Thurgood Marshall Attack: New Wrinkle in GOP Hit Plan on Kagan

06/29/2010 10:57 am ET | Updated May 25, 2011

GOP Senate Minority Leader Mitch McConnell bluntly said it and ranking GOP member on the Senate Judiciary Committee, Alabama GOP Senator Jeff Sessions hinted at it. The "it" is a filibuster against Elena Kagan's Supreme Court nomination. McConnell won't lead a filibuster. Barring any smoking gun revelation of incompetence, impropriety, or wrongdoing by Kagan, the GOP doesn't have the votes or the political will to block her confirmation. It's pure bluster. But it's bluster with a crafty purpose. That is, to assure the GOP that she'll play it strictly by the moderate and conservative playbook on any and all decisions that even remotely touch on race and class issues on the bench, as well as abortion, gun rights, the war on terrorism, gay rights, and tests of the limits of executive power and decision-making. These are traditional conservative sacrosanct, litmus test issues for any prospective Supreme Court pick; and even more so when that pick is made by a Democrat in the Oval Office.

The GOP hit points against Kagan can practically be recited while asleep. She's too activist, too far out a liberal, too pro victim's rights, affirmative action, civil liberties, and for the more rabid, a closet identity politics baiter. GOP senators will selectively pluck a line here, a thought there from Kagan's youthful writings in law journals, comments she made when she clerked for Supreme Court Justice Thurgood Marshall, and briefs that she submitted while solicitor for Clinton and Obama. They'll cite her "not sympathetic" opinion on a constitutional challenge of Washington D.C.'s gun-control law. An opinion she later reversed. They'll jump on her line about male jurists: "As men and as participants in American life, judges will have opinions, prejudices, and values." They'll endlessly cite her excluding of military recruiters when she was Dean of Harvard Law School. (The policy was solely in keeping with Harvard's policy of not allowing military recruiters on campus in protest to the military's don't ask, don't tell policy.) They'll cobble together a few more of her spare, out of context, quips to paint a damning picture of a liberal, activist Kagan.

Given the high stakes, the intense media and public scrutiny she's gotten and will continue to get, and the hard pounding from the right, the great fear is that Kagan could massage or even retreat from her moderate views on law and politics during the hearings. She'll do what's required of all nominees, say the right things, and generally come off as a reasoned pick. But then that's really incidental to the point of the GOP exercise with her. McConnell and company are not really concerned with derailing her confirmation.

Their goal remains: to bully, cow, and badger her to insure that she toes the line not solely before the panel, but on the bench. The GOP hit plan is to send a firm message to the Obama administration that conservative politics and judicial and legal philosophy remain a potent force in court decisions on issues of race, gender, the environment, the consumer, and civil liberties and criminal justice issues.

The GOP attackers also are determined to use Kagan as their foil in their fierce and on-going battle to influence public opinion. The instant Obama announced Kagan as his court pick, the massive effort to tar and brand her as a race biased, judicial activist kicked into high gear. Kagan clerked for Thurgood Marshall. The connection between the two was continually played up. Marshall was the court's consummate liberal, activist judge, and made no apologies for it. The aim was to hang the guilt-by-association tag of 'activist' in the waiting judge on her. Kagan takes great pride in her work with and mentoring by Marshall. But she is not Marshall.

Hitting hard on Kagan as a judicial activist has paid another small dividend. Kagan did a mea culpa for her earlier view that men often make narrow and set decisions in life and on the bench. She said that she was "a dumb kid" when she wrote that.

The conservative assault has already sowed doubts about Kagan among more of the public. A CNN poll in mid June found that support for her confirmation had dived ten percent. Then there's always the possibility of a slip, or a too confrontational pose at any point during the hearings. This would be pounced on and held up by conservative attackers as proof that she doesn't have the right stuff to be a fair and impartial judge.

That's remote. Kagan has been through the confirmation wringer before. She knows the protocol and she won't violate it. She understands that her every word will be taken by conservatives as a virtual etching on the Ten Commandment stone. She knows not to give her conservative attackers any ammunition to take lethal shots at her. That of course, won't stop the GOP from a full court press with its hit plan; a plan that shamelessly includes sullying the name of Thurgood Marshall.

Earl Ofari Hutchinson is an author and political analyst. His new book is How Obama Governed: The Year of Crisis and Challenge (Middle Passage Press).

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