Republicans Target Kagan’s Past
The path to the Supreme Court continues for nominee Elena Kagan as her confirmation hearings continue. During Tuesday’s proceedings, Republican members took Kagan’s clerkship and association with the late Justice Thurgood Marshall to task. They questioned Marshall’s legal career and activist record. Sherrilyn Ifill, a professor of law at the University of Maryland, and John Payton, director-counsel and president of the NAACP Legal Defense Fund, discuss Marshall’s legacy and the scrutiny over Kagan’s service to the first African-American Supreme Court justice.
MICHEL MARTIN, host:
I'm Michel Martin and this is TELL ME MORE from NPR News.
Today we are having some pointed and some not-so-pointed conversations about people who have, in their different spheres of life, been thinking about whether or why race and gender matter. We'll talk with a writer who says that decades after feminists knocked out the women's pages in the newspapers, so-called women's issues are still being quarantined, in her words, online. And we'll talk with two movie critics who are going to tell us about some controversies over the casting in summer movies. And, yes, it's okay to ask why we care.
But, first, we are going to return to the subject of the confirmation hearings of Supreme Court nominee Elena Kagan. Yesterday she was grilled about her views about the late Justice Thurgood Marshall, for whom she clerked. Several Republican senators, Arizona's Jon Kyl, in particular, pressed Kagan on whether she agreed with Marshall's views.
We wanted to talk more about this, so we've called Sherrilyn Ifill. She's a professor of law at the University of Maryland. She joins us from her home office. And John Payton, who is director-counsel and president of the NAACP Legal Defense and Educational Fund. He joins us from his office in New York. Thank you both for being with us.
Professor SHERRILYN IFILL (Law, University of Maryland): Thanks, Michel.
Mr. JOHN PAYTON (Director-Counsel and President, NAACP Legal Defense and Educational Fund): Good to be here.
MARTIN: Now, first of all, I just want to play a little bit of the questioning. Let's - this is Arizona's Jon Kyl. And he's talking to Elena Kagan, who, of course, was solicitor general, she was also dean of the law school at Harvard -about her tenure as a clerk for Justice Marshall. Here it is.
Senator JON KYL (Republican, Arizona): You wrote here that in constitutional interpretation, so this is not just a factual matter between two parties, we're talking about interpreting the Constitution, he says the courts should show a special solicitude...
Ms. ELENA KAGAN (Former Solicitor General, Supreme Court Nominee): I think that was my words.
Sen. KYL: Yes, correct.
Ms. KAGAN: And I meant special as compared with the other branches of government. In other words, that it was the court's role to make sure that even when people have no place else to go, that they can come to the courts and the courts will hear their claims fairly. And that was what I was saying was a wonderful thing about courts.
MARTIN: I wanted to just ask each of you, what was your reaction to this line of questioning? Professor Iffil, I'll start with you. Were you surprised by this?
Prof. IFFIL: I have to say, it was shocking initially and then I thought I kind of understood where it was coming from. It was shocking and it was really disturbing. Disturbing because obviously Thurgood Marshall is a figure of tremendous importance in the legal history and development of this country, not just for African-Americans, but for everyone.
And that members of the Republican Party who sit on the Judiciary Committee decided to use Marshall as a way to attack Kagan struck me as quite manipulative and as really a deliberate effort to interject race into the nomination of a candidate who is white, obviously a white woman. And to kind of try and shift the discussion in a way that would appeal to the Republican base in a way that I thought was tremendously divisive.
MARTIN: Why do you think that it was an effort to inject race into the discussion? Kyl made a point of saying that he thought Marshall was the epitome of a results-oriented judge, and I want to hear more about what you think he meant by that. But why do you think this is about race, Professor Iffil?
Prof. IFFIL: Well, because it really - it kind of almost comes from left field. I mean, obviously, clerking for a Supreme Court justice is regarded as a feather in the cap for most Supreme Court nominees. And this is a Supreme Court nominee, of course, whose record is fairly thin in the sense that she hasn't been a judge, in the sense that she wasn't a litigator. And so, the Republicans did not have very much to go on to be able to demonize her. She's also quite liked by a number of conservative legal minds.
And I think to pull out the Marshall piece, you know, there was this brief mention of her admiration for Abner Mikva, who's also a former judge on the court of appeals in the 7th circuit and quite well known in Washington, but he's a white judge. And instead to talk about Justice Marshall and really not to talk about his jurisprudence specifically, but to engage in this kind of discussion with a name that would resonate for many people, it seemed to me was quite deliberate, quite manipulative, quite unlikely to actually reveal anything about Elena Kagan, but a very nice way for the Republicans on the Judiciary Committee to frame themselves and to the base of their party.
MARTIN: John Payton, let's hear from you. And also, one of the reasons we called you is that the NAACP Legal Defense and Educational Fund was, what we would call it, the premier civil rights law firm in the country, which was the group that helped formulate the legal strategy to attack legally sanctioned, culturally sanctioned racial segregation in this country, which I think most people now agree was an appropriate use of the law.
So, John Payton, I wanted to ask you how you react to this, and what do you think these senators are saying or implying in this line of questioning?
