Fox News Watchdog

Following the dissolution of Andrew Breitbart’s smear of former Obama administration official Shirley Sherrod, Media Matters provides an updated look at how his sensationalist stories have been based on speculation, gross distortions, and outright falsehoods.

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The lesson of Shirley Sherrod’s disgraceful treatment by right-wing and not-so-right-wing media (followed by her equally squalid dismissal by an administration that took that media at face value) boils down to a single question: When will journalists see Andrew Breitbart as the serial promoter of journalistic frauds that he is, rather than as a legitimate source for story ideas?

FAIR readers will remember Breitbart’s dissemination of videos that purported to show ACORN employees advising a “prostitute” and her “pimp” — conservative activists Hannah Giles and James O’Keefe–on how to avoid paying taxes. The videos have since been heavily debunked. As FAIR has noted before (Action Alert, 3/11/10), O’Keefe didn’t “pose” as a pimp–he didn’t wear his ridiculous  “pimp” outfit inside ACORN offices, and in almost every case pretended to be a concerned boyfriend trying to get his girlfriend away from an abusive pimp. He also did not receive advice on how to “cheat” on his taxes. Additionally,  ACORN has been cleared of wrongdoing by three separate independent investigations.

Breitbart’s latest fraud–posting a selectively edited video in which Sherrod appears to make some overtly racist statements to a local NAACP chapter–led to the forced resignation of the USDA employee.

That video went viral in the right-wing media and beyond, as accusations of Sherrod’s racism were tossed about, along with the larger implication that the Obama administration harbored racists. As Sherrod tells it, she soon received three separate calls telling her the White House was asking for her resignation, with one official telling her she would be on Glenn Beck that night.

The Sherrod story didn’t actually make it on Beck that night, but it was all over Fox News. Bill O’Reilly (7/19/10) called Sherrod’s comments “unacceptable” and called for her to “resign immediately.”  Sean Hannity (7/19/10) called the comments “racist” and praised Breitbart for exposing them.

The next day, as details of Sherrod’s entire speech emerged, it became clear she was describing her experience of struggling with and surmounting bias. Her point was an anti-racist one. Even the white farmer who was allegedly wronged by Sherrod appeared on CNN (7/20/10), along with his wife, to defend her.

Predictably, many right-wing media personalities stood by Breitbart even as the truth was being revealed. Rush Limbaugh (7/20/10) said Breitbart did “great work getting this video of Ms. Sherrod at the U.S. Department of Agriculture and her supposed racism.”  Hannity (7/20/10) invited Breitbart on his show to defend himself.  Meanwhile, O’Reilly (7/20/10) stood by his demand for Sherrod’s resignation, and even chastised the rest of the media for not reporting on Breitbart’s heavily edited video–adding it to a long list of invented right-wing controversies he believes have been ignored by the mainstream media, including the aforementioned ACORN hoax, as well as the  New Black Panther voter intimidation “scandal” and the Van Jones resignation–both of which were wildly overblown (Counterspin, 7/16/10; Extra!, 11/09), but were, contrary to O’Reilly’s protestations, picked up by more centrist media after amplification in the right-wing echo chamber.

The same is true of the Sherrod resignation, which some outlets continued to frame as a he said/she said controversy even after the truth began to emerge–outlets such as AP (7/20/10), which also took the opportunity to laud Breitbart’s BigGovernment.com as the site that “gained fame after releasing video of workers for the community organizing group ACORN counseling actors posing as a pimp and prostitute.”

In the Washington Post (7/21/10), Karen Tumulty and Krissah Thompson were still lending credence to Breitbart’s video even after the entire speech was released, reporting on the episode as a controversy between Sherrod and “her critics” as well as one that reinforces the right-wing narrative “that the administration of the first African-American to occupy the White House practices its own brand of racism.”

It isn’t surprising that right-wing media continue to exalt Breitbart, but when will the rest of the corporate media learn that he can’t be trusted?

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Fox News spent much of July 19 and 20 ginning up controversy about the false claim that Shirley Sherrod made racist remarks at a NAACP meeting earlier this year. As the claim unraveled, Fox media personalities disappeared their role in the story, continued to smear her as “descriminat[ory]” in the face of contradictory evidence, and boldly suggested the network did not contribute to the controversy.

Fox’s initial reaction: “Racist” Sharrod “must
resign”

O’Reilly: “Sherrod must resign,” her
remarks are “unacceptable.” On the July 19 edition
of his show, Bill O’Reilly played the edited portion of the tape and said “that is simply unacceptable. And Ms. Sherrod must resign
immediately.” He also falsely claimed that “the full transcript of Ms. Sherrod’s
remarks is posted on BigGovernment.com.”

Hannity called Sherrod’s remarks “[j]ust the
latest in a series of racial incitents,” called for the NAACP to be “held to account” to repudiate
Sherrod. On the July 19 edition
of his Fox News show, Sean Hannity asserted that Sherrod’s comments were “[j]ust
the latest in a series of racial incidents,” and stated that “So it’s
interesting that it took the new media to expose this.” He also asked Newt
Gingrigh if, “in light of the NAACP accusing the Tea Party of being a racist
movement last week,” he thought “the NAACP should be held to account for the
very standard they were demanding from the Tea Party.”

Perino: “This video adds fuel to a growing
controversy after the NAACP” asked the tea party to denounce racists.
On the July 19 edition
of On the Record, Dana Perino
suggested Sherrod’s remarks were racist, saying that “The video adds fuel to a
growing controversy after the NAACP approved a resolution condemning the tea
party movement for not denouncing racist members.”

Doocy: Sherrod “sure sounded racist,”
is “[e]xhibit A” of “what racism looks like.” On the July 19
edition
of Fox &
Friends, co-host Steve Doocy said that Sherrod made “a speech to the
NAACP that sure sounded racist.” Later, after guest-host Ailysn Camerota
asserted that Sherrod’s remarks are “outrageous and perhaps everybody needs a
refresher course on what racism looks like,” Doocy responded that Sherrod’s
comments are “Exhibit A.”

Beck plays “videotape of USDA
administration official discriminating against white farmers.”
On the July 20
edition of his radio show, Beck says that they
“have videotape of a USDA administration official discriminating against white
farmers.” He then asks, “Have we suddenly transported into 1956 except it’s the
other way around? … Does anybody else have a sense that there are some that just
want revenge? Doesn’t it feel that way?” After playing the audio of the tape,
Beck says, “You tell me what part of the gospel is teaching that.”

