MICHELE NORRIS, Host:
NPR's Ari Shapiro reports on Kagan's mentor, Thurgood Marshall.
ARI SHAPIRO: Thurgood Marshall is having a moment in the spotlight. On Broadway, Laurence Fishburne recently played the civil rights pioneer in a one-man play.
(SOUNDBITE OF PLAY, "THURGOOD")
LAURENCE FISHBURNE: (as Thurgood Marshall) As a boy, I came to understand two things marked my family: distinctive names and extreme stubbornness.
SHAPIRO: Here was Senator John Cornyn of Texas.
JOHN CORNYN: It's clear that he considered himself a judicial activist and was unapologetic about it. He described his judicial philosophy as, quote, "Do what you think is right and let the law catch up."
SHAPIRO: David Bositis of the Joint Center for Political and Economic Studies is an expert on African-American voters and politicians.
DAVID BOSITIS: To many of them, they probably think of Thurgood Marshall as being an even more important figure than the Reverend Martin Luther King Jr.
SHAPIRO: So Bositis has a hard time understanding why Republicans would paint Marshall as the enemy. Even some conservatives share this view.
MICHAEL GREVE: I cannot imagine who mobilized this.
SHAPIRO: Michael Greve is a scholar with the American Enterprise Institute.
GREVE: It makes your jaw drop - at least mine.
SHAPIRO: Robert Alt of the conservative Heritage Foundation agrees.
ROBERT ALT: I don't think it makes sense to attack Thurgood Marshall, but I think that Thurgood Marshall weighs heavily on these hearings.
SHAPIRO: Alt says it's appropriate for senators to ask what Kagan meant when she described Marshall's view of the law as a thing of glory.
ALT: You can laud his accomplishments both personally and professionally but still question whether or not he approached the law in an objective fashion.
SHAPIRO: It may be a risky strategy, and Democrats think Republicans have already crossed a line.
MEL WATT: I think it's going to backfire on them, to be honest with you.
SHAPIRO: Democrat Mel Watt of North Carolina is a member of the Congressional Black Caucus.
WATT: I don't think it does the Republican Party any good to, out of one side of their mouth, say that they're trying to cultivate a more pluralistic party and then go all the way to the other extreme and take just the opposite tack in this confirmation process.
SHAPIRO: But Republicans did not change their strategy from day one to day two. This afternoon, Republican Senator Jon Kyl of Arizona asked Kagan about Marshall again.
JON KYL: Do you believe then that he would have agreed with Justice Roberts that if the big guy has the law on his side, the big guy wins, if the little guy does, then the little guy wins? Or would he have expressed it more along the lines that there's too much agreement with the corporate interests and big business, as one of my colleagues put it?
SHAPIRO: Ari Shapiro, NPR News, Washington.