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A villain emerges in early Kagan hearings: Justice Marshall

Republicans sought to use Supreme Court nominee Elena Kagan’s words against her in their first round of statements in her confirmation hearings, voicing concerns that Kagan would be an activist judge based on her statement that the late Supreme Court Justice Thurgood Marshall – for whom Kagan clerked – was her hero.

That, several GOP Senate Judiciary Committee members said, is cause for alarm.

“It’s clear he considered himself a judicial activist,” said John Cornyn, R-Texas, referring to Marshall’s statement that the best way to judge is to “do what you think is right and let the law catch up.”

While Sen. Jon Kyl, R-Ariz., praised Marshall as a trailblazer in some areas of civil rights law, “Justice Marshall’s judicial philosophy is not, however, hat I would consider to be mainstream,” Kyl said.

Speaking later to MSNBC, Sen. Orrin Hatch echoed the other GOP members’ sentiments.

“There are many other case that he decided where he was deciding on the basis of results instead of the law,” Hatch, R-Utah, said.

Illinois Democrat Sen. Dick Durbin disagreed, telling Kagan that he felt “disappointment in my Republican colleagues warning us that you just might follow in the traditions of Thurgood Marshall.”

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