After the
tide turned: Fox “didn’t even do” the Sherrod story

Bret Baier absurdly claims Fox News
“didn’t even do” the Sherrod story. On the July 20 edition of
Special Report, Bret Baier
claimed “Fox News didn’t even do the story, we didn’t do it on Special Report, we posted it online.”

Beck on Fox: “Based on the facts that we have
right now, this is something that I wouldn’t air and demand a resignation on.”
On the July 20
edition of this Fox News show, Beck stated:
“I don’t think Shirley should have been fired — or, I’m sorry, forced to
resign. Based on the facts that we have right now, this is something that I
wouldn’t air and demand a resignation on.” He added that he “wouldn’t air” the
tape because “context
matters.”

Doocy on Sherrod: “What
was the big hurry for them to condemn her in the first place?” On the July 21 edition of Fox & Friends, Dana Perino and Steve
Doocy falsely
asserted that, in Perino’s words, “before the news even broke, she had
resigned.” Perino then stated that “everyone’s nerves are raw and exposed on
these racial questions, and I think we should all look before we leap.” Doocy
then stated: “What was the big hurry for them to condemn her in the first place?
I don’t get it, because the totality of what she said was out there.”

Rosen: “Did the White House
essentially railroad an innocent woman in this?” On the July
20 edition of Fox News’ Happening Now, James Rosen reported that
the additional context from Sherrod’s speech “appeared to corroborate” her
statement that she was telling the story of “how she came to see beyond race,”
and then asked: “Did the White House essentially railroad an innocent woman in
this because they are on edge themselves because of the Van Jones controversy,
the Black Panthers Party case, and other controversies?

The holdouts: Sherrod was still “discriminating” against
the farmer

Hannity doubles down, says Sherrod “still admits
discriminating,” suggested he’s unfairly “getting blamed.” On
the July 20 edition of
his show Hannity asserted that “She still admits
that she was
discriminating against this white farmer.” He added that “I’m getting blamed
and Fox News is getting blamed, but it’s the White House that made the decision before we ever aired the tape.”

O’Reilly’s ignores context, still
claims “What [Sherrod] said is ridiculous.” On the July 20
edition of his show, O’Reilly was still claiming
that “What [Sherrod] said is ridiculous,” and stated the real story is “the news
blackout” on the Sherrod story, and how “the establishment press tilts left and
is reluctant to do damage to a very liberal president.”

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The right-wing media initially praised Andrew Breitbart for his “great work” in publishing a video which he said depicted the supposed “racism” of then-Obama administration official Shirley Sherrod. However, Breitbart’s claims quickly unraveled when more information about the incident emerged and the full, unedited video was released.

“Breitbart
gets results”: Right-wing media initially praised Breitbart’s video

Limbaugh:
“Andrew Breitbart’s done great work getting this video.” On the July 20 edition of his radio
show, Rush Limbaugh stated: “Andrew Breitbart’s done great work
getting this video.” Limbaugh went on to claim that “you don’t need Shirley
Sherrod, or whatever her name is, to prove racism at the NAACP,” and said that
the “NAACP is as racist an organization as there has been and is in this
country.”

Ingraham:
“Andrew Breitbart … did a great piece on this whole thing.” In a July 20 appearance on Fox
& Friends, Laura Ingraham praised Breitbart’s video and his coverage
of the story, stating “Andrew Breitbart, by the way, did a great piece on this
whole thing. Fantastic.” Ingraham went on to ask “where was the media on this”
and claimed that it took “Breitbart to come forward with this story.”

America’s Nightly Scoreboard: “The triumph of Andrew Breitbart
over the establishment.” On the July 20 edition of Fox Business’ America’s Nightly Scoreboard,
host David Asman began the show declaring the “triumph of Andrew Breitbart over
the establishment.” The on-screen text repeated this claim. Asman also referred
to Breitbart as “our friend Andrew Breitbart” and stated that the video “shows
how inept government bureaucrats can be.”

From the
show:

Hannity:
“It took the new media to expose this.” On the July 19 edition of Fox News’ Hannity [via
Nexis], host Sean Hannity credited Breitbart with the story, saying, “[i]t was
on Breitbart.com and it happened some time ago. it’s interesting that it took
the new media to expose this.” Hannity later added that “Andrew Breitbart broke
this.”

Obenshain:
“It’s just a shame that it takes…Breitbart having to put it on his Web site,
for her resignation to be forced.” Also on the July 19 edition of Hannity, Kate
Obenshain of the Young America’s Foundation said that “[i]t’s just a shame that
it takes an expose, it takes Breitbart having to put it on his Web site, for
her resignation to be forced.”

Weasel
Zippers: “Andrew Breitbart strikes again. Bravo.” The conservative blog Weasel Zippers
reported on Shirley Sherrod’s resignation
on July 19 and stated “Andrew Breitbart strikes again. Bravo.” In a previous post, Weasel Zippers embedded the edited
video of Sherrod’s remarks and claimed in the post’s headline that “Andrew
Breitbart Proves the NAACP Awards’ Racism.”

Ace of
Spades: “Breitbart gets results.” On July 19, the blog Ace of Spades HQ reported on the coverage Breitbart’s video
received on a CBS affiliate in New
York, saying that “Breitbart gets results.” Ace also
noted that CBS ran the video “with a ‘SHOCK’ headline, no less.”

Morrissey:
“Breitbart hits NAACP with promised video of racism.” On July 19, Hot Air’s Ed Morrissey
published a blog post titled “”Breitbart hits NAACP with promised video of
racism.” In the post, Morrissey claimed that the “NAACP is about to learn
one of the most basic of all lessons in life,” thanks to Breitbart who
“announced that he would publish at least one video of the NAACP itself
cheering racism.” Morrissey announced that “Breitbart delivers on that promise
today at Big Government,” by posting a video of USDA official Shirley Sherrod
at an event for the NAACP. Morrissey also emphasized that the audience supposedly
“murmurs approvingly of using race to determine outcomes for government
programs, which is of course the point that Andrew wanted to make.”

Breitbart’s
allegations against Sherrod quickly unraveled

Atlanta Journal-Constitution: Sherrod says clip “completely
misconstrued” her comments. In the Atlanta Journal-Constitution‘s July 20 article (since updated) on the controversy
surrounding Shirley Sherrod’s statements at an NAACP banquet, the paper
reported that “the tale she told at the banquet happened 24 years ago — before
she got the USDA job — when she worked with the Georgia field office for the
Federation of Southern Cooperative/Land Assistance Fund.” The article also
reported that, according to Sherrod, the “38-second video posted online Monday
by biggovernment.com and reported on by
FoxNews.com and the AJC completely misconstrued the message she was trying to
convey.”

