The best news about Elena Kagan is that she clerked for the late Supreme Court Justice Thurgood Marshall.
As hearings approach for President Obama’s latest nominee to the U.S. Supreme Court, some of Kagan’s opponents are trying to tar her for that clerkship, even though clerking for a Supreme Court justice is usually a sign of exceptional legal aptitude.
Kagan clerked for Marshall from 1987-1988. Right after Obama nominated her, GOP Chairman Michael Steele criticized her for supporting Marshall’s famous statement years ago that the Constitution, in its original form, was “defective.” Others repeated this tired criticism.
It is shoddy politics.
In fact, we all should be pleased that Kagan was afforded the opportunity to interact with, and learn from, Marshall, one of our nation’s legal giants.
And I hope Kagan embraces at least some of Marshall’s vision of a more just and equal America.
Marshall’s life and work helped frame our modern era, where there is more diversity, tolerance and civic equality. He served for 24 years on the U.S. Supreme Court, the first black to sit on the high court. He wrote important opinions and dissents on the right of privacy in one’s home, economic inequality, racial discrimination and the death penalty.
In addition, Marshall may have been the most important civil rights lawyer in the history of the United States. After all, he argued the crucial case of Brown v. Board of Education. Even the late William Rehnquist, a solidly conservative Supreme Court chief justice, acknowledged Marshall’s impact on the nation’s laws when he noted years ago that Marshall rewrote the “American constitutional landscape.”
All of this demonstrates that Kagan’s association with Marshall is good for the nation.
It is also good that the attempt to malign Kagan has afforded the nation an opportunity to examine Marshall’s controversial but correct comment about the Constitution.
In that original document, most blacks were non-citizens.
Even worse, blacks, most of whom were chattel slaves, were legally classified as three-fifths a person under this same Constitution. Chattel slavery — the buying, selling and exploitation of human beings — remained legal. It is an embarrassing history, but one we should never forget.
Women did not fare much better under the original Constitution. They did not have the right to vote, and would not obtain that right for 130 years, until the Constitution was amended.
The Constitution, in fact, has been amended multiple times since its creation, most notably to outlaw slavery, to provide all citizens “equal protection” and, as noted above, to extend voting rights to blacks and then women.
These amendments, and others, are what Marshall meant by a “living Constitution” in that same famous speech from 1987 marking the 200th anniversary of the document.
“The true miracle was not the birth of the Constitution,” Marshall stated, “but its life.”
Kagan understands that, which is one good reason she deserves to be confirmed.
Brian Gilmore, a lawyer and poet, lives in Takoma Park, Md. He can be reached at email@example.com.
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