The ghost of Thurgood Marshall was palpably present in the Judiciary Committee chamber during the hearings on the confirmation of U.S. Supreme Court nominee Elena Kagan. Over Kagan’s shoulder, television cameras zoomed in on the face of Thurgood “Goody” Marshall Jr., the late justice’s son and a Washington lawyer himself, as his father’s name was repeatedly invoked. Senators of both parties explored the strong connection between Elena Kagan and Thurgood Marshall. Kagan served as Marshall’s law clerk early in her legal career, and she has written eloquently of her admiration for his work on the bench, calling it “a thing of glory.” Moreover, the trajectory of Kagan’s career has almost eerily tracked that of her early mentor. Both were appointed to the high court after first serving as solicitor general of the United States, with Marshall as the first African-American and Kagan as the first woman to hold that post.
For Republican senators, however, Elena Kagan’s connection to Thurgood Marshall was not a proud link to a path-breaking icon of American law, but rather an opportunity to try to brand Kagan with the loose epithet of “judicial activist.” By this charge, ranking member Jeff Sessions (R-Ala.) and his fellow Republicans appeared to imply a judge who ignores law and precedent to reach preferred results. This slur on Marshall may well have been poor strategy (one commentator compared the assault on Marshall to an attack on Mother Theresa). But it also reflects a profound ignorance of Marshall the jurist and represents a deep distortion of his judicial legacy.
