Supreme Court Nominations

Justice’s Son Defends His Dad, Decries ‘Harsh Innuendo’ in Kagan Hearings


Thurgood Marshall Jr. wants the world to know that Elena Kagan is no Thurgood Marshall.

“Elena Kagan is her own person,” the younger Marshall, a lawyer with Bingham McCutchen, writes in an opinion column for the Washington Post. “I have worked closely with her and know well that she has far too much respect for the rule of law and for the Supreme Court to render decisions by seeking to channel anyone else.”

Kagan was grilled by senators during confirmation hearings this week about whether she would be an activist justice in the mold of Marshall, for whom she served as a law clerk. Kagan assured the Senate Judiciary Committee “you’ll get Justice Kagan, you won’t get Justice Marshall.”

Marshall noted the “harsh innuendo” about his father’s jurisprudence and wrote, “The Kagan hearing is not the proper forum to rehash my father’s work.” But if there is to be a new round of battles over issues such as voting rights and school desegregation, he thinks the American people would support his father’s efforts. And if there is a battle over his father’s belief in the role of the courts and the 14th Amendment, he thinks Americans would side with his father on those issues as well.

“A debate this week about judicial activism seems to have revealed only one thing,” he writes. “One person’s activism is another’s adherence to constitutional principle.”

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