The Republican strategy for attacking Supreme Court nominee Elena Kagan has been revealed. And even by the standards of a party that has drifted far from its moral and ideological moorings, it is remarkable.
The RNC’s complaint: Kagan agrees with former Supreme Court Justice Thurgood Marshall that the sections of the U.S. Constitution that not merely accepted slavery but identified slaves as less than human were “defective.”
The current solicitor general of the United States and former dean of Harvard Law School once clerked for Justice Marshall, the lawyer for the civil rights movement who was the first African-American to serve on the nation’s highest court.
Like many Americans of varying political and ideological backgrounds, Kagan respects both Marshall’s legacy as a lawyer and a jurist who recognized America’s ability to progress in the direction of what the first Republican president of these United States referred to as “a more perfect union.”
In accepting President Obama’s nomination to sit on the bench where Marshall once sat, Kagan referred to her mentor as a justice “who did more to promote justice over the course of his legal career than did any lawyer in his lifetime.”
This was not the first time that Kagan hailed Justice Marshall’s view of the law and the Constitution. In a 1993 Texas Law Review article, the nominee wrote:
During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was "defective"; only over the course of 200 years had the nation "attain[ed] the system of constitutional government, and its respect for... individual freedoms and human rights, we hold as fundamental today."
In a memo attacking Kagan, which the RNC distributed around the same time President Obama nominated her, the committee demanded to know: “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?”
RNC chair Michael Steele, echoed that objection, with a declaration that: “Given Kagan’s opposition to allowing military recruiters access to her law school’s campus, her endorsement of the liberal agenda and her support for statements suggesting that the Constitution 'as originally drafted and conceived' was ‘defective,’ you can expect Senate Republicans to respectfully raise serious and tough questions to ensure the American people can thoroughly and thoughtfully examine Kagan’s qualifications and legal philosophy before she is confirmed to a lifetime appointment.”
No one has ever accused Michael Steele of being an expert of the Constitution, the Supreme Court or American history.
Nor has anyone ever accused the RNC chair of thinking before he attacks.
But even Steele could have figured out the “defect” to which Marshall was referring.
There was nothing obscure in the reference. Nor was it a radical statement.
Marshall’s 1987 speech, delivered as part of a celebration of the Constitution, was grounded in the history of the republic and mainstream thinking with regard to the evolution of the American experiment.
[T]he 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." On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at three-fifths each. Women did not gain the right to vote for over a hundred and thirty years.
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.
Despite this clear understanding of the role slavery would play in the new republic, use of the words "slaves" and "slavery" was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of "free Persons" in each State, plus three-fifths of all "other Persons." Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought: the self-evident truths "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The most significant message that can be taken from Marshall’s speech—and from Kagan’s recognition of it—is to be found in the warmth with which an aging champion of the rule of law—who had in his younger years been forced to battle for equal protection—embraced the Constitution as a great and vital document that was worthy of celebration.
“We will see,” Marshall explained, “that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.”
These are wise words, words based in experience and in love of the law, and the fact that Kagan highlighted them speaks well of her as a legal scholar and as a nominee to join the highest court in the land.
Marshall’s sentiments, and Kagan’s, are those of the abolitionists who gathered at Ripon and the “radicals” who demanded an Emancipation Proclamation and then led the fight to amend the Constitution to say that “neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States,“ of Presidents Abraham Lincoln, Ulysses Grant and Dwight Eisenhower, of former Chief Justice Earl Warren and retiring Justice John Paul Stevens, of Ohio Congressman William McCulloch and New York Senator Jacob Javits—Republicans all, who championed the struggle against slavery, segregation and “Jim Crow.”
That the Republican National Committee of this day would attack Marshall and Kagan for upholding the faith of the founder of the Republican party says two things:
1. It is time for Republicans to renew their own affiliation with the values and ideals that inspired the creation of their once radical party.
2. Whether that happens of not, the strongest case for Elena Kagan’s confirmation to sit on the Supreme Court has been made by the Republican National Committee.