Video
producer confirmed that “the full speech is exactly as Sherrod described …
she goes on to explain learning the error of her initial impression.”
Talking Points Memo reported on
July 20 that “The Douglas, Ga., company which filmed the
banquet for the local NAACP has refused to release” the video until the
national NAACP gives him “permission” to post it. However, Wilkerson
told TPM “that the full speech is exactly as Sherrod described, and that
she goes on to explain learning the error of her initial impression and helping
the farmer keep his farm.”

“White
farmer” and his wife”: Sherrod is a “friend” who “helped us save our farm.” Later in the day, Sherrod appeared on CNN Newsroom to discuss
the accusations against her. On the show, anchor Tony Harris contacted the wife
of the “white farmer” Sherrod had discussed in her appearance at the NAACP
banquet. The wife, Eloise Spooner described Sherrod as “a good friend” who
“helped us save our farm.” In a later CNN interview, the farmer, Roger Spooner, said that Sherrod “did her level best”
to help him save his farm and those that are smearing her as a racist “don’t
know what they’re talking about.”

NAACP
releases full tape vindicating Sherrod. The NAACP released the full video of Sherrod’s comments on the evening
of July 20. In the video, Sherrod sates that “working with him [the white
farmer] made me see that it’s really about those who have versus those who
don’t.” She went on to state that “they could be black, and they could be
white, they could be Hispanic. And it made me realize then that I needed to
work to help poor people — those who don’t have access the way others have.”

As the
story dissolved, media across the board rejected Breitbart’s race-baiting lies. Media figures and outlets from across the board
have subsequently rejected Breitbart’s false claims against Sherrod. For
example, National Review Online’s Jonah Goldberg has said that Sherrod “owed apologies from pretty much everyone, including my
good friend Andrew Breitbart,” CNN’s Anderson Cooper said Sherrod’s
“comments she made were taken out of context.” with Sherrod smeared by
allegations of racism, lost her job, and is now being redeemed by the truth, it
seems, the whole truth,” and Fox News’ Glenn Beck said Sherrod “deserves her
job back.”

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Media Matters for America has compiled an updated list of 45 myths and falsehoods about Solicitor General Elena Kagan’s Supreme Court nomination.

Myth: Kagan banned military
recruiters from Harvard (UPDATED)

Myth: Kagan is
“anti-military”

Myth: Kagan “manipulated medical science” on abortion issue (NEW)

Myth: Kagan is
“radical”

Myth:
Kagan’s praise for an Israeli Supreme Court justice shows she’s a radical

Myth: Kagan’s thesis shows
she’s a socialist

Myth: Conservatives can
credibly argue that Kagan’s personal and political views are relevant to
confirmation process

Myth: “Kagan
Standard” means Kagan must answer questions about issues that will come
before the Supreme Court

Myth: Kagan’s Goldman Sachs
role taints her nomination

Myth: Conservative
opposition is based on the substance of Kagan’s nomination

Myth: Obama used
“empathy” standard rather than fealty to law in choosing Kagan

Myth: Kagan is unqualified
because she hasn’t been a judge

Myth: Kagan has said
judicial experience is an “apparent necessity”

Myth: Republicans would be
justified in opposing Kagan because she lacks a judicial paper trail

Myth: Kagan is
“Obama’s Harriet Miers”

Myth: Kagan’s record shows
that she will rubber-stamp war-on-terror policies

Myth: Kagan’s 23-year-old
statements about the Establishment Clause suggest she’s hostile to religion

Myth: Kagan’s recusal
obligations would be “extraordinary”

Myth: Kagan “can
become” too “emotionally involved on issues she deeply cares
about”

Myth: Kagan not “fair-minded,
impartial” and doesn’t have “proper temperament to be a judge”

Myth: Kagan is anti-free
speech

Myth: Kagan supports
banning books

Myth:
Kagan wanted to “ban pamphlets” by individuals

Myth: Kagan is anti-Second
Amendment

Myth: Kagan compared the NRA
to the Klan

Myth: Kagan banned ROTC
from campus

Myth: Kagan “cover[ed]
up” plagiarism at Harvard Law

Myth: Kagan’s citation of Marshall’s statement that
the original Constitution was “defective” is controversial

Myth:
Kagan’s memos to Justice Thurgood Marshall prove she’s outside mainstream

Myth: Kagan’s campaign
donations are unusual

Myth: Kagan supported Saudi
sponsors of terrorism

Myth: Kagan lied to the Supreme Court to protect Saudi sponsors of terrorism (NEW)

Myth: Kagan
accepted a gift by Saudi prince that brought Shariah at Harvard

Myth: Kagan acted
improperly in Warner
Creek case

Myth: As SG, Kagan indulged
her own views rather than defending the law (UPDATED)

Myth: Kagan is avoiding
“traditional interviews” with the press

Myth: Kagan supports holding terror suspects “without due process”

Myth: Kagan believes that foreign law trumps
constitutional law

Myth:
Kagan wants to protect sex offenders in the Catholic Church

Myth: Kagan supports
cloning human beings

Myth: Kagan must recuse herself from health care case (NEW)

Myth: Kagan said the Constitution changes with the times (NEW)

Myth: Kagan’s statement that she wouldn’t rely on natural rights is controversial (NEW)

Myth: Kagan’s Commerce Clause comments were extreme (NEW)

Myth: Sotomayor’s gun rights testimony casts doubt on Kagan’s honesty (NEW)

Myth: Kagan banned military recruiters from Harvard

CLAIM: Kagan “defied” the law and banned military recruiters
from Harvard. Phyllis Schlafly claimed in her March 31 syndicated column
that Kagan “defied the Solomon
Amendment” — a statute requiring schools to provide the same access
to military recruiters that they provide to other potential employers or lose
federal funding. Fox News’ Sean Hannity falsely
claimed that Kagan led an effort to “kick military recruiters off of
the college campus.”

REALITY: Kagan consistently followed the law, and Harvard students
had access to military recruiters during her entire tenure as dean.
Throughout Kagan’s tenure as dean, Harvard law students had access to military
recruiters — either through Harvard’s Office of Career Services or through the
Harvard Law School Veterans Association. Indeed,
the number of Harvard Law School students recruited by the military did not
decrease during Kagan’s tenure as dean. Moreover, Kagan consistently followed
existing law regarding access to military recruiters. Kagan briefly restricted
(but did not eliminate) access to recruiters only after the U.S. Court of
Appeals for the 3rd Circuit ruled that law schools could do so. As The New
York Times explained in a May 6 article:

[Kagan's] management of the recruiting dispute
shows her to have been, above all, a pragmatist, asserting her principles but all
the while following the law, so that Harvard never lost its financing.