Mr. PAYTON: I think it's very disturbing. Thurgood Marshall founded the Legal Defense Fund. And he changed our country through the Legal Defense Fund, I'd say, dramatically for the better for everyone in this country. They accomplished the ending of racially oppressive and segregated education, of segregated housing, of jobs that are classified by race, of marriages that are classified by race, of, you know, all sorts of things - voting that is denied to African-Americans. Changed our country for the better in ways that we never want to look back to that past and go back in that direction.
For Elena Kagan to say that the justice she clerked for, Thurgood Marshall, is her mentor, is so obvious and natural, you wonder what this is really about. Who could possibly be a better mentor in her legal career than Thurgood Marshall, who dramatically changed this country for the better?
And to now attack her because he is her mentor, I think it is shameful. I mean, it's just shameful. He is not just a icon in our legal jurisprudence, he really is someone that our whole country owes a great debt to because he has made us, all of us, a much better country and a better people.
MARTIN: Can you envision a scenario there where years from now, someone who clerked for Justice Scalia would be asked to defend his or her time in that office? Do you think, John Payton?
Mr. PAYTON: You know, I think that it is natural for a clerk for a Supreme Court justice to say that that person has been a mentor to them. I think that's what John Roberts says about Chief Justice Rehnquist. I just think it's a natural thing, and I'm not sure that, you know, it would be odd if there weren't that kind of relationship.
So, would I think it would be strange that at some time in the future someone who clerked for Scalia would say that Scalia was his or her mentor? I don't think that would be strange at all. I think that the attack, if there were an attack, would be on what that nominee's views were on issues that mattered at that time in the future.
MARTIN: What do you think is being - Professor Iffil, I'm going to go back to Senator Kyl's remark that Marshall was the epitome of a results-oriented judge. What does he mean by that? And do you think that that's a fair assessment? Do you think Justice Marshall would agree with that?
Prof. IFFIL: No. Actually, I think it's such an interesting statement for him to make. And I was fascinated to see that at least some reporters had taken up the members of the Judiciary Committee on their challenge and had asked several of them to specifically identify, and I think Kyl was one of them - to identify, what are the cases that they're talking about that Justice Marshall decided that support their view?
And not one of them, including Orrin Hatch, could name an actual case that supported their views about Justice Marshall. And that's what I mean when I say that it was more about the atmospherics that were created by invoking Justice Marshall than about Justice Marshall's, you know, jurisprudence.
You know, Justice Marshall, people think of him, of course, because we remember him as the civil rights lawyer, but he also was a very important Supreme Court justice. And he issued decisions that - wrote decisions that many people on that Judiciary Committee on both the left and the right would agree with.
One of the most famous ones was a privacy decision called Stanley vs. Georgia, in which Justice Marshall, you know, issued a statement that has very often been cited about the privacy of individuals in their home. And he said, if the First Amendment means anything, it means that the state has no business telling a man sitting alone in his house what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving the government the power to control men's minds.
Is that the man that members of the Judiciary Committee were saying, you know, was outside the legal mainstream and that somehow Elena Kagan should have distanced herself from? It's absurd on the very facts of it. But the facts were irrelevant to the presentation that many of them were trying to...
MARTIN: And, finally, let me just play one more clip for you. This is, again, Elena Kagan engaging with Arizona Senator Jon Kyl, a Republican, about her views of Justice Marshall. Let me just play that for you.
Ms. KAGAN: I love Justice Marshall. He did an enormous amount for me. But if you confirm me to this position, you'll get Justice Kagan. You won't get Justice Marshall, and that's an important thing.
MARTIN: And, John Payton, I'm going to ask you how you react to that statement. And is there more you wish to know about who Justice Kagan would be or will be?
Mr. PAYTON: You know, I'd say obviously you'd get Justice Kagan. You know, no one is expecting anyone to actually channel Thurgood Marshall, as much as we'd like to see that in these, I'd say, very challenging times. We're going to get Elena Kagan. And would I like to know more about where she is? I think everyone always wants to know more about nominees. It's very hard to actually do that. But we always want to know more.
Let me go back to the point about Justice Marshall and being, you know, directed towards outcomes. You know, he served on the 2nd circuit, where you sit on panels of three. So he has to persuade other members of the panel. I believe he wrote something like 98 opinions and was never reversed by the Supreme Court. He serves on the Supreme Court, the only way you can actually get a result there is to persuade at least four other members of the court that on the law you are right. And, often, more than four other members of the court he persuaded.
So, you have a very tough time pointing to an opinion he wrote that is driven by an outcome, because the process is he has to convince other members of the court that he is on, that he is right by showing them what the law is and what the outcome, you know, is that that law now requires.
MARTIN: Well, we appreciate your perspective on that. John Payton is director-counsel and president of the NAACP Legal Defense and Educational Fund. He joined us from his office in New York.
Sherrilyn Iffil is professor of law at the University of Maryland. She joined us from her home office. And I thank you both for speaking with us.
Prof. IFFIL: Thank you. Transcript provided by NPR, Copyright NPR.