Thurgood Marshall Jr. Sheds Light On Father Elena Kagan's stated admiration for Thurgood Marshall, the Supreme Court justice she once clerked for, became the focus of much scrutiny during her confirmation hearings. Marshall's son talks about the late justice's true legacy, and his relationship with Kagan.
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Thurgood Marshall Jr. Sheds Light On Father

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Thurgood Marshall Jr. Sheds Light On Father

Thurgood Marshall Jr. Sheds Light On Father

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J: The Rise and Fall of Jack Johnson," about Jack Johnson's historic 1910 bout to defend his heavyweight title. And Ken Burns will tell us why it was so much more than a boxing match.

But, first, we're going to go back to those Supreme Court confirmation hearings. Now, they were supposed to be for the nomination of Elena Kagan, but at times it seemed as though Thurgood Marshall was the nominee, as Kagan's clerkship and admiration for the late Justice Marshall became the subject of pointed questioning in statements like this one from Republican Senator John Cornyn of Texas. Here it is.

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."

MARTIN: Now, those comments did not go unnoticed. The following day, Senator Cornyn asked nominee Kagan if she found his remarks disrespectful. We were actually more interested in the opinion of someone else who was in the room, Thurgood Marshall, Jr. He was in the hearing room. He, of course, is the son of the late justice and an attorney in his own right, a partner in a law firm. And he joins us now by phone from his home in Virginia. Welcome. Thank you for joining us.

THURGOOD MARSHALL: Thank you for having me, Michel.

MARTIN: Were you surprised by this line of questioning?

MARSHALL: I was surprised. The issue came up of Solicitor General Kagan's connection to my father through her clerkship on the morning that the president announced her nomination, but the association seemed to get lost in the more detailed discussions about her work and her experience.

MARTIN: Now, the concept of judicial activism seemed to be at the heart of the criticism. So I'd like to ask your opinion of this. As you are an attorney yourself, do you think that your father was a judicial activist? Do you think that he would recognize himself in that term?

MARSHALL: I'm not sure I ever completely understood what the definition of judicial activism was when the terms first appeared in a big way a couple decades ago. I frankly think that this hearing in particular and the last couple of Supreme Court confirmation hearings have, in my view, exposed the fact that judicial activism is essentially in the eyes of the beholder, that one's judicial activism is another person's principled adherence to constitutional principles.

MARTIN: So, really, this depends on one's point of view and philosophy, you think.

MARSHALL: I believe so. I'm not sure that my father would've characterized his views and his service jurisprudence in any particular way like that, but I do know that he believe that the Constitution fully supported any view that he was expressing both as an attorney and as a judge.

MARTIN: Now, you said in an op-ed in The Washington Post today that, quote, "The Kagan hearing is not the proper forum to rehash my father's work." But I do want to ask what you would like people to think of your father's legacy on the court.

MARSHALL: Well, he certainly fought hard for the issues that he believed in, and he pursued those fights with fervor on the one hand, but with great respect for the rule of law and for the role of the court. So I believe that it's a bit of a misstatement to say that he was results-oriented - which is something that came up this week, as well, in the hearings - but that he believed in the opportunity for others to be heard in our courts, and particularly in the United States Supreme Court, by impartial judges.

MARTIN: I did want to ask if you do think it was a fair line of questioning, since Elena Kagan does refer to her clerkship for your father often and her admiration for him, and presumably future clerks for other justices might have an opportunity to be nominated for the court in some future years. So do you think it was a fair line of questioning?

MARSHALL: I certainly think that once raised, it's a fair issue to consider. I think that to raise it repeatedly the way it was raised is a bit odd in that forum. The issue for the week was Solicitor General Kagan's qualifications, experience and her views. And there got to be an element of almost guilt by association, which was not present when other former law clerks who served in my father's chambers were considered by the Senate Judiciary Committee.

And I suspect that part of the reason that that did not come up in the prior hearings is that those two former Marshall law clerks were nominated by President Reagan.

MARTIN: Professor Sherrilyn Ifill at the University of Maryland Law School wrote a piece in The Root suggesting that this is a way of injecting race into this where it was otherwise not present. Do you think that that's true?

MARSHALL: I'm not going to argue with that. I'm also not going to try to guess motivation, because the degree to which my father's name and record came up in the hearings seemed a bit excessive, given that there were certainly a number of other important issues that warranted consideration.

MARTIN: Well, finally, before we let you go, do you remember your father talking about Elena Kagan? Was she a good clerk?

MARSHALL: Well, my father regarded all of his law clerks like family, and was especially fond of Elena during her clerkship and after her clerkship. I think the best indicator is a level of respect was not only when they earned the moniker knucklehead, but Elena earned her own personal nickname of Shorty from him.


MARTIN: Shorty.


MARTIN: You think if we yelled that at her on the street, she would turn around? Hey, Shorty.


MARTIN: I'm not sure I want to try that.

MARSHALL: I wouldn't recommend it, Michel.

MARTIN: Thurgood Marshall, Jr. is a Washington, D.C. attorney. He's a partner in the international law firm Bingham McCutchen. He has a piece in The Washington Post today. We'll link to it on our Web site.

Mr. Marshall, thank you so much for speaking to us.

MARSHALL: Thank you for having me, Michel.

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