Going too far in political games

A VERY TALL, very bald man with sunscreen and sand all over his head was shouting at a referee on a recent Saturday at the beach. One of his teammates had taken a hard foul that went uncalled, and the guy wanted to make sure the referee knew it. As he grabbed a water, he was still chewing on the ref's ear, urging him to be more diligent, to protect the players, to ensure the other team doesn't get away with such murderous behavior.

Then he looked to the stands a few feet away. He recognized somebody sitting to my right on the bleachers. Their eyes met. And the big bald guy paused and winked.

The meaning was unmistakable: This, too, the wink said, is part of the game.

Anyone who has ever played or coached sports at a certain level - or watched sand soccer in Virginia Beach - knows what it is to work the refs. You shout, smile, compliment, criticize.

You want the ref to think twice before he makes a call against you. You want him to watch the other team more closely. You want, when the final whistle blows, to know the calls went your way.

The refs know this, of course, and take it into account. It's part of the game. They also know when a coach or player goes too far.

Politics in an election year is all about working the refs. That's us, the voters. It's about shifting the rules so a candidate gets the benefit of our doubts. Sometimes, though, working the refs backfires.

This week, Republican senators on the Judiciary Committee argued that civil rights icon Thurgood Marshall was so radical, so activist and so out of the mainstream, that U.S. Supreme Court nominee Elena Kagan's association with him was disqualifying. Sen. Orrin Hatch went so far as to say that he isn't sure he would've voted to confirm Marshall - the first black man on the Supreme Court.

A bit of history: Marshall was the lead attorney in Brown vs. Board of Education, the historic 1954 case that led directly to the desegregation of American schools. He was chief council for the NAACP, appointed to the federal bench by President John Kennedy, solicitor general for President Lyndon Johnson, and in 1967 was nominated to the high court.

His nomination came in a different time for America, a decade after school integration had begun in earnest but only a scant three years after the Civil Rights Act passed. Even so, Marshall was confirmed by a vote of 69-11, with 20 senators abstaining. Among those who opposed Marshall was West Virginia Sen. Robert Byrd, who died this week, and the Southern segregationists with whom he associated. Byrd, like most of Marshall's opponents, was a Democrat.

And yet Hatch, 43 years later, finds himself unsure that Marshall should have been on the court. Granted, Utah is a planet apart from the South, where segregation's sins still burn. We could, graciously, assume Hatch's position is grounded in a misunderstanding of history. Except he was joined in his contempt for Marshall's legacy by Republican Sens. Jeff Sessions, Jon Kyl and John Cornyn - lawyers all of them - and much of the right-wing chatter box.

They may indeed believe Marshall was too radical. The man responsible for much of the legal underpinnings of civil rights, a man who recognized that the U.S. Constitution was a "defective" document when it came to the fair treatment of black Americans, a man who fought his entire career for those less fortunate. When those senators criticize Marshall as being too activist, that's what they're criticizing. It is instructive that they provided not one example of Marshall going too far as a Supreme Court justice.

Maybe that's because they don't actually believe what they were saying. Maybe it's because they were just working the refs, trying to make their opposition to Kagan seem something other than partisan.

Which leaves the behavior of the senators so puzzling. Kagan - who, like most nominees, has said little of substance in her hearing - will probably survive the Senate. And so her opponents attacked a giant of the civil rights movement? As if realizing how big a mistake they had made, the senators retreated rapidly in the face of withering criticism.

If they were working the refs, they worked the wrong ones.

By the way, the big bald guy's team lost.

Donald Luzzatto is The Virginian-Pilot's editorial page editor. E-mail: donald.luzzatto@pilotonline.com.