Thurgood Marshall unlikely to be confirmed

Except that the senators began their statements by paying tribute to their late colleague Robert Byrd, you might have been forgiven for thinking that it was Thurgood Marshall seeking confirmation to the Senate Court, and not his former law clerk Elena Kagan.

Op-ed writer for the Washington Post, Dana Milbank noticed that Republicans on the Senate Judiciary Committee do not think much of the judicial philosophy of Supreme Court justice and civil rights lawyer Thurgood Marshall:

“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 [Church Publishing, Jun/2010], which the Episcopal Diocese of New York says “is akin to being granted sainthood.”

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.”

Republicans saw trouble in this Marshall fellow. “In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, ‘in his view, it was the role of the courts in interpreting the Constitution to protect the people who went unprotected by every other organ of government,’ ” Kyl complained. … Kagan also emphasized Marshall’s “unshakable determination to protect the underdog,” Kyl said.

Sen. Kyl’s statement on Thurgood Marshall is here.* Stephanie J. Jones, executive director of the National Urban League Policy Institute from 2005 to 2010, has these thoughts.

A sidebar for Episcopalians from Episcopal Archives:

Upon Marshall’s arrival to New York City in 1938, he became a very active member of St. Philip’s Church in Harlem, serving on the Vestry and as Senior Warden and Deputy to the 1964 General Convention. In 1965 the Marshall family moved to Washington, DC and joined St. Augustine’s Church, where his widow, Cissy, still worships. As a devoted Episcopalian, Marshall was also an ardent believer in the separation of church and state. Consequently, Marshall attended Church infrequently after his appointment as Supreme Court Justice, concerned that he would develop biased political views which would influence his judgement. His faith was revealed in his work, however, as he sought justice for all.


*Ms. Kagan appears to enthusiastically embrace Justice Marshall’s judicial philosophy, calling it ‘a thing of glory.’ In 2003, Ms. Kagan wrote a tribute to Justice Marshall in which she said that, in his view, ‘It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government – to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.’ And later, when she was working in the Clinton Administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his ‘unshakable determination to protect the underdog – the people whom no one else will protect.’ – Sen. Jon Kyl (Ariz.)

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