen. Scott Brown (R-Mass.), introducing Kagan to the panel, offered this illogical wish: "I’d like to express my heartfelt condolences to Senator Byrd and his family for the loss that they’ve suffered."… [emphasis added]

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It appears that the GOP would overturn Brown v. Board of Education if they could.  I view attacking such an icon of civil rights in a ludicrous attempt to discredit the nominee of America’s first black President nothing short of racist.  I applaud Goody Marshall for the class he showed in his response.  And leave it to Beefcake Brown to offer condolences to the departed.

Keith Olbermann and Howard Fineman discussed  the hearing.

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So what would Thurgood Marshall think?  I trust he would call us to action, lest we lose what he helped gain for our society.