President Barack Obama, right, after introducing Solicitor General Elena Kagan,left as his choice for Supreme Court Justice in the East Room of the White House in Washington, Monday, May 10, 2010.

*Shortly after news leaked that Solicitor General Elena Kagan would be nominated to the Supreme Court, the Republican National Committee sent a memo to reporters criticizing her tribute to Thurgood Marshall in a 1993 law review article published shortly after his death.

Kagan – who served as a law clerk for Marshall, the first African-American Supreme Court justice – quoted from a speech he 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.” [Scroll down for the full context of Marshall’s quote.]

So the RNC asks in its research document: “Does Kagan Still View Constitution ‘As Originally Drafted And Conceived’ As ‘Defective’? And Does Kagan Still Believe That The Supreme Court’s Primary Mission Is To ‘Show A Special Solicitude For The Despised And Disadvantaged’?”

RNC Chairman Michael Steele also used Kagan’s tribute to Marshall to criticize her nomination.

“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,” Steele said.


Kagan was officially announced as the SCOTUS nominee this morning by President Obama and Vice President Biden. Watch the ceremony below.

  • In 1987, Marshall delivered remarks at the annual seminar of the San Francisco Patent and Trademark Law Association. At the time, the Constitutional Bicentennial Celebration was underway, and, as Marshall noted in his speech, the year 1987 was “dedicated to the memory of the Founders and the document they drafted in Philadelphia,” and Americans were invited to “recall the achievements of our Founders and the knowledge and experience that inspired them, the nature of the government they established, its origins, its character, and its ends, and the rights and privileges of citizenship, as well as its attendant responsibilities.”

Said Marshall:

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.” United States Constitution, Art. 1, 52 (Sept. 17, 1787). 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. The 19th Amendment (ratified in 1920).

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.