Supreme Court Justice Thurgood Marshall, left, and Supreme Court nominee Elena Kagan who served as his clerk.

WASHINGTON ( – Barring an unexpected development, Solicitor General Elena Kagan appears on her way to becoming the 111th Justice–and only the fourth woman–to sit on the U.S. Supreme Court.

Ms. Kagan’s confirmation hearings before the Senate Judiciary Committee concluded July 1 after 17 hours of questions and testimony–testimony which produced no surprises about the nominee herself.

There was one sore point. That was an attack on Justice Thurgood Marshall–the first Black member of the court–accusing Justice Marshall of being an “activist” judge, who was more interested in bringing about social changes than he was in simply impartially applying the law and the Constitution to the cases before him.


On several occasions during her testimony, Republican senators questioned Ms. Kagan about her service as a clerk for Justice Marshall in the 1980s and her stated admiration for her mentor.

Republican Sen. John Cornyn of Texas at one point said, “It’s clear that (Mr. Marshall) considered himself a judicial activist and was unapologetic about it. He described his judicial philosophy as ‘do what you think is right, and let the law catch up.’ ” Sen. Cornyn even went on to ask Ms. Kagan if she thought Justice Marshall’s statements were “disrespectful.”

Alabama Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee also attacked Ms. Kagan, not for her record, but for other judges she admires.

“Importantly, throughout her career, Ms. Kagan has associated herself with well-known activist judges, who have used their power to redefine the meaning of words of our Constitution and laws in ways that not surprisingly have the result of the dancing that judges prefer social policy and agendas,” Sen. Sessions said June 29.

“She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak–who has been described as the most activist judge in the world–as her hero,” Sen. Sessions continued.

Professor Charles Ogletree, who taught Ms. Kagan when she was a student at Harvard Law School, and who served on the faculty there with her when she was dean of the law school, and who is the founder and executive director of the Charles Hamilton Houston Institute for Race and Justice at Harvard, condemned the attacks. “The comments by Senator Sessions and others, with all due respect, are really despicable,” Prof. Ogletree told Pacifica Radio‘s “Democracy Now!”

“Because he is right, Thurgood Marshall was an activist. He was an activist who said we can’t have a society that separates people on the basis of race. He is going to fight against segregation policy and he won in Brown vs. Board of Education 1954 led by his mentor, Charles Hamilton Houston, who helped train him.

“He won 29 out of 32 cases before an all White, all male, very cautious Supreme Court, to level the playing field, that’s an activist. And as a Justice, he did not write opinions by himself. He had to get the agreement of eight other people to be in a majority. So it wasn’t as if Marshall was out there alone. He was an extraordinary lawyer who grew up in Baltimore in segregation. He went to a Black college, Lincoln University in Pennsylvania, who wanted to go to the University of Maryland Law School, he could not. Not because he was not qualified, but because he was Black,” Prof. Ogletree continued.

“I think he has seen character assassination the past few days and it upsets me and any fair thinking American about how they’ve treated, a great American hero. Justice Marshall believed in the law and the fact that it was a ‘liberal Justice’ is no way to disparage him because he helped change America’s laws that helped people like me to go to places like Stanford’ to go to places like Harvard, to be on the faculty. He could not do it, but opened up the doors for others so I celebrate his life, I do not condemn it,” he said.

But despite her progressive legal “pedigree,” Ms. Kagan did not receive high marks from Black lawyers.

“We are still looking at her and trying to ascertain her views,” Barbara Arnwine, executive director of the Lawyers Committee for Civil Rights Under Law told The Final Call on the opening day of the hearings. “Her record is thin and it is mixed. It’s not where we can look at her and say, ‘Wow. She’s been on the right side of these issues consistently,’ or she’s been horrible on these issues.”

Other groups agreed. The National Bar Association–the largest group of Black lawyers in the country–deemed Ms. Kagan “qualified” to serve as a Supreme Court justice but withheld an endorsement “due to the insufficient information to ensure that Ms. Kagan’s views are consistent with the core mission of the organization.”

“Solicitor General Kagan has not yet established a demonstrated track record of vigorously applying the law to uphold civil rights and personal freedoms,” National Bar Association President Mavis Thompson said in a statement.

The NAACP and the NAACP Legal Defense Fund and Eduction Fund expressed their support for the Kagan nomination, citing her “professional credentials” and “independence of mind.” But they also expressed their own “concerns” for the nominee.

Even Blacks who are staunch supporters of President Barack Obama–who made Ms. Kagan his second nominee for a court seat–expressed reservations about this nominee. “As a Black person, I’m obviously disappointed that we still don’t have a Black person on the Supreme Court to whom I can relate,” E. Faye Williams, president of the National Black Women’s Political Congress told The Final Call.

“General Kagan has a shortage of a civil rights record, so we can’t judge it. It’s difficult for us to judge how she’s going to vote on vital issues of civil rights, and of course that concerns me.”

Blacks and other non-White lawyers are “concerned about Gen. Kagan’s inadequate emphasis on diversifying the school at Harvard when she was dean there. Did she have opportunities? Yes. I’m told there were some 30 positions that opened up in tenure, and it is very, very scarce in terms of who was selected for those. We don’t know what she would do when she has the opportunity to rule on questions of civil rights and affirmative action and other things.”

And “of course,” Ms. Williams said–as did other groups of Black women–she is disappointed that this nominee to the Supreme Court was not a Black woman. “Some of us thought that our time had come.”

The “best case scenario,” coming out of the nomination and likely confirmation of Ms. Kagan, is that “she joins the court and becomes a reliable vote along the lines of (Justice Sonia) Sotomayor (President Obama’s first Supreme Court appointment), perhaps, and Ruth Bader Ginsburg, and probably more likely as I’ve said Anthony Kennedy, or even Steven Breyer. That’s our best scenario,” Dr. Greg Carr, chair of the Department of African American Studies at Howard University told The Final Call.

“Unfortunately, one of the few things the president has complete control over, is the selection of a Supreme Court justice. (President) Obama has failed twice.”