As much as Liberals want to make the concern Chairman Steele raised about Marshall and slavery, it isn't (and if it was, I'd note the Chairman admires Justice Marshall breaking barriers both as a lawyer and a justice, and helped rename BWI airport after him). It's about how Elena Kagan, who is being nominated for a lifetime appointment to the highest court in the land, views the role of the courts in our society.
Heye continued, saying Steele was making a point about judicial activism, not slavery.
"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. That was the point Chairman Steele raised and that is the issue Kagan must address in this confirmation process."