Monday, May 10, 2010

The Kagan Nomination: Let's get it on...

With President Obama's nomination of former Harvard Law School Dean and current US Solicitor General Elena Kagan to the Supreme Court of the United States, it is now time for the political farce we call the nomination hearings.

Despite the fact Kagan only recently was easily confirmed as Solicitor General (with 5 former Republican Solicitors General supporting her) and despite initial positive reviews from GOP Senators Snowe and Graham, SCOTUS confirmations are nothing if not political theater. And the GOP is gonna try to milk this for whatever it's worth. Already, a GOP strategy conference call from before the nominee was known has leaked showing the Republicans' strategists telling them drawing the hearings out until after the midterms is important.

To this end, we've already seen some of the GOP's "concerns" made public:

-Kagan has no judicial experience. Despite the fact that anyone with a brain could see the GOP attacking another nomination from the appellate bench as being a problem ("How come we keep getting all these judges as nominees? We need some non-judges on the court.") This argument also ignores the fact that more than 1/3rd of our SCOTUS Justices have assumed their positions with no prior bench service.

-How come we keep getting women nominees? It's like a white man can't catch a break.

-She's an Ivy-league elitist. Don't we have enough of those?

-She didn't learn to drive until her 20s. Seriously...this is one attack that was floated today, probably the best example of how people are willing to throw whatever shit they can at the wall to gauge the temp and see what will stick.

-The one that got floated the most today, by both leaders of the Republican party. First, by the true leader, Rush and also by the figurehead leader, MC Michael Steel. That argument was pushed in a memo by MC Steele titled: "Does Kagan Still View Constitution 'As Originally Drafted And Conceived' As 'Defective'?" The problem with this argument is that Kagan was quoting her mentor (whom she clerked for) Thurgood Marshall. Marshall pointed out in a 1987 speech that blind worship of those men that gathered in Philadelphia in 1787 was misguided:

I cannot accept this invitation, for 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 threefifths each. Women did not gain the right to vote for over a hundred and thirty years.

Then, after speaking on the trial and tribulations our country had endured to arrive at, what President Lincoln would have called, our more perfect union, Marshall concluded:

The men who gathered in Philadelphia in 1787 could not have envisioned these changes. They could not have imagined, nor would they have accepted, that the document they were drafting would one day be construed by a Supreme Court to which had been appointed a woman and the descendent of an African slave. We the People" no longer enslave, but 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.

And so we must be careful, when focusing on the events which took place in Philadelphia two centuries ago, that we not overlook the momentous events which followed, and thereby lose our proper sense of perspective. Otherwise, the odds are that for many Americans the bicentennial celebration will be little more than a blind pilgrimage to the shrine of the original document now stored in a vault in the National Archives. If we seek, instead, a sensitive understanding of the Constitution's inherent defects, and its promising evolution through 200 years of history, the celebration of the "Miracle at Philadelphia" will, in my view, be a far more meaningful and humbling experience. We will see that the true miracle was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making, and a life embodying much good fortune that was not.

Thus, in this bicentennial year, we may not all participate in the festivities with flagwaving fervor. Some may more quietly commemorate the suffering, struggle, and sacrifice that has triumphed over much of what was wrong with the original document, and observe the anniversary with hopes not realized and promises not fulfilled. I plan to celebrate the bicentennial of the Constitution as a living document, including the Bill of Rights and the other amendments protecting individual freedoms and human rights.

So, could someone please explain to Michael Steele that it's probably not a good idea to argue that the Constitution which legalized slavery was not "defective." If he's gonna spit nonsense like that, we're gonna all agree to pay attention to only 3/5ths of the things Michael Steele says (which, for the Republican Party, is probably a good idea).

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