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Kyl: Kagan praised Thurgood Marshall -- and she would help the underdog

There have been two key GOP attack lines on Elena Kagan that have aroused particularly aggressive pushback from Dems: The claim that she will hew to an "empathy" standard, and the criticism of her for saying nice things about the legacy of Thurgood Marshall.

During his opening statement, Senator Jon Kyl reprised both those attacks. But in so doing, he seemed to stray into politically questionable territory, suggesting it's a liability for a justice to believe powerful interests shouldn't be able to drown out the voices of ordinary Americans.

From Kyl's opening statement...

Judge Sotomayor explicitly rejected the "empathy" standard espoused by President Obama -- a standard where "legal process alone" is deemed insufficient to decide the so-called "hard cases"; a standard where the "critical ingredient is supplied by what is in the judge's heart."

Perhaps because his first nominee failed to defend the judicial philosophy that he was promoting, the President has repackaged it. Now, he says that judges should have "a keen understanding of how the law affects the daily lives of the American people ... and know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

And a bit later...

Kagan wrote a tribute to Justice Marshall in which she said in his view it was the role of the courts and interpreting the Constitution to protect the people who went unprotected by every other organ of government. The court existed primarily to fulfill this mission. And later, when she was working in the Clinton administration, she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog.

I get that this is all about riling up the GOP base with "judicial activist" talk. But the GOP is under assault for being regional, intolerant and too solicitious of special interests.

In this context, it's hard to see how it's good long-term politics to attack Kagan explicitly because she might seek to defend ordinary Americans, or the "underdog," against powerful interests -- while simultaneously faulting her for praising the legacy of the first African American to sit on the court. It doesn't add up to a pretty picture.

By Greg Sargent  |  June 28, 2010; 2:43 PM ET
Categories:  Senate Republicans , Supreme Court  
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Next: White House talking points cast Kagan as judicial wallflower

Comments

Unbelievable. Literally unbelievable.

Posted by: Ethan2010 | June 28, 2010 3:22 PM | Report abuse

The GOP needs some new propaganda.

On the day that the Conservative activist Supreme Court strikes down a local ordinance controlling handguns in a major U.S. city, on the basis of a personal Constitutional right to keep deadly weapons, a "right" never before fixed in our 225 years as a nation, in the same year that the same Conservative activist Supreme Court decided that corporations are people and money is speech and, therefore, corporations are free to spend unlimited money to influence U.S. elections, Sen. Kyl -- just days off flat-out lying about a private conversation with the President -- whines about a long-gone Liberal activist Supreme Court.

I'd ask the question: Has the GOP no shame at last?

But that would be rhetorical.

Posted by: wbgonne | June 28, 2010 3:25 PM | Report abuse

Well, if she believes that we need protection from the vested and powerful interests ... sit her tomorrow! What's the hold up.

Also, wherever Kyl is from, get him the heck out of there and put someone in who has some consideration for PEOPLE. Please!!!

Posted by: AMviennaVA | June 28, 2010 3:44 PM | Report abuse

Here is the simple Republican case against Elena Kagan:

1) Anyone who does not agree with GOP on EVERYTHING is an ACTIVIST judge.
2) We cannot allow Activist judge on the supreme court (see activist definition above)
3) Therefore, Elegan Kagan is not fit to serve on Supreme Court.

GOP senators at the hearing today = Human Vuvuzelas. Same monotone, unpleasant sound!

Posted by: TS11 | June 28, 2010 3:45 PM | Report abuse

"she encouraged a colleague working on a speech about Justice Marshall to emphasize his unshakable determination to protect the underdog"

Jesus. The horror of it all.

I think this must be a set-up for future arguments. They can't be so tone-deaf that they're going to argue against Thurgood Marshall and underdogs, so I'm guessing "underdogs" is some dog whistle for minorities/women/anyone who isn't Republican.

Posted by: CTVoter | June 28, 2010 3:58 PM | Report abuse

"It doesn't add up to a pretty picture."

Nothing I have seen in the last two years from any Republican has added up to a pretty picture or even the semblance of just an average picture. When John McCain can unequivocally state on a prime time Sunday news show that Arizona has the second highest kidnapping rate of anywhere in the world with no push back or even a blink of the eye from David Gregory, it's gotten pretty ugly.

When Sarah Palin, Glenn Beck, Limbaugh, Bachmann, Angle, Rand Paul, et al say any damn thing they want and then refuse to answer questions on those statements we've gone quite a distance down the rabbit hole.

And when it's clear that Republicans deride anyone protecting the rights and interests of ordinary Americans I'm hoping us "little people" of all political persuasions can take the hint. We don't matter to them.

Posted by: lmsinca | June 28, 2010 4:02 PM | Report abuse

The present makeup of the SC is a consequence of a dedicated effort via the Federalist Society and its originators/funders to sway American jurisprudence to the right. That's not a debatable point - it's explicit in their literature.

In other words, politicizing the court is now the game being played.

In today's ruling on Christian Legal Society v. Martinez the dissenters (you know who) wrote that freedom of expression was being overridden by "prevailing standards of political correctness in our country's institutions of higher learning."