[...]

[E]ven when she … briefly barred the military
from using the law school’s main recruitment office, she continued a
policy of allowing the military recruiters access to students. [emphases
added]

Moreover, during her confirmation hearing as solicitor general in 2009, Kagan
pledged to defend the Solomon Amendment.

CLAIM: Kagan’s actions and statements on “Don’t Ask, Don’t
Tell” and military recruiters were extremist and hypocritical. In
an April 18 article, The Washington Post noted
that Kagan had called the military’s “Don’t Ask, Don’t Tell” policy
“a profound wrong — a moral injustice of the first order” and said
her decision to continue allowing military recruiters to access Harvard’s career
center “causes me deep distress. … I abhor the military’s discriminatory
recruitment policy.” The Post quoted Ed Whelan suggesting that
Kagan’s quote was somehow “extreme”:

“For someone who has been so guarded on so
many issues, she used strikingly extreme rhetoric. ‘Moral injustice of the
first order’ would seem fit for something like the Holocaust,” said Ed
Whelan, president of the conservative Ethics and Public Policy Center.
“This is one issue that provides some jurisprudential clues as to how much
her reading of the law will be biased by her policy views. If she is the
nominee, that is an angle that I would press.”

Whelan has separately claimed
that the fact that Kagan relented to Bush administration pressure to allow
military recruiters to access the career center is evidence that Kagan is a
hypocrite who engaged in “cheap and contemptible moral posturing.”

REALITY: Kagan’s objections to DADT are mainstream, and her
willingness to comply with and, as solicitor general, defend the Solomon
Amendment demonstrates devotion to the rule of law. Kagan’s moral
objection to “Don’t Ask, Don’t Tell” is hardly “extreme.”
For example, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has
suggested that the ban on openly gay service members compromises the military’s
“integrity.” Moreover, Kagan’s decision to abide by the Solomon
Amendment doesn’t indicate hypocrisy; it indicates a commitment to the rule of
law.

FACT: Kagan allowed military recruiters access to Harvard Law
School’s Office of Career
Services. In the 1980s and 1990s, based on its anti-discrimination
policy, Harvard Law School
refused to allow military recruiters to use the school’s Office of Career
Services (OCS) because of the military’s discriminatory “Don’t Ask, Don’t
Tell” policy. In 2002, after the Bush administration threatened federal
funding at Harvard, Kagan’s predecessor as dean created an exception to
Harvard’s anti-discrimination policy and allowed military recruiters access to
OCS. When Kagan became
dean in 2003, she continued to allow military recruiters access to OCS.

FACT: After an appellate court — including a Reagan appointee –
ruled Solomon Amendment unconstitutional, Kagan prohibited Harvard’s career
office from working with recruiters for one semester. In 2004, a
three-judge panel of the 3rd Circuit held
2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First
Amendment free-speech rights: “The Solomon Amendment requires law schools
to express a message that is incompatible with their educational objectives,
and no compelling governmental interest has been shown to deny this
freedom.” Judge Walter Stapleton, a Reagan
appointee, joined the majority opinion in the case. Following the 3rd
Circuit’s ruling, Kagan revoked the military’s exemption from Harvard’s
non-discrimination policy and reinstated
the restrictions against military recruitment through OCS for one semester in
2005. After the Bush administration threatened to revoke Harvard’s federal
funding, Kagan once again granted military recruiters access to OCS. In 2006,
the Supreme Court reversed
the 3rd Circuit decision.

FACT: During that one semester, students still had access to
military recruiters via the Harvard
Law School
Veterans Association. The New York Times noted
on May 6 that “even when [Kagan] … briefly barred the military from
using the law school’s main recruitment office, she continued a policy of
allowing the military recruiters access to students.” As Kagan explained
in a September 2005 letter
to her colleagues:

The Law
School’s
anti-discrimination policy, adopted in 1979, provides that any employer that
uses the services of OCS to recruit at the school must sign a statement
indicating that that it does not discriminate on various bases, including
sexual orientation. As a result of this policy, the military was barred for
many years from using the services of OCS. The military retained full access to
our students (and vice versa) through the good offices of the Harvard Law
School Veterans Association, which essentially took the place of OCS in
enabling interviews to occur.

[...]

I reinstated the application of our
anti-discrimination policy to the military (after appropriate consultation with
University officials) in the wake of the Third Circuit’s decision; as a result,
the military did not receive OCS assistance during our spring 2005 recruiting
season.

FACT:
Harvard’s data show Kagan’s actions did not adversely impact military
recruitment. The
notion that military recruitment was adversely affected by Kagan’s actions
is contradicted by
data Media
Matters obtained
from Harvard Law School’s public information officer. The prohibition on Harvard
Law’s OCS working with military recruiters existed during the spring 2005
semester, meaning that it could only have affected the classes of 2005, 2006,
and 2007. However, the number of graduates from each of those classes who
entered the military was equal to or greater than the number who entered the
military from any of Harvard’s previous five classes.

Number
of Harvard Law School graduates who entered the military, by graduating
class:

2000
– 0
2001 — 3
2002 — 2
2003 — 2
2004 — 3
2005 — 5
2006 —
3
2007 — 3
2008 — 2
2009 — 2

NPR’s
Nina Totenberg similarly
reported: “[T]he numbers of students who signed up with the military
remained constant while [Kagan] was dean. In fact, they even occasionally
increased.”

FACT: Harvard’s non-discrimination policy applied to all employers,
not just the military. As Supreme Court expert and attorney Tom
Goldstein noted in a May 8 SCOTUSblog post: “Some commentators have claimed that Kagan’s
position on the Solomon Amendment reflects an anti-military bias. That
criticism is unsound. Harvard’s position — which predates Kagan’s tenure as
dean — was not directed at the military but instead is a categorical
nondiscrimination rule applicable to all potential employers. It is a position
that is widely shared among American law schools.”

FACT: Dozens of law professors, other law schools, and the Cato
Institute argued against government’s interpretation of Solomon Amendment.
Kagan’s legal actions and statements regarding “Don’t Ask, Don’t
Tell” were by no means extreme. As Media Matters has documented, Kagan
joined a brief filed on behalf of 40 Harvard law professors arguing against the
government’s interpretation of the Solomon Amendment. Briefs filed on behalf of
100 other law professors also argued against the Solomon Amendment or the
government’s interpretation of that amendment, as did other organizations,
including the Cato Institute.

