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The Kagan Hearings: How Low Can You Go?

07/01/2010 11:14 am ET | Updated May 25, 2011

Morals are such a tricky thing. For all their general basis in society, they are so personal. Still, it's hard to envision Republicans in Congress sinking much lower morally than they have.

After all, blocking unemployment insurance extensions for Americans out of work is pretty darn low.

And apologizing to BP as 60,000 barrels of oil spew daily into the Gulf of Mexico? Good heavens, not many politicians can pull that off without being struck down by lightning.

None of any of this concerns political philosophy, mind you. There always should be differences of opinion. But playing politics as if it's just a game of dodgeball, when actual human lives are at stake, that's another matter entirely.

Like slamming the president for getting BP to pay $20 billion for the disaster it caused. Or blasting a stimulus program while gratefully accepting its funds and taking credit for the projects they create.

That sort of thing. The kind of things you'd be embarrassed to admit to your mother you did, knowing she'd burst into tears. "How could you?? Is this how you think we raised you?! When someone is in trouble you help them!"

That sort of morally-empty thing.

Like voting unanimously for purely political reasons to block banking reform and health care reform in the middle of crises -- solely because you don't want the President of the United States to succeed.

But no, as remarkable as all these things are for their absence of conscience, Republicans in Congress this week even topped themselves. (Or, more accurately, bottomed themselves.)

This week, Republican senators on the Justice Committee actually attacked Supreme Court nominee Elena Kagan for clerking for Justice Thurgood Marshall.

In doing so, they raised an even bigger question on themselves. But we'll get to that in a moment.

First, though, let's step back a moment. Let's even forget who Thurgood Marshall was. And forget too his place in American history. Let's just consider purely Elena Kagan's job that she is being disparaged for:

Elena Kagan clerked for a Supreme Court Justice.

That's it. Period. The highest court in the nation. A justice who was approved by the Senate itself -- by a vote of 69-11, including 32 Republicans. A position that law school graduates achingly dream about for its immense, impeccable honor, experience and prestige.

Elena Kagan clerked for a Supreme Court Justice.

That's the sort of thing that goes on the "credit" side of your resume. Whoever the Supreme Court Justice is. Any one. Even if it's Clarence Thomas.

But of course Thurgood Marhsall is not just any Supreme Court Justice. He's - well, Thurgood Marshall. One of the most renowned justices in U.S. history. (This is one reason why actually studying history is A Good Thing.)

And there, gobmackingly, are Republican senators Jeff Sessions, John Kyl, John Cornyn, Lindsey Graham and Chuck Grassley trying to turn Thurgood Marshall's so-called "activism" into something unacceptable.

"Justice Marshall's judicial philosophy," said John Kyl (R-AZ), "however, is not what I would consider to be mainstream."

Boy, howdy, does that speak volumes.

In fairness, Thurgood Marshall in 1954 was not mainstream. That's sort of the very point. The mainstream back then allowed for the racial segregation of black children in the American school system. The mainstream allowed for discrimination against all black people in America.

It's hard to imagine anyone today thinking that the "mainstream" in 1954 that allowed racial bigotry to exist was a good thing. But shockingly -- read it again -- John Kyl's statement above is in the present tense!

That Thurgood Marshall was out of the mainstream and an activist is specifically what allowed him as the lawyer who argued Brown vs. the Board of Education to help end segregation in schools. But it goes much further, because the Supreme Court ruling (and it's worth noting that the Supreme Court agreed with the out-of-the-mainstream, activist Thurgood Marshall) said in its landmark decision that the existing law "violates the 14th amendment to the U.S. Constitution, which guarantees all citizens equal protection of the laws"...and this, in turn, helped lay the groundwork for the Voting Rights Act and Civil Rights Acts that were to come.

Most good-hearted people think that's a good thing.

And it's all because Thurgood Marshall was out of the mainstream. And an activist. And the end result was that he himself became the first black man confirmed as a Supreme Court Justice.

Who Elena Kagan clerked for. As honorable a position as there has been with the Supreme Court.

It's worth noting, too, that TPM "asked three of the top Republicans on the Judiciary Committee which of Marshall's opinions best exemplified his activism." Not any could name even one case.

And the Republican Party keeps sinking low on the moral consciousness-o-meter. Thinking that slamming the icon of integration is a winning campaign theme for the party.

But as stated above, there's a deeper question that demands being asked to all Republicans who actually criticize Elena Kagan for clerking for Thurgood Marshall. And that question is --

If Thurgood Marshall was the nominee sitting before you today, rather than Elena Kagan...would you vote to confirm him?

After all, he would be outside the mainstream.

Or, at least outside what you consider the mainstream. For the rest us, thank goodness ol' man river, he just keeps rolling along.

As the GOP sinks waist deep in the Big Muddy.