It's not even coded bigotry anymore

The GOP hits Elena Kagan for admiring Thurgood Marshall and hailing from "Manhattan's Upper West Side"

Published June 29, 2010 2:29AM (EDT)

I'm not entirely sold on Solicitor General Elena Kagan as our newest Supreme Court Justice. Ironically, one of my reservations has to do with her approach to leveling racial discrimination – specifically her reported role in scuttling a Clinton administration plan to do away with sentencing disparities between crack and powder cocaine (which has meant heavier punishment for African Americans than whites for dealing or using the same drug.)

That said, Republicans on the Senate Judicial Committee are trying to make the case she's outside the mainstream of American jurisprudence, by attacking her clerking for (and admiring) legal giant Thurgood Marshall, the first African American Supreme Court justice, while singling her out as a denizen of "Manhattan's Upper West Side" – you know, the neighborhood known for Zabar's and bagels and, well, Jews.

Sen. Jefferson Beauregard Sessions of Alabama, who wasn't crazy about Sonia Sotomayor, you'll recall, denounced Kagan having "associated herself with well-known activist judges who have used their power to redefine the meaning of our constitution and have the result of advancing that judge's preferred social policies," and he cited Marshall, the NAACP Legal Defense Fund leader who argued Brown vs. Board of Education. According to Talking Points Memo, Republicans mentioned Marshall an astonishing 35 times in the hearing (compared with 14 mentions of President Obama) with his son, Thurgood Marshall Jr., sitting in the audience.

Sen. Jon Kyl played the culture war card:

“Not only is Ms. Kagan’s background unusual for a Supreme Court nominee, it is not clear how it demonstrates that she has, in the President’s words, ‘a keen understanding of how the law affects the daily lives of the American people.’ One recent article noted that ‘[Ms.] Kagan’s experience draws from a world whose signposts are distant from most Americans: Manhattan’s upper West side, Princeton University, Harvard Law School and the upper reaches of the Democratic legal establishment.’"

Unfortunately, it was Politico's otherwise smart New Yorker Ben Smith who supplied Kyl with that silly soundbite. But Fox News's awesome duo of Megyn Kelly and Bret Baier foreshadowed the GOP's strategy early Monday morning. Here's how Kelly said she knew Kagan was a liberal:

"Living in New York City, I can speak to this. She grew up on the upper west side of Manhattan. We walked around the upper west side of Manhattan not too long ago. And I asked my husband aloud, ‘Do you think it’s true what they say, that this is… the liberal center of New York City, of one of the most liberal cities, this is the center of it. And at that moment… a woman walked by us with a tee shirt that read, ‘Kill Cheney First.’ So, yes. So I’m gonna say, ‘Yes.’ It is a liberal area and it is the area from which Elena Kagan hails.”

Baier concurred: “So there you have it.”

So there you have it. Unable to find any personal statements by Kagan they can use to prove she's beyond the pale, so to speak – no "wise Latina" moments on her transcripts – they deride her for coming from the Upper West Side, and admiring one of the heroes of American justice, who happens to be black.

Stay tuned for more not-so-coded bigotry from the GOP.


By Joan Walsh

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Elena Kagan