We have oftentimes said here that politically, President George H.W. Bush’s nomination of Clarence Thomas to the Supreme Court in 1991 was a master stroke. Thurgood Marshall’s seat was to be filled, and eliminating from the court its solitary Black face wouldn’t be too politically correct, would it? So along comes Thomas, appeasing the more easily impressionable among us, hoodwinked into believing that a “brother” continues to sit in this high place. Brilliant!
But what a brother Thomas has turned out to be for the almost two decades he’s been sitting there! What a slap in the face it’s been to people of color that Mr. Justice Thomas is routinely expected to be numbered with the right-wing opponents in any matter before the court that is geared toward further leveling of the playing field.
Sometimes the wheels of justice turn rather slowly…even when it’s justice sought in no lesser environment than its ultimate forum. How ironic that Elena Kagan, President Obama’s nominee to fill the vacancy created by Justice John Paul Stevens’ announced retirement, was one of Justice Thurgood Marshall’s clerks and seems to have nothing but absolute respect for the man and his legacy. Thomas being designated to slide into Marshall’s seat was insult writ large. All these years later, a Marshall protégée may yet bring us to re-engaging the principles and awesome contribution of a titan of yore.
The Obama team, in the countdown to the start of Kagan’s confirmation hearings by the Senate Judiciary Committee, has apparently been carefully orchestrating the process. Reportedly, a major sink hole they’re studiously trying to avoid is the conservative lobby’s attempt to characterize Kagan as someone who is, to quote one media report, “reflexively liberal.”
Small wonder that the administration has been beating the drums about conservative elements willing to go on record with their support for Kagan. Recently, backing came from a pretty impressive showing of law school deans across the country – 69 of them, including, the nomination “handlers” took pains to underscore, some conservatives in that group.
Of course the smattering of support from folks on the right is lost in the torrent of attacks any Obama nominee would generate from that quarter. Somewhere along the way it became anathema for anyone who dared to mix it up in the political arena to sport a “liberal” tag. Intimidated by a great rightward push the opinion shapers kept telling us about, many who espoused liberal beliefs felt constrained, it seemed, to run for cover or, at the very least, scale back from any full-throated declaration of liberal inclinations.
Not so, among conservatives. Recall, if you will, one Harriet Miers, who could by no stretch be considered even remotely liberal or centrist. George Bush, presumably well knowing the lady’s political pedigree, nominated her for a Supreme Court vacancy. And the right side movers and shakers had no compunction about assembling a juggernaut to torpedo her nomination in favor of a choice that was much more the conservative firebrand they demanded from Bush. Leaders of the movement obviously feel some kind of righteous entitlement to flaunt doctrinaire conservative values in such fashion, a far cry from what’s likely to emerge from any source that hints at liberal adherence.
Hence the concern for demonstrating that not all who gather under the conservative banner have a thumbs-down response to Kagan. One suspects that many on that side of the fence who indicate support for Kagan have felt duty-bound to do so out of respect for her outstanding intellect. They may be on the opposite side of the Obama mind-set and agenda most of the time, but probably grudgingly acknowledge that he wasn’t just blowing smoke when he referred to Kagan as one of the country’s most brilliant legal minds. We know from experience, however, that sober acknowledgment on that order is not the norm, certainly not among those making the loudest noise on that side of the ideological divide.
Not surprisingly, too, there’s been, and will doubtless continue to be, no shortage of spears hurled over her never having been a sitting judge. The slash-and-burn antagonists making that particular racket somehow conveniently forget that Kagan is hardly a trailblazer in that respect, that two chief justices of the last four — William Rehnquist and Earl Warren, nominees of Republican presidents to boot — had no trial judge experience either when named to the court.
After all the posturing and spotlight grabbing have run their course, though, there’s no reason to think Elena Kagan won’t be confirmed as the court’s newest member. She will fittingly proceed to where once her mentor sat. Thomas succeeding Marshall was ugly. By contrast here’s a bit of reassuring Kagan-Marshall bonding, via a 1995 note she wrote while working in the Clinton White House: “Is there a need for someone to keep on top of the affirmative action issue – for example by working with justice on its review of all affirmative action programs? I know the issue well (because I teach it) and care about it a lot; if there’s stuff to do here, I’d love to do it.”
It’s not possible to forget that Bush the First and his confederates conspired to stain Thurgood Marshall’s court imprint by serving up Thomas in his wake. A Justice Kagan figures to accelerate that bit of dastardly business at last beginning to fade from our consciousness.