So, did everyone think that the Elena Kagan nomination was going to be easy? Ha, no.
Right out of the gate, the Republican National Committee -- you know, that organization headed by Michael Steele, who recently opined that the GOP had not "done a very good job" giving African-Americans a reason to vote Republican -- has released a statement slagging Kagan for her tribute to... uhm -- Thurgood Marshall, the first African-American to serve on the Supreme Court. Smooth move!
In its first memo to reporters since Kagan's nomination to the high court became public, the Republican National Committee highlighted Kagan's tribute to Marshall in a 1993 law review article published shortly after his death.
Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was "defective." She quoted him as saying the Supreme Court's mission was to "show a special solicitude for the despised and the disadvantaged."
The Sotomayor confirmation process, I think, firmly established how various factions feel about empathizing with the "despised and disadvantaged." Now, the RNC wants to know, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?" Well, let's take a look at the Marshall statement in question!
In 1987, Marshall delivered remarks at the annual seminar of the San Francisco Patent and Trademark Law Association. At the time, the Constitutional Bicentennial Celebration was underway, and, as Marshall noted in his speech, the year 1987 was "dedicated to the memory of the Founders and the document they drafted in Philadelphia," and Americans were invited to "recall the achievements of our Founders and the knowledge and experience that inspired them, the nature of the government they established, its origins, its character, and its ends, and the rights and privileges of citizenship, as well as its attendant responsibilities."
Said Marshall:
I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.
For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. "We the People" included, in the words of the Framers, "the whole Number of free Persons." United States Constitution, Art. 1, 52 (Sept. 17, 1787). On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at threefifths each. Women did not gain the right to vote for over a hundred and thirty years. The 19th Amendment (ratified in 1920).
These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.
So, what do you imagine Kagan's answer to the question, "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?" It surely won't be, "No, you're right. The framers got it absolutely right, excluding women and blacks from the rights of citizenship."
Structurally speaking, the RNC really has to get to a place where it takes longer than thirty seconds on the Internet to make them look like asses.
UPDATE: RNC spokesman Doug Heye attempts to put lipstick on his organization's pig (sort of his full-time gig these days):
[W]hile Marshall pointed to constitutional amendments as redressing the wrongs of slavery, Kagan moves beyond that, contending that, "The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modern Constitution is his."
As much as Liberals want to make the concern Chairman Steele raised about Marshall and slavery, it isn't (and if it was, I'd note the Chairman admires Justice Marshall breaking barriers both as a lawyer and a justice, and helped rename BWI airport after him). It's about how Elena Kagan, who is being nominated for a lifetime appointment to the highest court in the land, views the role of the courts in our society. In the same law review article, Kagan endorses the view that the Court's primary role is to "show special solicitude" for people a judge has empathy for. Liberals would much rather talk about whose view she is endorsing rather than the substance of that view. That they would prefer to do so is unsurprising, because her view of the Court's primary mission is at odds with the majority of Americans.
Ben Smith quips, "It's a valiant effort." Meanwhile, Abigail Thernstrom of the National Review suggests that the RNC and Steele need to "try thinking before you speak."
"Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?" the RNC now asks. A litmus test for Kagan, it implies.
But of course the answer should be, yes. Might the Three-Fifths Clause have been a wee bit of a defect?
Precisely right!
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