At her hearing, Senator Kyl asked Elena Kagan about this passage in a tribute she wrote to Justice Thurgood Marshall:

[I]n Justice Marshall’s view, constitutional interpretation demanded, above all else, that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government—to safeguard the interests of people who had no other champion. The court existed primarily to fulfill this mission.

Kagan wrote that Marshall’s vision of the judicial role was “a thing of glory.”

As Kyl pointed out, Marshall’s vision (as described by Kagan) seemed much more like President Obama’s notorious empathy standard, which Kagan purported to repudiate, than like the model of fair and equal consideration for all parties, big or small, that Kagan had just said she supported. Kagan’s response:

I think what I was saying in that piece is consistent with what I’ve said to you. I think Justice Marshall’s whole life — and this is why I said he revered the Supreme Court. Justice Marshall’s whole life was seeing the courts take seriously claims that were not taken seriously anyplace else. So in his struggle for racial justice, he could go to the State Houses or he could go to Congress or the President and those claims generally were ignored.

Kyl then pressed Kagan on what she had meant by “special solicitude.” Kagan’s response:

I meant special as compared with the other branches of government. In other words, that it was the court’s role to make sure that even when people have no place else to go, that they can come to the courts and the courts will hear their claims fairly, and that was what I was saying was a wonderful thing about courts, a miraculous thing about courts; that you can be ignored in every other part of the government and you can come to a court and a court will say, “It’s our job to treat you with respect, with consideration, with the same kind of attention we give to everybody else.”

Kagan’s explanation is implausible. Kagan closes the paragraph from her written tribute with this sentence: “And however much some recent Justices have sniped at that vision, it remains a thing of glory.” What justices had ever disagreed with, much less “sniped at,” the concept that courts should give fair and evenhanded treatment to all litigants?

For all the criticism that’s been leveled at Republican senators for daring to criticize Thurgood Marshall’s judicial vision (as distinct from his great accomplishments as a civil-rights litigator), it’s striking that Kagan herself was implausibly trying to disassociate herself from that vision in order to advance her own nomination.