That's not even close to being an objective or judicial comment/viewpoint - it is a repetition of a modern rightwing conception and talking point.

"Political correctness" is a fundamentally meaningless term other than in its emotional resonance for the right. If it can be said to have meaning, it would point to the dangers of unreflective consensus. But in using it as they have here, they do the exact crime themselves. We expect there is probably no instance where Roberts et al would imagine "originalism" or presumptions of "liberal academic bias" to be a form of political correctness even though they are precisely that as well for these people.

Posted by: bernielatham | June 28, 2010 4:02 PM | Report abuse

Hope she's another Sotomayor, who is seriously impressive. And what's with Con bloggers basically saying "where the white dudes at" about Obama's picks? If they really believe in meritocracy, then they're going to have to get used to the fact that at least 4 women should be on the court, likely more.

"Who needs womanly folk, and Mexins, black onez, youngins, gheys, Joos,Ayshuns, Moozlems, and yoonyun workers (stop them, before they organize again!)? We haz Four Fathers fetish and neat outfits!"

Thanks for helping to strengthen the progressive coalition by showing just how regressive you really are, conservatives.

Sincerely,
A White Dude

P.S. You know who would be great on a national ticket someday? Labor Secretary Hilda Solis. (Right - wing heads explode)

Posted by: michael_conrad | June 28, 2010 4:04 PM | Report abuse

But we'll have one heck of a spiffy SC once this future unfolds:

“Who would you like to see nominated to the Supreme Court – Elena Kagan or Brenna Findley?” Bachmann said, prompting applause. “I knew you were smart. And when Steve King is president, he can appoint her.”
http://thinkprogress.org/2010/06/28/bachmann-king-findley/

Clearly, a crack has opened in the woof and warp of things and creatures from some terribly odd parallel universe have oozed through.

Posted by: bernielatham | June 28, 2010 4:12 PM | Report abuse

maybe she should have begun her statement by apologizing to bp...

Posted by: blahgblogwordpresscom | June 28, 2010 4:13 PM | Report abuse

That Kyl statement is like Jeremy Giambi running down Jackie Robinson: "what did that guy ever do? He was a lousy player. I don't see why anyone would elect him to the Hall of Fame."

It's a disgusting, context-free kind of thinking. No sense of history.

Jon Kyl: the definition of what keeps this country from being its best self.

Posted by: BGinCHI | June 28, 2010 4:20 PM | Report abuse

"And when Steve King is president, he can appoint her."

Look no further for proof of Bachmann Insanity.

And is she really that ignorant about how the system works wrt nominations, or is she unintentionally letting slip the wish for the president to be a king?

Posted by: CTVoter | June 28, 2010 4:23 PM | Report abuse

Anyone link to this already?

Amazing chart on deficits and why we are in the mess we're in.

http://tpmlivewire.talkingpointsmemo.com/2010/06/chart-of-the-day-reminder-the-deficit-youre-freaking-out-about-is-bushs-fault.php?ref=fpblg

Dear Right Wing Pols: Shut up and let the grown-ups sort this out for 10 or 20 years.

Dear Really Rich People: I hope the extra money was worth it to you, because people are suffering and your karma is wasted.

Posted by: BGinCHI | June 28, 2010 4:24 PM | Report abuse

"Clearly, a crack has opened in the woof and warp of things and creatures from some terribly odd parallel universe have oozed through."

I sure hope they keep going. Let's not make it hospitable.

Posted by: wbgonne | June 28, 2010 4:24 PM | Report abuse

"maybe she should have begun her statement by apologizing to bp..."

Good one!

Posted by: wbgonne | June 28, 2010 4:26 PM | Report abuse

So this is as opposed to justices who decide corporations are people so deserve the same first amendment rights as citizens. How can you get any worse than that bunch or are they looking for someone who would agree with that decision?

Posted by: soapm | June 28, 2010 4:35 PM | Report abuse

BG, I'm a big believer in karma, unfortunately it can be quite a wait, and an awful lot of people are running out of time.

Posted by: lmsinca | June 28, 2010 4:35 PM | Report abuse

wb said: "I sure hope they keep going".

It's why I'm a proponent of the liberal use of baby oil.

Posted by: bernielatham | June 28, 2010 4:38 PM | Report abuse

Rand Paul slips further into the moronic inferno...

"At any rate, Rand Paul, fresh from the Kinsley gaffe in which he admitted that his crackpot ideology would have caused him to vote against the Civil Rights Act, attended the CHEK conference recently and refused to say how old he thinks the planet it."
http://yglesias.thinkprogress.org/2010/06/rand-paul-panders-to-young-earth-creationists/

Posted by: bernielatham | June 28, 2010 4:41 PM | Report abuse

Rand Paul slips further into the moronic inferno...