FACT: Numerous law schools restricted military recruiters’ access
because of the discriminatory “Don’t Ask, Don’t Tell” policy.
The Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld
to the Supreme Court contains statements from numerous law professors detailing
their law schools’ attempts to restrict military recruiters’ access to career
services offices. Following the 3rd Circuit’s decision, in addition to Harvard,
Yale and New York Law School also reportedly reinstituted
their restrictions against military recruiters.

FACT: Mullen said DADT compromises military’s “integrity.”
While conservatives like Whelan have claimed Kagan’s rhetoric opposing the ban
on openly gay service members is somehow extreme, Mullen has similarly argued
that the policy compromises the military’s “integrity.” In February 2
Senate testimony, Mullen stated:

Mr. Chairman, speaking for myself and myself only,
it is my personal belief that allowing gays and lesbians to serve openly would
be the right thing to do. No matter how I look at the issue, I cannot escape
being troubled by the fact that we have in place a policy which forces young
men and women to lie about who they are in order to defend their fellow
citizens.

For me, personally, it comes down to integrity –
theirs as individuals and ours as an institution.

I also believe that the great young men and women
of our military can and would accommodate such a change. I never underestimate
their ability to adapt.

FACT: Kagan pledged to defend Solomon Amendment as solicitor general
despite her personal views. In a written statement
during her confirmation process for solicitor general, Kagan wrote:

As I stated at my confirmation hearing, I know well
the facts and issues involved in Rumsfeld v. FAIR, 547 U.S. 47 (2006),
and I feel confident in saying that had I been Solicitor General at the time
that the 3rd Circuit held the Solomon Amendment unconstitutional, I would have
sought certiorari in the Supreme Court, exactly as then-Solicitor General Paul
Clement did. A fortiori, now that the Supreme Court has upheld
the Solomon Amendment, if confirmed I would vigorously defend it against
constitutional challenge. I would not recuse myself from participating
in or personally arguing such a case because I would feel confident in my
ability to supply such a defense given the responsibilities and role of the
Solicitor General. I understand that role as representing the interests of the United States,
not my personal views. I indeed think that I would enjoy, as well as be deeply
honored by, the Solicitor General’s position if I am fortunate enough to be
confirmed. The advocate’s role is frequently to put aside any interests or
positions other than those of her clients. And as I hope I expressed at my
confirmation hearing, I would take enormous pride in representing and advancing
the interests of the United
States as a client — even if I would not
myself have voted for every one of its statutes. [emphasis added]

[TOP]

Myth: Kagan is “anti-military”

CLAIM: Kagan is an “anti-military loon” with
“hostility to the U.S.
military.” Bill Kristol wrote
on The Weekly Standard’s blog that Kagan’s position on military
recruiters at Harvard reflected “hostility to the U.S. military,” and
Gateway Pundit blogger Jim Hoft called
Kagan an “anti-military loon.”

REALITY: Kagan’s support of the military is well established. Kagan
has repeatedly praised the military — describing it as the “noblest of
all professions” — even while opposing the “Don’t Ask, Don’t
Tell” policy. Military veterans at Harvard Law have affirmed Kagan’s
support for the military.

FACT: Kagan repeatedly praised military, cadets in West
Point speech. In an October 17, 2007, speech
at the United States Military Academy at West Point, New York, Kagan repeatedly
praised the military, stating: “I am in awe of your courage and your
dedication, especially in these times of great uncertainty and danger.”
She went on to say:

I don’t accept many outside speaking invitations;
this may be the only talk of this kind that I’ll give this year. I accepted this
invitation primarily to thank all of you senior cadets — and to wish you
godspeed as you go forward to serve your country and your fellow citizens in
the greatest and most profound way possible.

[...]

In part because of these connections, still more
because of the vital role the military plays in the well-being of our country,
I have been grieved in recent years to find your world and mine, the U.S.
military and U.S. law schools, at odds — indeed, facing each other in court –
on one issue. That issue is the military’s don’t-ask-don’t-tell policy. Law
schools, including mine, believe that employment opportunities should extend to
all their students, regardless of their race or sex or sexual orientation. And
I personally believe that the exclusion of gays and lesbians from the military
is both unjust and unwise. I wish devoutly that these Americans too could join
this noblest of all professions and serve their country in this most important
of all ways.

[...]

But I would regret very much if anyone thought that
the disagreement between American law schools and the US military
extended beyond this single issue. It does not. And I would regret still more
if that disagreement created any broader chasm between law schools and the
military. It must not. It must not because of what we, like all Americans, owe
to you. And it must not because of what I am going to talk with you about
tonight — because of the deep, the fundamental, the necessary connection
between military leadership and law. That connection makes it imperative that
we — military leaders and legal educators — join hands and be partners.

FACT: Kagan has repeatedly praised the military even while opposing
DADT. In an October 6, 2003, email
announcing that Harvard Law School would allow military recruiters on campus,
Kagan wrote that “[t]he importance of the military to our society — and
the extraordinary service that members of the military provide to all the rest
of us — makes this discrimination [against gay troops] more, not less,
repugnant,” a sentiment she reiterated in a 2005 letter
offering “background” on the school’s position on military recruiting
on campus. In October 2004, Kagan reportedly said
in protest of the ban on openly gay troops: “These men and women,
notwithstanding their talents, their conviction, their courage, cannot perform
what I truly believe to be the greatest service a person can give for their
country. And that’s just wrong, that’s just flat out wrong.” In a 2008 statement
on the military recruiting issue, Kagan wrote, “The military is a noble
profession, which provides extraordinary service to each of us every day.”

FACT: Veterans at Harvard Law, conservative legal blog have rejected
claim that Kagan is “anti-military.”

• Harvard Law
  veterans: “Kagan has great respect for the military.” Responding
  to a January 30, 2009, Washington Times op-ed
  by Flagg Youngblood labeling Kagan an “anti-military
  zealot,” three Iraq war veterans attending Harvard Law School wrote
  in a letter
  to the editor that Kagan has “created an environment that is
  highly supportive of students who have served in the military” and
  that “[u]nder her leadership, Harvard Law School has also gone out of
  its way to highlight our military service.” The Harvard Law
  Record later reported
  on the veterans’ letter, quoting Iraq veteran Geoff Orazem as saying,
  “Kagan has great respect for the military.”

