Republican National Committee chairman Michael Steele thinks he’s found a zinger to use against President Obama’s just-announced Supreme Court nominee, Elena Kagan. But zingers have a nasty habit of boomeranging. Here’s Steele (emphasis mine):
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.
She thinks the Constitution is “defective”? Good Lord! She must be some kind of wild-eyed judicial activist!
Oh wait …
Kagan quoted from a speech [Justice Thurgood] 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….
“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.”
You know what? I’m guessing that most Americans think that the whole 3/5 of a person thing, along with the fugitive slave clause, were really terrible ideas that never should have been enshrined in the Constitution in the first place. They were, indeed, “defects” in the original document that have since been corrected.
So, Chairman Steele, if you want to try to make your case that Kagan is some kind of hippie because she thinks that the endorsement of slavery represented a “defect” in the 1789 version of the Constitution, knock yourself out. You will fail. Just as pretty much everything else you’ve tried has failed.
Given that Kagan was the front-runner all along (and one of the front-runners to replace Justice Souter), you’d think the Republicans could come up with something better than this.
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p>It’s also pretty embarrassing to Steele, who proves yet again that he, and whoever writes his material, have no idea what they’re talking about. Even without getting into the slavery compromises, clearly the largest defect of the Constitution, it’s pretty clear that the document had many other flaws as well. How about not taking into account political parties? The original functioning of the Electoral College was clearly a flaw, as many Framers themselves realized prior to the passage of the Twelfth Amendment.
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p>By the way, Thurgood Marshall’s Bicentennial Speech in 1987, from which Kagan quoted, remains one of my favorite speeches of the 20th century. It concisely argues why the Constitution is indeed a living document shaped by many years of struggle — and how we’re better off as a nation because of that fact.
Kagan was a law clerk for late Justice Marshall during the period of the quoted speech. She may not have been a jurist, but had clerking experience in the Supreme Court, and the US Court of Appeals, DC Circuit. Not too shabby.
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p>http://www.boston.com/news/nat…
…that she is Solicitor General, whose job description is basically to be Uncle Sam’s advocate before the Supreme Court.
check out Glenn Greenwald’s nearly apoplectic, repeated attacks on Kagan over the last several weeks. Which obviously have accomplished exactly nothing.
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p>And then we have today’s latest, which I find hilarious.
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p>Followed later in the same post by:
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p>HA!! Forgive me, Glenn, if I find that a tad hard to believe.
I am not surprised that Michael Steele who said nothing about GOP wonder boy Bob McDonnell’s white-washing of the Confederacy, might find the ‘activist’ opinions of Kagan and Marshall regarding the Constitution that as originally constructed allowed for slavery (not to mention no voting rights for women or white men who did not own property) troubling. I usually dislike the notion that black conservatives are selling out their race, and have defended many of them on that point. But President Obama was right to mock Steele’s cheap jive talking stunts at the correspondents dinner, he just seems like a relic from another era.
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p>As for Greenwald he must really have something against Kagan since he has found nothing to justify his ad hominem attacks.
As I said previously, Kagan has solid progressive credentials on nearly all issues. She favors expanding executive power in areas were it is not only appropriate but appallingly necessary for progressive purposes-especially financial regulation. And for conservatives to go after that kind of executive power is laughable considering how many powers the conservative SCOTUS jurists gave to the last president. They just seem incredibly sad that a liberal will now use those powers.
It’s possible that her judicial philosophy and core beliefs will emerge during the hearings, which is why he’s willing to keep an open mind, but for now, there are too many unknowns. Known unknowns do indeed justify withholding support. Where are all of her supporters getting their information about her that gives them confidence she’s going to be a good pick? It raises a big red flag.
Rather than simply focusing on what she has said/written, how’s about we instead look at what she’s done, and who she’s done it with…
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p>When given the choice, she’s moved left. When not given the choice, she’s been an effective advocate for policies other people have directed her to advocate. Of course, since we’re all about being hysterical here, any ‘blank slate’ tendencies are certain to break against us… which must mean she’s the second coming of the son of the revenge of the re-incarnation of Lee Atwater…
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If I remember correctly, the core of your reasoning for dismissing Greenwald’s attacks on Kagan’s view on executive power was:
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p>Yes, I would and I would expect a liberal democrat to do the same. I get that Obama isn’t a liberal democrat and that he believes he has the right to, as Bob put it better than I could,
But that doesn’t make Greenwald’s arguement irrelevant, in fact, given that Obama’s position on executive power is wrong and dangerous, it makes his argument even more important. If Kagan does believe this, if she does support unlimited executive power, than she’s very dangerous and I will (unsuccessfully) urge my Democratic senator to vote against her nomination.
…constitutes acknowledgement by the Framers that the Constitution might need tweaking from time to time, which they did almost right away with the Bill of Rights. I seem to recall not that long ago it was the right that wanted to amend the Constitution to death: term limits, balanced budget requirement, allowing school prayer, banning flag burning, requiring a 2/3 vote to raise taxes, banning abortions, instituting a line item veto (In fairness I agree with the last one.), etc.
is between amending the Constitution according to the Constitution, as was the case with all of the hilarious examples cited by David, and just interpreting it in a “living” fashion, as though the same old words have grown up and now mean something new that was never intended. I think that’s what people mean by a “living constitution”, right? They aren’t talking about the ability to amend it.
