RNC uses Thurgood Marshall speech to attack Supreme Court nominee Kagan

The Republican National Committee (RNC) caused a firestorm Monday after questioning Elena Kagan’s support for the judicial philosophy of the nation’s first African-American Supreme Court justice, Thurgood Marshall.

The initial charge from the RNC arrived even before Kagan stepped up to the White House lectern to accept her nomination.

RNC Chairman Michael Steele targeted her praise for the jurisprudence of Marshall, a liberal icon, and a speech in which Marshall called the Constitution “defective.”

By the end of the day, the RNC was defending its statement, responding to criticism from bloggers that Steele had overlooked the stain of slavery on the nation’s history.

The memo the RNC sent to reporters Monday morning stopped short of directly attacking Kagan for her use of Marshall’s words, but it offered a preview of the lines of criticism that may come from Republican senators opposed to her nomination.

However, Senate Republicans did not immediately follow Steele’s lead.

The GOP document also pointed to Kagan’s support for a lawsuit against the government’s efforts to deny federal funding to law schools that banned military recruiters from their campus in protest of the military’s “Don’t ask, don’t tell” policy on gays.

The comments in question came from a 1993 tribute to Marshall that Kagan penned in the Texas Law Review. She quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.”

Marshall cited in particular the definition in the original Constitution to slaves as representing three-fifths of “free Persons” when counting the nation’s population. That reference was rendered moot after the Civil War with the ratification of the 13th and 14th amendments abolishing slavery and granting full citizenship to all people born in the U.S.

Kagan also quoted Marshall as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”

“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,” Steele said in the statement.

The RNC document is likely just the opening salvo from GOP researchers, who have spent months examining the public records of all of Obama’s potential Supreme Court nominees. Yet an effort to associate Kagan negatively with Marshall, who is revered by liberals and African-Americans, could prove explosive.

Kagan, currently the solicitor general, is a former law clerk for Marshall.

Democrats were fighting back Monday, circulating the RNC’s criticism along with posts from Talking Points Memo, the National Review, and others deriding Steele’s statement.

“Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’?” the RNC asked in the research document it sent to reporters.

“While Republicans have shown they will be respectful throughout the nomination process, they will also be forceful in asking Elena Kagan whether she will stand with American people or with Obama Dems’ agenda,” pledged the RNC document, titled “Strong But Respectful.”

Later in the day, RNC communications director Doug Heye wrote a blog post clarifying that Steele did not intend to defend slavery or directly impugn Marshall.

“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),” Heye wrote. “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.”

Yet Republicans made plain their disagreement with the view of judging expressed by Marshall and endorsed by Kagan — that “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.”

“Elena Kagan’s endorsement of this empathy standard,” Heye wrote, “has been rejected by the American people.”

The speech from which Kagan quoted in her law review article was delivered by Marshall in Hawaii as part of a celebration of the 200th anniversary of the adoption of the Constitution. Marshall took issue with the notion that the Constitution was “fixed” from the moment of its founding at the famous convention in Philadelphia in 1787.

“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,” Marshall said. “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.”

Marshall’s speech marked a clear endorsement of the interpretation of the Constitution as a “living” document — an analysis that many conservatives, most notably Justice Antonin Scalia, reject outright.

This story was updated at 8:21 p.m.

---