• Conservative legal
  blog: No reason to believe Kagan is hostile to the military. At
  Volokh Conspiracy, a group blog run by mostly conservative law professors,
  George Mason University law professor Ilya Somin wrote:
  “I don’t see any reason to believe that [Kagan's decision on military
  recruiters] reflects a general hostility towards the armed forces.”

[TOP]

Myth: Kagan “manipulated medical science” on abortion issue

CLAIM: Kagan “manipulated medical findings” to support “partial-birth abortion.” Right-wing media
outlets have claimed that Kagan — in the words of The Washington Times — “manipulated medical findings to support the argument for partial-birth abortion.” These outlets made this claim on the basis of handwritten notes in Kagan’s files from the Clinton White House calling a draft statement by the American College of Obstetrics and Gynecology (ACOG) that opposed a bill banning so-called “partial-birth abortions” a “disaster.” ACOG’s draft statement stated: “a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.” Kagan’s handwritten notes contained a suggestion that ACOG add the following to its statement: “An intact D&X [the procedure ACOG determined was banned by the bill], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” That addition appeared in the final draft of ACOG’s statement. Some have even gone so far as to suggest that Kagan lied when she testified that ACOG told her that “partial-birth abortion” was sometimes “the medically best procedure.”

REALITY: Kagan did not ask ACOG to change its medical findings, and ACOG did not do so; furthermore, Kagan’s testimony that ACOG told her that the procedure was “sometimes the best” is supported by the evidence. ACOG’s final statement on the “partial-birth abortion” bill does not conflict with its draft statement on the issue. Indeed, in its initial statement, ACOG had opposed the bill, saying that it might outlaw techniques “that are critical to the lives and health of American women.”

In addition, according to sworn testimony by a member of the ACOG task force that studied “partial birth abortion,” the task force itself determined that there were some situations in which an intact D&X would be “clearly the best choice” to preserve the health of a pregnant woman. Documents in Kagan’s White House files back up this testimony. Furthermore, there is no evidence that Kagan attempted to change ACOG’s finding that there were no circumstances in which intact D&X “would be the only option to save the life or preserve the health of the woman.” Indeed, Kagan informed Clinton of ACOG’s finding to that effect.

Additionally, Kagan advocated for a compromise position on the abortion bill, advising Clinton to support a bill that would ban late-term abortions regardless of the procedure with a narrowly drawn health exception.

FACT: ACOG’s final statement on the “partial-birth abortion” bill does not conflict with its draft statement. The draft ACOG statement and the final statement both oppose the “partial-birth abortion” bill. Both versions say that “a select panel convened by ACOG could identify no circumstances under which this procedure [intact D&X] as defined above, would be the only option to save the life or preserve the health of the mother.” Both statements also say that: “The potential exists that legislation prohibiting specific medical practices, such as intact D&X may outlaw techniques that are critical to the lives and health of American women.” The final statement fleshed out this latter point, by saying that intact D&X “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Here is the relevant paragraph of ACOG’s draft statement:

Terminating a pregnancy is indicated in some circumstances to save the life or preserve the health of the mother. Intact D & X is one of the methods available in some of these situations. However, a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman’s particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and potentially dangerous.

And here is the relevant section of ACOG’s final statement for comparison:

Terminating a pregnancy is performed in some circumstances to save the life or preserve the health of the mother. Intact D & X is one of the methods available in some of these situations. A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D &. X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor. In consultation with the patient, based upon the woman’s particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.

FACT: According to sworn testimony, ACOG’s task force on “partial-birth abortion” had evidence that, in some circumstances, the procedure was “clearly the best choice.” As SCOTUSBlog publisher Tom Goldstein has noted, Dr. Joanna Cain testified during the litigation over the federal law that banned “partial-birth abortion” that “I am well aware of multiple circumstances that an expert panel could identify at the time of the task force where it was clearly the best choice, including in my field, where the other options led to a higher likelihood of death or recurrence of disease.” From Cain’s February 10, 2004, deposition (via Lexis):

Q. Well, if you want to look at Exhibit 7–I’ll go a little above that. “Terminating a pregnancy is indicated in some circumstances to save the life or preserve the health of the mother.” This was, obviously, a conclusion of the select panel; is that correct?

A. That is correct, and we could identify numerous circumstances in which this might be the best procedure for that, rare but still numerous.

[...]

Q. Are you aware of any analysis or study–let’s strike that and say, are you aware of any study which supports the conclusion that intact D&X may be the best or most appropriate procedure in certain circumstances?

A. I’m not aware of a study. I am well aware of multiple circumstances that an expert panel could identify at the time of the task force where it was clearly the best choice, including in my field, where the other options led to a higher likelihood of death or recurrence of disease.

FACT: Memo in Kagan’s files supports testimony that ACOG had found some circumstances in which the procedure was the best option. In June 1996 — months before ACOG’s draft and final statement on the “partial-birth abortion” bill — Kagan wrote a memorandum to White House counsel Jack Quinn that stated that ACOG had identified some circumstances in which the “partial-birth abortion” procedure was the “least risky” alternative. Kagan stressed that the number of cases in which the procedure was the best option to preserve the woman’s health was “exceedingly small,” but nevertheless, according to ACOG, such cases existed.

From Kagan’s memo:

Melanne, Todd, Jennifer Klein, John Hart, and someone from Betsy Myers’s office met a few days ago with the former President and the current chief lobbyist for the American College of Obstetrics and Gynecology (ACOG). For many months, the folks at ACOG had been unwilling to speak with us about the medical issues surrounding the partial birth ban, but Marilyn Yeager convinced them to do so, and this meeting was the result. It was something of a revelation.

Two important points emerged from the meeting. First, there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated. In the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health; another option — whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term — is equally safe .. I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable — post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. — and there just aren’t many where use of the partial-birth abortion is the least risky, let alone the “necessary,” approach. No one should worry about being able to drive a truck through the President’s proposed exception; the real issue is whether anything at all can get through it.

Second and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives. Again, I’ll spare you the details, but the other three — all of whom were carrying malformed fetuses in the third trimester — could have given birth, either through induction or through carrying the fetus to term, without serious risk to their health. (The partial birth procedure in these cases was the least risky method of abortion, but this is not a strong argument, given that all these fetuses were post-viability -when most states, and the President himself, would prohibit all abortions except for life or health reasons.)

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.)

