RNC still doesn't like Kagan's Thurgood Marshall quote

Republicans wonder why Kagan quoted the first black justice saying the Constitution was "defective"

Published May 10, 2010 9:25PM (EDT)

The Republican National Committee now appears to be doubling down on what was easily the strangest line of attack against Elena Kagan's nomination to the Supreme Court to emerge all day.

Early Monday -- as you may have seen elsewhere -- RNC chairman Michael Steele put out a statement attacking Kagan for quoting Justice Thurgood Marshall's criticism of the Constitution. "Given Kagan’s... 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 (as if Senate Republicans would listen to him before deciding what questions to raise, serious, tough or otherwise). Not long afterwards, the RNC put out a research memo raising what were intended to be alarming questions about her. From the memo:

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 It belongs to those who refused to acquiesce in outdated notions of "liberty," "justice," and "equality," and who strived to better them.'"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)

Of course, no sooner did those e-mails go out than people pointed out that actually, yes, the original Constitution -- which denied women the right to vote and counted blacks as 3/5 of a person -- probably did have a few defects. And we're not just talking lefty blogs here, either; on the National Review's Corner blog, usually a reliable home for political madness of all kinds, Abigail Thernstrom chastised the RNC in a post headlined, "Advice for Michael Steele." "Mr. Steele (and RNC staff), just as a little experiment, you might try thinking before you speak," she wrote. At the Democratic National Committee, aides appear to have spent the entire day doing nothing but e-mailing, calling and instant-messaging reporters to get them to write about the GOP document. Which is usually the sign that a piece of opposition research has failed to have the desired effect.

And yet, the RNC hasn't backed down. In a post on the party's blog, spokesman Doug Heye defended the research memo. He wrote:

Democrats and their allies on the Left and in the media are jumping on Chairman Steele’s statement on Solicitor General Elena Kagan this morning, in which he raised concerns about "her support [in a law review article] for statements suggesting that the Constitution 'as originally drafted and conceived, was "defective...'"

Yet while Marshall pointed to constitutional amendments as redressing the wrongs of slavery, Kagan moves beyond that, contending that, "The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modern Constitution is his..." The question for Kagan is whether she believes in a "modern Constitution" shaped by activist judges pursuing personal political agendas or whether she believes in basing judicial decisions based on the Constitution and the rule of law.

Which, in the end, makes sense. Why abandon a line of attack just because it's been ridiculed all day? The situation may actually be more nuanced than the initial coverage made it seem -- but there's no question that Steele's statement was phrased badly. You'd think the RNC would want to just move past the whole thing as soon as possible. But apparently, you'd be wrong.

By Mike Madden

Mike Madden is Salon's Washington correspondent. A complete listing of his articles is here. Follow him on Twitter here.

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Elena Kagan Michael Steele Republican Party Supreme Court War Room