Litigation

Second Day: Kagan Defends Justice Marshall

By Peter Hardin

With  Justice Thurgood Marshall and Chief Justice John Roberts Jr. “on trial” at Elena Kagan’s confirmation hearings, as one commentator portrayed it, President Obama’s nominee defended Justice Marshall today.

At the outset of the second day of her hearings, Kagan “defended her view of Marshall, for whom she clerked in 1988, telling the committee that he played a major role in making the principle of equal protection under the law a reality for minorities,” according to a Washington Post article.

Kagan made her remarks in the context of partisan clashing Monday “over judicial restraint and the proper reach of government,” as the Post characterized the first day’s statements.

Writing in Slate, Dahlia Lithwick focused on a largely partisan slugfest Monday where “Democrats really, really hate John Roberts” and Republicans accused Kagan of having clerked for “a well-known liberal activist judge.” Lithwick saw a theme arising from the political pounding:

“[T]he reason Marshall and Roberts are the ones on trial here is…quite plain: Republicans fear that, in this confirmation hearing, Kagan is pretending to be just what Roberts pledged to be (temperate, centrist, and humble), but that once she takes the bench, she will become Marshall (legendary, visionary, liberal).”

Among Democrats criticizing Justice Roberts was Sen. Sheldon Whitehouse of Rhode Island, who took issue with the justice’s characterization at his own hearing of the role of a judge as impartial umpire. “For all the talk of ‘umpires’ and ‘balls and strikes’ at the Supreme Court, the strike zone for corporations gets better every day,” Whitehouse said.

Republican Sen. John Cornyn of Texas was among Republicans bringing up  Justice Marshall and Kagan’s association with him.  Cornyn said, “[I]t is more about his judicial philosophy [is] what concerns me, and this has already been mentioned: it is clear he considered himself a judicial activist and was unapologetic about it.”

In her own opening statement, Kagan, a former Harvard Law School dean, took a middle route.

?The Supreme Court is a wondrous institution. But the time I spent in the other branches of government remind me that it must also be a modest one ? properly deferential to the decisions of the American people and their elected representatives,? Kagan said.

One Republican senator, Lindsey Graham of South Carolina, criticized Kagan’s decision as dean to temporarily block military recruiters from Harvard Law School facilities. But Graham also had kind things to say to the woman who Obama picked to be his first solicitor general, the New York Times reported.

?On the war on terror, you could, in my view, if confirmed, provide the court with some real-world experience about what this country is facing, about how the law needs to be drafted and crafted in such a way as to recognize the difference between fighting crime and fighting a war,? Graham said. ?So you, in my view, have a potential teaching opportunity, even though you?ve never been a judge, because you?ve represented this country as solicitor general at a time of war.?

You can learn background about Kagan and her nomination from Gavel Grab and Justice at Stake?s ?Replacing Justice Stevens? page, and you can track her confirmation hearings by clicking on Justice at Stake?s Twitter page.

Full post as published by The Gavel on June 29, 2010 (boomark / email).