Steele Attacks Kagan Over Thurgood Marshall Comment
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.
But a prominent Republican blogger, conservative scholar Abigail Thernstrom, is critical, too, advising Steele and the RNC staff to "try thinking before you speak." Steele's words are also provoking private concern from Republican strategists, who question the wisdom of attacking Kagan for words she wrote praising Marshall after his death in 1993.
Steele's statement, issued minutes after Obama announced his intention to nominate Kagan, said that Senate Republicans
need to would raise "serious and tough questions" about her legal philosophy. Included in that, Steele said, is "her support for statements suggesting that the Constitution 'as originally drafted and conceived, was "defective."'"
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, who say that in rendering decisions on the law of the land they consider the Constitution's meaning and language at the time it was written.
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 (a link to his entire remarks can be found on Page 2 of this posting):
"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 takes issue with the headline on this post. He says it's inaccurate to say that Steele was attacking Kagan.
Heye's response is on the next page, below Steele's complete statement, which was included in the original post.
A copy of Marshall's speech can be found here.
Steele's complete statement:
Republican National Committee (RNC) Chairman Michael Steele released the following statement today:
“Over the past year, the American people have been witness to President Obama’s massive expansion of the federal government into our daily lives. To assure the American people, President Obama’s Supreme Court nominee, Elena Kagan, will need to demonstrate that she is committed to upholding the vision of our Founding Fathers, who wrote a Constitution meant to limit the power of government, not expand it. The President has stated repeatedly that he wants a justice who will understand the effects of decisions on the lives of everyday Americans. But what Americans want is a justice who will stay true to the Constitution and defend the rights of all Americans, adhering to the rule of law instead of legislating from the bench. 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.” (Source: Republican National Committee)
Statement by Doug Heye:
"At no point does Steele attack Kagan, as your headline states.
Also, you write "Steele said Republicans need to raise 'serious and tough questions'..." In fact, the statement did not say Republicans need to anything. It said, "you can expect Republicans to raise serious and tough questions."
This isn't a question of something being taken out of context as it is being put in a different, and mistaken, context."
Heye is right that Steele didn't say that Republican senators need to ask tough questions. Steele said that Kagan needs to demonstrate her commitment to upholding the vision of the Founding Fathers, and that Republican senators can be expected to raise serious and tough questions about her judicial philosophy.
As to his larger point, you can decide whether Steele's decision to draw attention to Thurgood Marshall's comment about defects in the original Constitution was an attack on Kagan.