FACT: Kagan testified: “I recall generally … talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them.” During her confirmation hearing, Sen. Orrin Hatch (R-UT) asked Kagan about her memo in which she said it would be a “disaster” if ACOG issued its draft statement. Kagan explained that “the disaster would be, if the statement did not accurately reflect all of what ACOG thought. Both, I mean, that there were two parts of what ACOG thought. And, I recall generally, not with any great specificity, but recall generally talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them — that it was both, not the only procedure, but also that it was in some circumstances the medically best procedure. And in their final statement that sentence, that it was not the only procedure, of course, remained because that is what they thought. But, we did have some discussions about clarifying the second aspect of what they also thought, which was that it was in some circumstances the medically most appropriate procedure.” [starts about 203:00]

FACT: Kagan testified: “There was no way I could have or would have intervened with ACOG to get it to change its medical views on the question.” After Hatch claimed that it “bother[ed]” him that Kagan “intervened in that particular area in that way,” Kagan said: “Senator Hatch, there was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians, to get it to change its medical views on the question. The only question that we were talking about was whether this statement that they were going to issue accurately reflected the views that they had expressed to the President, to the President’s staff, to Congress, and to the American public.”

FACT: Kagan advocated for middle position that would have banned late-term abortions with a narrowly drawn health exception. In a May 1997 memo, Kagan and her boss Bruce Reed advised President Clinton to endorse a proposal that would ban abortions after the fetus has become viable with a narrowly drawn health exception that would only apply if a physician “certifies that continuation of the pregnancy would … risk grievous injury to [the mother's] physical health.” From the memo:

As you know, the Senate is taking up the Partial Birth Abortion Act (HR 1122) this afternoon. We expect Senator Daschle and Senator Feinstein to offer substitute amendments during the course of the debate. We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals.

[...]

Most critically, both amendments contain a health exception, though of different kinds. The Feinstein legislation would exempt an abortion if, “in the medical judgment of the attending physician, the abortion is necessary to … avert serious adverse health consequences to the woman.” This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician “certifies that continuation of the pregnancy would … risk grievous injury to [the mother's] physical health.” “Grievous injury” is then defined as “a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition.”

FACT: In 2000, the Supreme Court ruled that a more restrictive abortion law than the one Kagan advocated was unconstitutional. In Stenburg v. Carhart, the Supreme Court struck down Nebraska’s “partial-birth abortion” statute, in part, because the law did not contain a health exception. Seven years later, in Gonzales v. Carhart, a case decided after Justice Samuel Alito replaced Justice Sandra Day O’Connor on the court, the Supreme Court upheld a federal ban on “partial-birth” abortion even though the statute did not contain a health exception. Four justices dissented in Gonzales v. Carhart, including Justice John Paul Stevens, whom Kagan has been nominated to replace.

[TOP]

Myth: Kagan is “radical”

CLAIM: Kagan is a “radical” who is “outside the
mainstream.” Conservatives have indicated they will brand any
Obama Supreme Court nominee — including Kagan — as a radical. For example,
conservative activist Richard Viguerie has reportedly said,
“The more quickly we can identify [the nominee] as an ideological liberal,
the easier it is for us to communicate to the American people how radical the
president is and the nominee is.” Similarly, Fox News’ Glenn Beck has said that President Obama
is going to pick a “radical” nominee. In a March 19, 2009, Family
Research Council Action press
release, Tony Perkins claimed that Kagan “is well outside the
mainstream of public opinion and to the left even of President Obama.”

FACT: Kagan is considered to be relatively moderate. Reuters
noted
on May 7 that Kagan is “considered one of the more moderate choices on
Obama’s short list of potential court nominees.”

FACT: Numerous conservatives have praised Kagan.

• NRO’s Daniel Foster
  praised Kagan as being “well-respected by just about everybody on
  both sides.” In an April 9 post
  on The Corner, National Review Online news editor Daniel Foster wrote that
  Kagan “is well-respected by just about everybody on both sides.”

• Bush assistant AG:
  “Kagan combines principle, pragmatism, and good judgment better than
  anyone I have ever met.” In a letter
  supporting Kagan’s nomination for solicitor general, Jack Goldsmith –
  former assistant attorney general for the Office of Legal Counsel during
  the Bush administration — stated: “It might seem over the top to say
  that Kagan combines principle, pragmatism, and good judgment better than
  anyone I have ever met. But it is true.”

• Starr, Olson and
  bipartisan group of former solicitors general: Kagan held in “high
  regard” by “persons of a wide variety of political and social
  views.” In a letter
  sent by people who “serv[ed] as Solicitor General over the past
  quarter century, from 1985 to 2009,” Charles Fried, Kenneth Starr,
  Drew Days, Walter Dellinger, Seth Waxman, Theodore Olson, Paul Clement,
  and Gregory Garre stated:

The well-deserved stature that Kagan has achieved in the legal profession
will enhance her tenure as Solicitor General, ensuring that, within the
executive branch, her voice and the conclusions reached by the Solicitor
General will be accorded the highest respect. The extraordinary skill she has
demonstrated in bringing to Harvard an impressive array of new scholars, her
ability to manage and lead a complex institution, and the high regard in which
she is held by persons of a wide variety of political and social views, suggest
that she will excel at the important job of melding the views of various
agencies and departments into coherent positions that advance the best
interests of the national government.

• Former Bush lawyer
  Berenson lauded Kagan’s “fair-minded consideration of competing
  views.” From a letter
  by former Bush administration associate White House counsel Bradford
  Berenson supporting Kagan’s solicitor general nomination:

Her legal acumen is more than equal to the task she faces, as reflected in
her scholarship. The spirit of toleration and fair-minded consideration of
competing views she brought to the Deanship reflect the sort of temperament and
judgment that will inspire confidence in the Justices of the Supreme Court as
well as the private parties with whom she will need to interact as SG. The same
institutional loyalty that has enabled her to put Harvard
Law School’s
interests ahead of her own will undoubtedly cause her to do likewise in service
of the United States.

Steve Hayes: Kagan is “persuasive to people who might not
otherwise be predisposed to agree with her.” On the May 7 edition
of Fox News’ Special Report, Fox News contributor Steve Hayes stated that Kagan is
“someone who can make convincing and compelling arguments and marshal her
arguments in a way that is persuasive to people who might not otherwise be
predisposed to agree with her. And I think you’re seeing that to a certain
extent in the sort of half-embrace that she’s getting from some conservatives,
particularly conservative academics.”

[TOP]

Myth: Kagan’s praise for an Israeli Supreme Court justice shows she’s a radical

CLAIM: Kagan’s praise for Aharon Barak is outside the mainstream. WorldNetDaily.com, National Review Online’s Ed Whelan, and former Judge Robert Bork
baselessly suggested Kagan is not mainstream because she reportedly
once called retired Israeli Supreme Court Justice Aharon Barak “my
judicial hero.”

