Republicans are questioning Elena Kagan’s ties to a liberal icon and the nation’s first African American Supreme Court justice, Thurgood Marshall.
In its first memo to reporters since Kagan’s nomination to the high court became public, the Republican National Committee highlighted Kagan’s tribute to Marshall in a 1993 law review article published shortly after his death.
Kagan quoted from a speech Marshall gave in 1987 in which he said the Constitution as originally conceived and drafted was “defective.” She quoted him as saying the Supreme Court’s mission was to “show a special solicitude for the despised and the disadvantaged.”
Seriously?!? That's the opening attack on Kagen? She echoed Thrugood Marshall's belief that the original Constitution was "defective"?
Guess what? The Constitution "as originally conceived and drafted" was defective. Most notably, the section which said that slaves counted as 3/5ths of a person for census purposes. Are Republicans going to take the position that that was correct? Does the GOP basically want to rule out ALL the amendments since the Constitution's original draft?
UPDATE — Via Americablog, here is exactly what Thurgood Marshall said – slavery:
[T]he 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.
For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. "We the People" included, in the words of the Framers, "the whole Number of free Persons." On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at threefifths each. Women did not gain the right to vote for over a hundred and thirty years.
These omissions were intentional. The record of the Framers' debates on the slave question is especially clear: The Southern States acceded to the demands of the New England States for giving Congress broad power to regulate commerce, in exchange for the right to continue the slave trade. The economic interests of the regions coalesced: New Englanders engaged in the "carrying trade" would profit from transporting slaves from Africa as well as goods produced in America by slave labor. The perpetuation of slavery ensured the primary source of wealth in the Southern States.
Despite this clear understanding of the role slavery would play in the new republic, use of the words "slaves" and "slavery" was carefully avoided in the original document. Political representation in the lower House of Congress was to be based on the population of "free Persons" in each State, plus threefifths of all "other Persons." Moral principles against slavery, for those who had them, were compromised, with no explanation of the conflicting principles for which the American Revolutionary War had ostensibly been fought: the selfevident truths "that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
I think the GOP might have stronger opposition with the military recruiter argument. As Dean of Harvard Law School, Kagen disallowed the military from recruiting on campus. It wasn't because she was anti-military; it's because no recruiter on campus could engage in discrimination based on sexual orientation — which is what Don't Ask Don't Tell does.
UPDATE: Yeah, this was expected, too:
In a blog post for the far-right American Family Association (AFA) today, Bryan Fischer comes right out and says that the media should pointedly ask Kagan, “Are you a lesbian?” And if she is, according to AFA, she shouldn’t serve on the court:
It’s time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.
The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?
Americans For Truth — a group “devoted exclusively to exposing and countering the homosexual activist agenda” — also put out a statement saying that Kagan needs to answer, “Are (or were) you a practicing homosexual or do you consider yourself homosexual (gay)?” Last month, Focus on the Family also said that it would not be open to a gay Supreme Court justice.
UPDATE — Kevin Drum:
From Kathryn Jean Lopez, tweeting about Elena Kagan's nomination to the Supreme Court:
just wondering: are men allowed to be nominated to the supreme court anymore?
It's pretty remarkable just how little it takes to bring out the pity party in conservatives. Two women in a row and suddenly men are an endangered class in the American legal profession. Conservatives may not care much about discrimination against minorities, but they sure do snap to attention quickly whenever they spy any potential slight against the majority, don't they?