Knowing Elena Kagan will win confirmation to the Supreme Court, Republican Senators used her confirmation hearing to malign the legacy of Thurgood Marshall.
Marshall believed that when the political process fails to protect the legitimate claims of the poor and the oppressed, the legal system should provide a second resort.
This is what happened in Brown v. Board of Education in 1954.
Which explains why conservative senators were at such pains to denigrate the Marshall heritage–he represented a theory of law they abhor. Not all conservatives have accepted the logic of Brown v. Board and the Never in a Thousand Years philosophy of the late 1950s is emerging as a new orthodoxy.
The concept of civil rights has never been popular among conservatives. For a time, they adjusted to the undeniable momentum behind the civil rights movement; but those days are long since gone.
Thurgood Marshall was appointed to the Supreme Court in 1967. It is almost impossible to imagine a person of his judicial philosophy being appointed prior to 1964 or after 1968; the window of opportunity was exceedingly narrow.
Elena Kagan clerked for Marshall and considers him a mentor. But she also works to distance herself from the Marshall legacy. She embraces the death penalty because, as a practical matter, she must. You can’t sit on a jury in a capital case if you oppose capital punishment, and you can’t get elected either. If you want a seat on the Supreme Court, support for the ultimate penalty is mandatory.
Thurgood Marshall knew the American status quo was fundamentally unjust. He was rejected by the University of Maryland law school in 1930 because of his color. Had he been accepted, Marshall might have adopted a mainstream pragmatism. Instead, he went to Howard University where he came under the influence of people like Charles Hamilton Houston who took the concept of equal justice under law seriously.
As a Jewish woman, Elena Kagan has likely experienced rejection and prejudice; but nothing like what Marshall and his black contemporaries faced.
The resurgence of 1950s conservatism is apparent in the Marshall-bashing on display this week and in the thin-gruel liberalism exhibited by the nominee. Conservatives, for all their setbacks, are on the offensive; liberals went into a defensive crouch in the chaotic years between 1966 and 1980 and have yet to stand up for their ideals.
In fact, in twenty-first century America, only conservatives can have ideals; liberals must present themselves to the world as fuzzy pragamatic survivalists.
In an environment like this, trying to bring the criminal justice system into line with Thurgood Marshall’s vision is an uphill slog.
Friends of Justice 
The GOP has its sights set on rolling back the calendar about 80 years, pre New Deal, pre Civil Rights.
Not all of us….sorry Alan, gross generalizations really are annoying. I thought you might rise above this. You have overlooked a HUGE portion of conservatives….at least every conservative I know and converse with. We believe that true conservatives are Fiscal and Governmental Conservatives; the federal government should be small and it’s spending inline with it’s size: small. It’s position within the republic should not overshadow the role or position of the states within that republic. The social conservatives have left a gaping hole in the GOP for the true Jeffersonian Conservative in my opinion. Whilst Jefferson was obviously concerned about God in America – in our dialy lives; it was also obvious he would not use that as a Control – it was not a limiting portion of his view of Freedoms. As we know, most right wing conservatives have overlooked the love and forgiveness which our religion teaches us. We so easily ignore the logs in our eyes to forcefully remove the splinters in someone’s eye. The Freedoms proscribed by Jefferson’s religious beliefs obviously did not end at those; the religion is not a barrier as many try to misuse it – like many of the current narrow minded social conservatives whom have taken over the GOP. The far right know how the saying, a squeaky wheel…..
Please, rise above and do not alienate your potential allies by generalizing and characterizing other whom might not proudly wear your liberal cloak. There is a middle ground where we can walk hand and hand.
By suggesting that some conservatives didn’t accept the verdict of Brown vs. Board I imply that many did. My later reference to conservatism isn’t as nuanced because conservatives of all stripes are on the offensive these days. My point in the second part of the post is that liberals tend to be apologetic and defensive. I didn’t mean to suggest that all conservatives oppose the fruits of the civil rights movement since, as you suggest, that is manifestly untrue.
Fair enough.
Alan what do you think about the “effective interference by governments” as set out in the encyclical Rerum Novarum?
Rerum Novarum was released in 1890, a time of great turmoil in Europe. We always touched on this encyclical when I was a teaching fellow at Southern Seminary in Louisville in the early 1990s. The idea seems to be that government has a responsibility to interfere with business interests when the legitimate rights of both capital and labor are out of balance. As a practical matter, this meant intervening on behalf of the worker. Because governments were taking a “liberal”, that is laissez faire, approach to the problem, Leo argued, communists and socialists were exploiting the situation. The idea seemed to be that society could reform itself without resort to the kind of violent insurrection being preached at the time. Sounds like a sane approach to me. It also shows that Roman Catholic social teaching has a social or communal element often missing in the evangelical tradition that shaped me.