Steele goes after Kagan over Thurgood Marshall comment

First black justice called original Constitution "defective"

May 10, 2010|By Paul West, The Baltimore Sun

Republican National Chairman Michael Steele is calling Supreme Court nominee Elena Kagan to account for her comments in support of Thurgood Marshall, the first black justice on the nation's highest court.

Steele's statement is attracting plenty of attention from liberal bloggers, who never miss a chance to whack the Republican Party's first black chairman. Minutes after Obama announced his nomination, Steele said that Senate Republicans would raise "serious and tough questions" about Kagan's legal philosophy. That includes comments she made in support of Marshall, who described the Constitution as originally drafted and conceived as "defective."

But a prominent Republican blogger, conservative scholar Abigail Thernstrom, was critical of Steele as well, advising the RNC chairman and staff to "try thinking before you speak." Steele's words also provoked private concern from Republican strategists, who questioned the wisdom of attacking Kagan for words she wrote praising Marshall after his death in 1993.

Kagan, a Supreme Court law clerk for Marshall, was extremely familiar with the Baltimore-born jurist's views on the Constitution, which he regarded as a "living document." His liberalism clashed with the ideology of conservative "originalists," such as Justice Antonin Scalia.

Marshall, addressing the issue at length in a 1987 speech commemorating the bicentennial of the Constitution, used the word "defective" to refer to the government devised by America's 18th-century founders. In particular, Marshall discussed the Constitution's deliberate omission of equal rights for women and black slaves. That is the sentiment Steele singled out for criticism in his statement about Kagan.

Here's the portion of what Marshall had to say about defects of the U.S. government at its founding:

"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."

RNC Communications Director Doug Heye took issue with the characterization of Steele's statement as an attack. "At no point does Steele attack Kagan," said Heye.

paul.west@baltsun.com

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