Howard Fineman: Roberts vs. Marshall at the Kagan Hearings





[Howard Fineman is Newsweek's Senior Washington Correspondent and Columnist, senior editor and deputy Washington bureau chief.]

When she finally got to speak on Monday, Supreme Court nominee Elena Kagan, in grave tones, promised to be a “modest,” “restrained,” “even-handed,” “impartial” custodian of the Constitution.

But in an odd way, Kagan's so-far-uneventful hearings aren’t just about her. They’re shaping up as a trial in absentia of two powerful justices; one current and one past: Chief Justice John G. Roberts Jr., and the late Associate Justice Thurgood Marshall. So far, Marshall is winning....

Kagan herself drove a truck right over the GOP on the issue. “My first real exposure to the Court came almost a quarter century ago,” she said in her opening statement, “when I began my clerkship” with Marshall. “Justice Marshall revered the court—and for a simple reason. In his life, in his great struggle for racial justice, the Supreme Court stood as the part of government that was most open to every American—and that most often fulfilled our Constitution’s promise of treating all people with equal respect, equal care, and equal attention.”

So much for attacking Kagan via Marshall....



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