The living constitution is defined as reading the amendments and interpreting them for our time, conversely originalism means going back and trying to ascertain what the founders wanted and ruling on that basis. I think both philosophies, in many respects, can undermine the actual Constitution extensively and place too much power in the hands of the court. On the one hand forcing the court to adapt the Constitutions somewhat more archaic and obscure portions means finding ‘implied’ rights that are not there or relying on aspects outside of the Constitution to inform cases including social and scientific research. On the other hand originalism to me is untrue to the core message of the founders which was in designing a constitution that could be adaptable to changing times, Madison certainly did not want a rigid unchanging documents. It is also a fallacy to argue that our culture is somehow static and must adhere to norms that were common two centuries ago. I would say a true textualism is closer to the jurisprudence of Hugo Black or Byron White, both progressives but both progressives that did not belief in inventing new languages and standards that were not inherent in the Constitution. Cass Suntein comes closest to that view today with judicial minimalism.
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p>Black believed
He was reasonably sensible on some issues (especially voting rights), quite awful on others. His opinion in Bowers is one of the worst published by the Court in decades.
White drifted to the right of the court as he got older, bucking the usual move most justices make.
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p>Black was still a solid progressive AND an advocate of judicial restraint and textualism. He believed that the people through their representatives should make the laws not the bench, except when their laws violate the rights of individuals. He was a Bill of Rights and 14th amendment supremacist too.
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p>Oh absolutely – a true progressive, he. So for instance, if the government were to lock people up based solely on their race, he’d totally be against that.
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p>Oh wait…
The “right” (i’m not sure the term “conservative” is a meaningful description of any political force presently active in American politics) fetishizes the document and the Founders, only to have spent the last decade and change trashing it in the most straightforward and outrageous manner possible.
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p>As an independent of somewhat moderate persuasion, it is hard to hear the type of criticism raised here by this dcsurfer and take it seriously.
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p>It is another political “argument” by the right that, if said often enough and loud enough, is generally believed by those on the right.
Not to mention banning gay marriage.
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p>To be fair it is a process difference. The right supports doing those things through Congress and then through state ratification, while the Warren court in many ways ‘interpreted’ the law to such an extent that it invented new laws and new standards in certain cases. That said, to have had Brown v Board occur through the process favored by the right, desegregation would have taken another generation. So it goes in both directions.
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p>At this point I would argue that on most significant issues, especially the right to privacy, that new amendments should be brought into the Constitution. Also completely agree on line item veto, if the Governors have it I see no reason why our President cannot.
He was the obviously well qualified candidate for our district US marshall. Kerry and Kennedy turned their backs on him. His only fault was that “R”. Senator Scott Brown: If you choose to vote no, for whatever reason you choose. I support you! Partisanship sucks when its not in your favor! Doesn’t it now?
Boston Globe Editorial
July 3, 2007
Reference
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… if they are Democrats, right?
That you accept the Globe’s word as anything authoritative.
That our former highest ranked police officer in our state is no good.
Partisanship does suck, no matter which side practices it.
Yeah, yeah, I know: democrats are entitled. Too bad the rest of us aren’t buying the BS anymore.
Ch, ch, ch, changes!
I feel the need to point out that 3/5 of a person thing was a move against slavery. Had every slave counted towards the number of reps states got rather than as 3/5 of a person, the South would have had considerably more legislative power in the antebellum period.
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p>So yes, at the time, anti-slavery Americans did agree with that 3/5 of a person thing and did not think it was a terrible idea in the first place.
I don’t know if the intentions are what you suggest, but the data seems to back you up:
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p>Distribution of slaves and free black men, 1790-1870
Had a slave counted as a “whole” person, the southern states would have had more representation in the House and Electoral College, which would have bolstered rather than undermined the peculiar institution.
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p>Nevertheless, the compromise at least implies approval or acknowledgment of chattel slavery, and the document itself can therefore be fairly described as defective as originally implemented.
They came so damn close to simply outlawing the horrid practice at the Convention that the 3/5’s compromise can really be seen as a step backward towards ‘a middle ground’ that was morally objectionable even in the late 18th century. Britain and post-revolutionary France abolished slavery and the Enlightenment that slave owning Jefferson allegedly believed in was strongly anti-slavery. I tend to disagree with the historical argument that the ‘country was not yet ready’ to end slavery. Firstly those arguments are always made out of a desperation to preserve a status quo by those that cling to it, but also abolishing slavery then would have been a lot easier since there were not that many slaves in this country and it was dying out organically since it was no longer economically feasible. Ironically the industrial revolution which would eventually make it obsolete helped usher in its worst period of growth and expansion in our country thanks in part to the cotton gin.
The convention had no power to outlaw anything. It needed ratification of the states, which simply would not have happened if the document banned slavery in 1789.