Watching the Senate debate on Elena Kagan’s nomination yesterday afternoon, I wasn’t sure I heard correctly when Sen. Orrin Hatch called the backlash against the GOP’s anti-Thurgood Marshall campaign  “offensive.” I heard correctly. Here’s the transcript :
While Ms. Kagan has not herself been a judge, she has singled out for particular praise judges who share this activist judicial philosophy. In a tribute she wrote for her mentor, Justice Thurgood Marshall, for example, she described his belief that the Supreme Court today has a mission to “safeguard the interests of people who had no other champion.” Ms. Kagan did more than simply describe Justice Marshall’s judicial philosophy but wrote: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.”
Justice Marshall was a pioneering leader in the civil rights movement. He blazed trails, he empowered generations, he led crusades. But he was also an activist Supreme Court Justice. He proudly took the activist side in the judicial philosophy debate. Some on the other side have suggested that honestly identifying Justice Marshall’s judicial philosophy for what it is somehow disparages Justice Marshall himself. I assume that this ridiculous and offensive notion is their way of changing the subject because they cannot defend an activist, politicized role for judges.
Among the members of the GOP who continue to cling to this line of attack, variations of the “I’m not disparaging Justice Marshall, I just don’t like his judicial philosophy” argument are a mainstay. The problem is, Justice Marshall’s work as a Supreme Court Justice—or his “judicial philosophy”—is a key part of his legacy. He’s a hero for his years of work rooting out segregation as a lawyer for the NAACP; he’s also a hero for his adherence, as a Supreme Court justice, to the Constitution’s promise of “protecting individual freedoms and human rights .”
When Hatch attacks Marshall’s work as a justice, he attacks his entire legacy. I won’t call that “offensive”—but I can’t say it’s wise, either.