


One Supreme Court justice has been playing a prominent role in these hearings, and he died 17 years ago.

NPR's Ari Shapiro reports on Kagan's mentor, Thurgood Marshall.

ARI SHAPIRO: Thurgood Marshall is having a moment in the spotlight. On Broadway, Laurence Fishburne recently played the civil rights pioneer in a one-man play.

(Soundbite of play, "Thurgood")

Mr. LAURENCE FISHBURNE (Actor): (as Thurgood Marshall) As a boy, I came to understand two things marked my family: distinctive names and extreme stubbornness.

SHAPIRO: On Capitol Hill, Marshall's name came up more than 30 times in the first day of confirmation hearings for his former law clerk Elena Kagan. Most of the name-dropping came from Republicans, who did not describe Marshall favorably.

Here was Senator John Cornyn of Texas.

Senator JOHN CORNYN (Republican, Texas; Member, Senate Judiciary Committee): It's clear that he considered himself a judicial activist and was unapologetic about it. He described his judicial philosophy as, quote, "Do what you think is right and let the law catch up."

SHAPIRO: Thurgood Marshall occupies a rarefied place in American history. He made his name as a lawyer successfully arguing Brown versus the Board of Education in the Supreme Court. That's the case that desegregated American schools. Later, he became the first African-American Supreme Court justice.

David Bositis of the Joint Center for Political and Economic Studies is an expert on African-American voters and politicians.

Mr. DAVID BOSITIS (Joint Center for Political and Economic Studies): To many of them, they probably think of Thurgood Marshall as being an even more important figure than the Reverend Martin Luther King Jr.

SHAPIRO: So Bositis has a hard time understanding why Republicans would paint Marshall as the enemy. Even some conservatives share this view.

Mr. MICHAEL GREVE (American Enterprise Institute): I cannot imagine who mobilized this.

SHAPIRO: Michael Greve is a scholar with the American Enterprise Institute.

Mr. GREVE: It makes your jaw drop - at least mine.

SHAPIRO: Greve says Kagan has such a slim record that Republicans are going after her mentors instead. It's just bad luck for the Republicans that the man Kagan clerked for 25 years ago was a civil rights legend.

Robert Alt of the conservative Heritage Foundation agrees.

Mr. ROBERT ALT (Senior Legal Fellow, Heritage Foundation): I don't think it makes sense to attack Thurgood Marshall, but I think that Thurgood Marshall weighs heavily on these hearings.

SHAPIRO: Alt says it's appropriate for senators to ask what Kagan meant when she described Marshall's view of the law as a thing of glory.

Mr. ALT: You can laud his accomplishments both personally and professionally but still question whether or not he approached the law in an objective fashion.

SHAPIRO: It may be a risky strategy, and Democrats think Republicans have already crossed a line.

Representative MEL WATT (Democrat, North Carolina; Member, Congressional Black Caucus): I think it's going to backfire on them, to be honest with you.

SHAPIRO: Democrat Mel Watt of North Carolina is a member of the Congressional Black Caucus.

Rep. WATT: I don't think it does the Republican Party any good to, out of one side of their mouth, say that they're trying to cultivate a more pluralistic party and then go all the way to the other extreme and take just the opposite tack in this confirmation process.

SHAPIRO: But Republicans did not change their strategy from day one to day two. This afternoon, Republican Senator Jon Kyl of Arizona asked Kagan about Marshall again.

Senator JON KYL (Republican, Arizona; Member, Senate Judiciary Committee): Do you believe then that he would have agreed with Justice Roberts that if the big guy has the law on his side, the big guy wins, if the little guy does, then the little guy wins? Or would he have expressed it more along the lines that there's too much agreement with the corporate interests and big business, as one of my colleagues put it?

SHAPIRO: Kagan replied: I don't want to spend a whole lot of time figuring out what Justice Marshall would have said. If you confirm me, you'll get Justice Kagan, not Justice Marshall.

Ari Shapiro, NPR News, Washington.






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