Tuesday, May 11, 2010

SCOTUS Nomination: Let the Insanity Begin

Only a day after President Obama nominated Solicitor General Elena Kagan to become an Associate Justice of the Supreme Court of the United States, the Republican insanity machine has already begun to spew idiocy and nonsense. Look, I’m not sold on Kagan, yet. I don’t know enough about her (though I plan to try to read and learn more). Of course, my worry is that she’s not liberal enough. But some of the criticism we’ve already heard is ridiculous. Let me offer two examples.

First, we’ve already heard several Republicans express concern that she doesn’t have any experience as a judge (let alone a federal judge). Just for fun, let’s look at the vast judicial experience of Chief Justice John Roberts. He clerked for a federal appellate court for one year and for the Supreme Court for one year before going into government service and later private practice (Kagan also clerked for a federal appellate court and the Supreme Court). Roberts was nominated to the bench but his nomination was not taken up by the Senate and died at the end of the first Bush administration (Kagan was also previously nominated and, like Roberts, her nomination was not taken up by the Senate and died at the end of the Clinton administration). He became a federal appellate court judge (not a trial judge) in June 2003. Just two years and one month later, President Bush nominated him to become an Associate Justice of the Supreme Court and two months after that, President Bush nominated him to become Chief Justice. I don’t recall hearing Republicans suggest that barely two years on an appellate court bench was insufficient experience to become a Supreme Court justice, let alone the Chief Justice. So, it appears that we’re expected to believe that a nominee must have judicial experience and two years is sufficient? Please.

While all recent justices have had at least some appellate or trial court experience, that hasn’t always been the “rule”. In fact, here’s a list of some former Supreme Court justices who had never sat on a bench until appointed to the Supreme Court:

  • William Rehnquist
  • Lewis Powell
  • Abe Fortas
  • Byron White
  • Arthur Goldberg
  • Earl Warren
  • Tom Clark
  • Harold Burton
  • Robert Jackson
  • James Francis Byrnes
  • William O. Douglas
  • Felix Frankfurter
  • Stanley Forman Reed
  • Owen Josephus Roberts
  • Harlan Fiske Stone
  • Pierce Butler
  • George Sutherland
  • Louis Brandeis
  • James Clark McReynolds
  • Charles Evans Hughes

And that list is limited to the last 100 years. Ah, but Republicans want us to think that Elena Kagan is different.

Somehow, this whole experience thing reminds me once again of the argument that many on the right made during the 2008 election that Sarah Palin had “more” or “better” experience than Barack Obama.

More troubling is the Republican decision to start their substantive criticism against Kagan on the basis of an article that she wrote talking about Thurgood Marshall for whom she clerked and viewed as a mentor. Remember the whole “wise Latina” controversy during the Sotomayor nomination? Well this one is worse. Yesterday, Michael Steele, chair of the Republican National Committee issued a statement in response to the nomination of Kagan. Here is an excerpt (emphasis added):

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.

First, let’s be sure to hold Republicans to the claim that they will “thoughtfully examine” the nomination. But I really want to focus on the portion of the statement that I’ve emphasized. First, here is what Kagan wrote:

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."

But what was Thurgood Marshall talking about when he called the original Constitution “defective”? Here’s an excerpt of Marshall’s Bicentennial Speech (emphasis added):

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. 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. 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 three-fifths 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 three-fifths 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 self-evident 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."

In other words, Marshall was critical of the original framework of the Constitution that permitted slavery and counted slaves (blacks) as 3/5 of a person; a framework that Marshall correctly noted was not resolved until the Civil War some 60 years later. Now reread what Kagan wrote:

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."

Not quite so horrifying now, is it?

But I also want to take issue with the very concept that the Republican National Committee’s statement seems to endorse; to-wit, if Kagan was wrong for commending Marshall who had, in turn, called the original Constitution defective, then doesn’t that mean, by implication, that the Republicans believe that the original Constitution was not defective? Do the Republicans believe that the original 3/5 compromise was good? Do the Republicans believe that slavery was good? Do the Republicans believe that the original Constitution was so perfect that it didn’t need to be amended? If that were true, we wouldn’t have the 1st Amendment, let alone the 2nd Amendment. I’m sure that Republicans beholden to the NRA would agree to that, right? And think about some of the other amendments that followed the Bill of Rights; amendments that, if the Constitution was so perfect, must not have been necessary. You know, little things like changing how the President and Vice President were elected (12th Amendment, 1804), equal protection (14th Amendment, 1868), having Senators elected by popular vote (17th Amendment, 1913), women’s suffrage (19th Amendment, 1920), and prohibition of poll taxes (24th Amendment, 1964) to name just a few.

For that matter, if the original Constitution was so perfect, then why would the Republican Party Platform call for at least four new Constitutional amendments? The 2008 Republican Party Platform called for a balanced budget amendment, an amendment to respect the rights of victims of crime, a “human life” amendment (extending the protections of the 14th Amendment to fetuses), and an amendment to prohibit same-sex marriage. Yep, it sure sounds like the Republicans think that both the original Constitution and the current amended Constitution are pretty darn perfect … except when they’re not. Or, to say it another way, the Republicans want to amend the Constitution to give rights to fetuses and crime victims, make sure that rights aren’t extended to homosexuals, and change the basic framework of how budgeting works, but someone (like Marshall or Kagan) who suggests that the original Constitution’s treatment of slaves and women and other fundamental freedoms and human rights wasn’t perfect is clearly far outside the mainstream of American society.

When will the idiocy stop?

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