In an outrageous op-ed in the Boston Globe, Harvard law school dean Martha Minow contends that Senate Republicans tried to “tar” Elena Kagan “by association with [Thurgood Marshall,] the iconic civil rights lawyer who successfully argued Brown v. Board of Education.” According to Minow, “Invoking Justice Marshall now, some want to appeal to and perhaps feed anxieties of some whites about desegregation—and about black men in power.” By “some,” she clearly means to include the Republican senators who dared to ask Kagan questions about Marshall.
What Minow obscures from the reader is that the Republican senators were asking Kagan about her praise for Justice Marshall’s freewheeling vision of the role of the Supreme Court. Their obvious and legitimate purpose, as Senator Kyl put it expressly, was to explore whether Kagan “agree[s] with Justice Marshall’s view of the role of the court in constitutional interpretation.” No Republican senator remotely criticized Brown v. Board of Education or Marshall’s extraordinary career as a litigator. There’s simply no basis for Minow’s vicious insinuation that any senator was trying to “appeal to and perhaps feed anxieties” over race.
As I detail in the link above, Kagan herself tried—implausibly—to disassociate herself from her past praise of Marshall’s vision of the judicial role. So perhaps it’s Kagan whom Minow ought to be chastising. And while she’s at it, Minow can aim her blunderbuss at Marshall’s longtime colleague William Brennan, who (though for different reasons than Senate Republicans) also regarded Marshall’s Supreme Court tenure far less favorably than his career as a litigator.
One of the reasons that Kagan garnered some significant support from conservative academics is that Kagan treated them far more fairly and decently than many in the legal academy do. Unfortunately, as Minow’s op-ed illustrates, the standards of the legal academy are not a sound benchmark for much of anything.