Steele, Republicans Inject Marshall and Slavery into Kagan Debate

Elena Kagan came in for some provocative criticism from the Republican National Committee and its chairman, Michael Steele, just minutes after her nomination to the Supreme Court was officially announced. They demanded to know if she agreed with her onetime boss, the late Justice Thurgood Marshall, that the Constitution as originally drafted was "defective."

That would be the Constitution that preserved slavery, and that's what Marshall was talking about.

The RNC Research Department set the stage with a memo that asked:

Does Kagan Still View Constitution "As Originally Drafted And Conceived" As "Defective"? "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.' The Constitution today, the Justice continued, contains a great deal to be proud of. '[B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality," and who strived to better them.'" (Elena Kagan, "For Justice Marshall," 71 Texas Law Review 1125, 5/93)

And Does Kagan Still Believe That The Supreme Court's Primary Mission Is To "Show A Special Solicitude For The Despised And Disadvantaged"? "For in Justice Marshall's view, constitutional interpretation demanded, above all else, one thing from the courts: it demanded that the courts show a special solicitude for the despised and disadvantaged. It was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government -- to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission." (Elena Kagan, "For Justice Marshall," 71 Texas Law Review 1125, 5/93)

Steele soon issued a statement saying Kagan should get tough questions about, among other things, her "support for statements suggesting that the Constitution 'as originally drafted and conceived,' was 'defective'."

This brought a rebuke from Abigail Thernstrom, a conservative author who writes on racial issues.

"Mr. Steele (and RNC staff), just as a little experiment, you might try thinking before you speak," she wrote at the National Review's Corner blog. The "defective" question is posed as a litmus test for Kagan, she wrote, and "of course the answer should be, yes. Might the Three-Fifths Clause have been a wee bit of a defect?"

More Elena Kagan Coverage:

- Elena Kagan's Long Journey
- Kagan Another New York Nominee
- Opinion: Victory for Equal Justice
- Anticipating Kagan's Confirmation Hearing
- Elena Kagan and Harvard
- Republicans Inject Slavery into Kagan Debate
- No Protestants: A New Order
- Kagan Well Positioned for Confirmation
- Elena Kagan and John Roberts
- Elena Kagan: Full Coverage

Under the three-fifths clause, delegates to the Constitutional Convention in 1787 decided that three-fifths of a state's slave population would be added to its free population for the purposes of congressional apportionment and assessing federal taxes. The clause became moot after the Civil War when the 13th amendment ended slavery.

The Democratic National Committee had an embarrassment of riches to shower on its mailing list, between the many experts and analysts praising Kagan and at least 11 media outlets criticizing the RNC for putting Marshall -- and slavery -- in play. You can read some of the critiques here, here, here, here and here.

The RNC later tried to refocus attention on the "special solicitude" portion of Marshall's philosophy, a vision of the court's role that Kagan called "a thing of glory." Spokesman Doug Heye said Steele "admires Justice Marshall breaking barriers both as a lawyer and a justice" and helped rename Baltimore-Washington International airport after him." He said the issue is not Steele or slavery or Marshall -- it's Kagan's endorsement of Marshall's "empathy standard."