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The surprising star at Elena Kagan's hearing: Thurgood Marshall

Because Obama has avoided engaging the empathy debate, Republicans tried to use Kagan's mentor and former US Supreme Court Justice Thurgood Marshall as a way to taint Kagan's reputation.

By John Paul Rollert / July 8, 2010

New Haven, Conn.

The Kagan hearings were a sleepy affair. With no 12th-hour revelations and a candidate who acquitted herself as cagey and well qualified, the solicitor general proved adept at the kabuki dance of the Supreme Court confirmation process.

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Yet there was one exception to the otherwise humdrum hearings: the bewildering decision by Republicans to taint Elena Kagan by her association with Thurgood Marshall.

Yes, that Thurgood Marshall – hero of the civil rights movement, mastermind of Brown v. Board of Education, and the first African-American Supreme Court justice.

If the senators had spent their time asking Ms. Kagan to indulge in fond reminiscences of her former boss, nobody would have blamed them, after all, Marshall is an American hero of the very first rank. But they didn’t, and the reason is that they were determined to make the late Marshall their lead witness for President Obama’s “empathy standard.”

The infamous e-word

You may recall that, before he nominated Sonia Sotomayor, the president called empathy “an essential ingredient for arriving at just decisions and outcomes” and thus an indispensable tool for US Supreme Court justices. When it came to filling vacancies on the court, he said, a superior legal mind was necessary but not sufficient. He would choose nominees capable of “understanding and identifying with people’s hopes and struggles,” nominees, that is, with a special gift for empathy.

After the president’s announcement, Republicans immediately began climbing the barricades.

Utah's Sen. Orrin Hatch called empathy “a code word for an activist judge.” Fox News political commentator Charles Krauthammer declared, “if nothing else, [conservatism] stands unequivocally against justice as empathy – and unequivocally for the principle of blind justice.” And Wendy Long of the newly rechristened Judicial Crisis Network accused Mr. Obama of aiming to “become the first president in American history to make lawlessness an explicit standard for Supreme Court justices.”

Senate Democrats, for their part, did not exactly take up arms. Aside from a few muted protests in the Sotomayor hearings, they let the Republicans darkly define the word. More than anything else, it seemed, they hoped it would simply go away.