"At any rate, Rand Paul, fresh from the Kinsley gaffe in which he admitted that his crackpot ideology would have caused him to vote against the Civil Rights Act, attended the CHEK conference recently and refused to say how old he thinks the planet it."
http://yglesias.thinkprogress.org/2010/06/rand-paul-panders-to-young-earth-creationists/

Posted by: bernielatham | June 28, 2010 4:41 PM | Report abuse

oops

Posted by: bernielatham | June 28, 2010 4:42 PM | Report abuse

Might be nothing but... http://rawstory.com/rs/2010/0627/report-warships-stationed-iranian-coast/

Posted by: bernielatham | June 28, 2010 4:48 PM | Report abuse

All, check out the White House talking points on Kagan:

http://voices.washingtonpost.com/plum-line/2010/06/white_house_talking_points_cas.html

Posted by: Greg Sargent | June 28, 2010 4:57 PM | Report abuse

So it sounds like the GOP message, from the Senate Committee to the Court itself, is that if underdogs want to protect themselves against powerful interests, they should get a gun and learn how to use it. Forget elections and the courts.

Do these people even have the ability to listen to their own words, let alone the ability to reflect on them?

Posted by: Mimikatz | June 28, 2010 5:00 PM | Report abuse

Sweet, sweet Jeebus...

With all the venting and ranting around here you'd think the Kagan confirmation were in jeapordy. In all seriousness, does anybody here think she will not be confirmed? Really?

I get that Republicans are all bad actors and all of them "know" what should happen and merely pander to (there's that to/too again dang it) us mouthbreathing, knuckle-dragging, swastika tattoo wearing, homophobic, "Chrisitian" bigots, but come on.

Kyl's supposed to rouse the base (while knowing he's a liberal at heart merely pandering to us ignant d*****bag for the power and glory of it all)you're getting more riled up than I am.

Posted by: TrollMcWingnut | June 28, 2010 5:03 PM | Report abuse

McWing, personally I'm fairly certain she will be confirmed, but the battle lines are being drawn and now we get to listen to it for the next couple of weeks. Agitating the base is getting pretty old and it seems we have larger issues, especially if they're just going to confirm her anyway.

Posted by: lmsinca | June 28, 2010 5:07 PM | Report abuse

Just to be a complete cynic but do you doubt that the battle lines are already formed? and couldn't this be just a big dance to agitate all party's bases?

Republicans stoke their racist pig base like me while Leahy stokes his glorious soldiers of rightousness. I mean, each camp is sending out fundraisers as we speak highlighting the other parties outrageous behavior. Kyl, in your view, may be a lying racist ahole, but he's my lying racist ahole.

Posted by: TrollMcWingnut | June 28, 2010 5:17 PM | Report abuse

These people like Kyl pretend to be bible based christians, (I can't bring myself to capitalize there), might at least open their Bibles to either the Old OR New Testaments and discover that it EXACTLY the function of Judges to defend the least against the depredations of the Greats.

Every word Kyl is reported as saying is particularly good testimony as to Kagan's fitness for the position. That Kyl thinks it is to her detriment is all the more reason to doubt his claim to being either a Christian or a Conservative.

Posted by: ceflynline | June 28, 2010 5:20 PM | Report abuse

"and couldn't this be just a big dance to agitate all party's bases?"

Maybe, I'm just not feeling all that agitated especially since Kagan is not exactly a bastion of progressivism, or maybe she's just boring to me. And I've never called anyone here or in politics a "lying racist ahole". I did have an argument last year regarding Rush being a racist, but otherwise I try not to put those kinds of labels on people, at least not in public.

Posted by: lmsinca | June 28, 2010 5:56 PM | Report abuse

All, Happy Hour Roundup posted:

http://voices.washingtonpost.com/plum-line/2010/06/happy_hour_roundup_38.html

Posted by: Greg Sargent | June 28, 2010 6:14 PM | Report abuse

I am constantly amazed that working and middle class Republicans would vote for someone like Kyl who could say that it was a bad thing to have an "unshakable determination to protect the underdog" seeing as they themselves are ordinary Americans.

It once again brings to mind the question "why do Republicans hate ordinary Americans?".

Posted by: vintagejulie | June 28, 2010 6:16 PM | Report abuse

Not surprising that Kyl hails from Arizona, where the state motto is:

"If you're white, you're all right. If you're brown, stick around (but only to mow the lawn). If you're black, get back (unless you play for the Cardinals, D-Backs, or Suns)."

Posted by: koolkat_1960 | June 29, 2010 9:38 AM | Report abuse

I hope my fellow Arizonan's take note of Jon Kyl's attempt to smear Thurgood Marshall for being a judicial activist. It's just one more hideous embarrassment by The Greater Omentum. He's just a carpetbagger from Iowa who caters to his own, and in no way articulates the traditional wisdom of Arizona -- just that of those who have relocated here and don't want to pay taxes (our tax rate is among the very lowest, and irresponsibly so) but do want to impose rules and laws which they think would have improved their lives in their various states of origin. Prior residents paid for the infrastructure which attracted them here, but now they oppose repaying their fair share. Just take a good look at this pompous nay brayer.


Posted by: buenperico | July 2, 2010 12:33 PM | Report abuse

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