Why Elena Kagan is no Thurgood Marshall
OPINION - Clearly she is no bold visionary. Like the president who nominated her, she's a technocrat who appears to find more pleasure in analysis of process rather than results...
In her office in the Justice Department, Supreme Court nominee Elena Kagan cherishes a portrait of Thurgood Marshall. The photo was taken in 1967 when Lyndon Johnson appointed Marshall to Kagan’s post—Solicitor General of the United States. Kagan shared how the portrait’s tantamount to an icon for her: the contemplative, confident visage and dapper dress of a mentor who happened to be one of the most influential black men in U.S. History.
Nevertheless, in reality the photo’s been doctored. The original image was just a face; DOJ personnel added arms and a torso. If you don’t get the allegory yet, allow to me to continue. Had RNC Chair Michael Steele done the improbable and kept his mouth shut about Kagan’s statement venerating Marshall under whom she clerked, he could have assured at least some dormancy from black folks on the nomination. Until news of Steele’s attack yesterday broke on outlets like theGrio, many black people either shrugged, or, at worst, peered squinted eyes as President Obama attempt to wrap Kagan in Marshall’s colossal, complex robe. Kagan herself, prior to Steele’s ham-fisted attack invoked Marshall and his legacy at other watersheds in her career: becoming dean of Harvard Law School, becoming Solicitor General, and yesterday.
She needs to stop.
Not because she provoked Steele’s remarks. No, Elena Kagan—and the White House stop because despite surface similarities in professional background and the political ruckuses providing context for their respective ascendancies, the two are an utterly different species from one another. Kagan didn’t learn Marshall’s magic eye on the horizon—a laser beam focusing the path on which to march methodically toward the distant paradigm-shifting goal like his NAACP legal masterpiece, Brown v. Board.
Yes, there’s evidence he that after he became a Supreme Court Justice and after many years of battling he may have lost that eye to the blurred cataract of age and bitterness—this by the time Kagan clerked for him. That she learned her craft under him, however, is almost an axiom. But clearly she is no bold visionary. Like the president who nominated her, she’s a technocrat who appears to find more pleasure in analysis of the process rather than the results.
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Marshall may have taught her the science of molding arguments, just as Charles Ogletree taught Barack Obama. But it was perhaps tougher for Marshall or Ogletree to convey the art of looking at the bigger picture beyond policy wonkery. This distinction is something to which African-Americans hadn’t awakened until Michael Steele did his thing. As Grio commentator Michael Ross opined, this wonkery aspect might soldify Kagan’s confirmation chances. Yet I think many black people today would agree that these scary times demand Marshall’s vision. What we get in Kagan is something “photo-shopped” of Marshall’s, and hung on a wall.
When I was a junior at Princeton I took two history classes with Kagan (she was a graduating senior in my department). From contact and observation, I concluded, maybe pigheadedly, four things about her. First, that she was a brilliant student. Second, she was very funny. Third, she seemed more comfortable with the minutia of political and social justice, rather than the broader cultural and power themes. And fourth, she was a walking stereotype of an Upper West Side Manhattan liberal. Here’s the rub: the line between such liberals and “Neo-cons” is razor thin.
Furthermore, Kagan’s legal writings or even stint as Solicitor General fails to demonstrate anything which black folks should cheer about, or about which we should fret. This point brings me to Kagan’s experience at big law firms and tenure as dean of Harvard Law School.
Regarding both instances, there are African-American lawyers, academics and commentators like theGrio’s Earl Ofari Hutchinson who hint that she perpetuated the white boys’ club Marshall labored to pierce and peel. Paul Campos and others have mined the controversy over Kagan’s stewardship at Harvard; there Kagan didn’t seem to be about inclusion, but rather about mechanics of the job, about raising money and maintaining the law school’s preeminence. A technocrat, in other words.
Likewise, during Kagan’s stint at Williams & Connelly, long among Washington D.C.’s august law firms, there were more blacks working in the mail room, or Xeroxing (in the days before digital imaging) or doing janitorial work than black associates. I slaved as an associate at a big D.C. and Baltimore firm around the same time, and experienced this discrepancy first hand.
I also experienced the residue of what Marshall endured and grumbled-over from his appointment as Solicitor General in 1967 till his death in 1993: that one had to be five times better to even be considered half as good. Elena Kagan could claim that she, too, shared Marshall’s travails, but as a female. Or as someone, like Marshall, who was appointed a U.S. Court of Appeals judge only to have the nomination sabotaged by conservatives. In Marshall’s case he managed to at least get on the Second Circuit through one of John F. Kennedy’s recess appointments, over the vitriol of people like Strom Thurmond (R. S.C.); Kagan’s nomination to the D.C. Circuit by Bill Clinton was scuttled by Orrin Hatch—whom she’ll face again.
Nevertheless, no one’s ever challenged Kagan’s intellect, not based on any facts but rather as a racist or political cudgel. As Fox News commentator Juan Williams chronicled in his biography of Marshall, the judge remained bitter about these attacks till his death, despite universal acknowledgment of his stature and contributions to American society and jurisprudence.
Elena Kagan simply studied law. Marshall, from Murray v. Pearson to Brown and other progeny, made law, made history. He tried to fix the “defects” in the Constitution, and America, and this brings us back to the subject of which Michael Steele brayed on Monday. While I still fear that Kagan will be no more than a technocrat on the court, studying the puzzle pieces rather than seeing the whole image with Marshall’s eye, I’ve become her advocate, both ironically and reluctantly. I thank Steele for this, and the ambivalence troubles me, just like it troubled me back at Princeton when I enjoyed Kagan’s insights and intellect, yet squinted at aspects of her personality.
I’m not torn over her supposed mentor, Thurgood Marshall. I’m hoping something he said in those waning days stirs her.