REALITY: Kagan is not alone in praising Barak — prominent conservatives have praised him as well. Kagan’s
praise for Barak is hardly evidence that she is outside the mainstream.
U.S. Supreme Court Justice Antonin Scalia reportedly sang Barak’s
praises while presenting him an award. And former Reagan administration
Solicitor General Charles Fried called Barak “superhuman.”

FACT: Former Reagan SG praised Barak at same event in which Kagan praised Barak. At the same event in which Kagan praised Barak, Fried described Barak
as “superhuman, a mythical character” who “manages to integrate the
principle elements of law and judging, that is to say text, history,
custom, precedent and to come up with the one right answer.” From the event (at the 42:45 mark of the C-SPAN video):

FRIED: The philosopher Ronald Dworkin — in his, I think, chef-d’ouvre, his absolutely best piece written many years ago and published in the Harvard Law Review,
which was called “Hard Cases” — develops a theory of judging. And his
picture is of a judge, superhuman, a mythical character, whom he calls
Hercules, who manages to integrate – and I use the word integrate in
the mathematical sense where you [gestures] — manages to integrate the
principle elements of law and judging, that is to say text, history,
custom, precedent and to come up with the one right answer. It is a
remarkable experience to be in the presence of and to have just heard a
lecture from a living myth. Because Hercules lives, and you have just
heard from him.

FACT: Conservative Justice Scalia reportedly praised Barak while presenting him with an award. In addition, in a July 10, 2007, profile of Barak in the Jewish Daily Forward,
Benjamin Soskis wrote that Scalia presented Barak with the American
Association of Jewish Lawyers and Jurists’ Pursuit of Justice in March
2007. Soskis wrote that Scalia was “singing Barak’s praises,” even as he “addressed the other obvious disparity between himself and the honoree.”

[TOP]

Myth: Kagan’s thesis shows she’s a socialist

CLAIM: Kagan’s thesis shows that she was a radical or a socialist. On his May 10 radio show, Beck said, “The
new justice … has been named, Elena Kagan. Another left activist.” Glenn
Beck discussed Kagan’s college thesis — which was titled, “To the Final
Conflict: Socialism in New York City,
1900-1933″ — claiming that it was a “call to action” for socialists,
while show producer Pat Gray said it “sounded like she was endorsing”
socialism. On the May 10 edition of his Fox News show, Sean Hannity said: “Now
the administration may also have been a fan of Kagan’s senior thesis, in which
she explored the history of the socialist movement here in the U.S. So is this
just another Obama radical being elevated to the highest levels of our
government?”

REALITY: Kagan is not and was not a radical or a socialist; her
thesis simply explored historical questions about socialism. Kagan did
not express personal support for socialism or radicalism in her 130-plus-page
undergraduate senior thesis, which she wrote as a history student at Princeton in 1981. Rather, she explored the historical
question of why socialism did not become a major political movement in the United States
as it had elsewhere in the world. Specifically, Kagan discussed the rise and
fall of socialism in New York City
in the early 20th century, with a particular emphasis on why the movement
collapsed. Kagan’s thesis adviser has said that Kagan has never been a
socialist, and one of her college peers described her views in college as
“well within the mainstream of the … sort of liberal, democratic,
progressive tradition.” Despite the fact that Kagan’s thesis is publicly
available, Republicans did not raise the issue during her confirmation as
solicitor general, suggesting that none of them believed that she was actually
a socialist. Moreover, during Justice Samuel Alito’s confirmation hearing,
conservatives criticized Democrats for focusing on what Alito did in college.

FACT: Republicans did not raise thesis “socialism” issue during
Kagan’s solicitor general confirmation. The title of Kagan’s thesis is
publicly available on Princeton’s website,
and the thesis itself can be easily obtained by contacting Princeton.
Thus, if Republicans actually believed the thesis is evidence that Kagan
harbored socialist views, they presumably would have raised the issue during
her confirmation for solicitor general in 2009. But at no point during Kagan’s
February 10, 2009, Senate hearing, the written
questions following the hearing, or the March 19, 2009, floor
debate on her nomination did any senator — Republican or Democratic –
address Kagan’s undergraduate thesis or concerns that she held socialist
beliefs.

2009: Kagan’s thesis adviser told Salon that Kagan “is not a
socialist” and that she was asking “an absolutely standard”
historical question in her thesis. In a May 8, 2009, post,
Salon.com senior writer Alex Koppelman quoted Kagan’s thesis adviser, Princeton
professor Sean Wilentz, disputing claims that Kagan’s thesis indicates she’s a
socialist:

Princeton History Professor Sean Wilentz, who
served as Kagan’s thesis advisor (and who has previously written for Salon)
told Salon that she is not a socialist, and that the question she was asking
with the paper “was an absolutely standard” one about why the U.S.
hasn’t had the same kind of radical movements that have flourished in the rest
of the world.

“Was she sympathetic to the socialists? Only
insofar as the socialists were raising urgent issues about industry and labor
even before unions were quite legal nationwide,” Wilentz says. He added,
“I’m proud of [the thesis]… I wasn’t the only one who liked it. She went
on to win the Sachs fellowship to Oxford, which
is about as prestigious a fellowship as Princeton
awards.”

2009 Daily Princetonian report on Kagan’s thesis extensively
quoted Kagan’s college peers saying she wasn’t a political radical. From
a May 15, 2009, Daily Princetonian article:

In light of this speculation, Michael Goldfarb ’02
argued in a blog post last week for The Weekly Standard that it is important to
closely examine Kagan’s undergraduate thesis on socialist movements in early
20th-century New York, saying it indicates political attitudes
“sympathetic to the socialists.”

Several people here at the University who knew her
as an undergraduate, however, said Kagan is not a political radical.

“She’s been called a left-wing crazy for what
she wrote under my direction,” said history professor Sean Wilentz, who
was Kagan’s thesis adviser. “I gather that [the] publicists … of the
conservatives are trying to raise all kinds of bogeymen around her. That is a
mark of how formidable a candidate she would be.”

Calling her “the opposite of an
ideologue,” Wilentz added that he thinks Kagan would be a “very
pragmatic liberal” voice if nominated to the Supreme Court.

“There’s nothing dogmatic about her
approach,” said Steven Bernstein ’81, who worked with Kagan at The Daily
Princetonian, where she served as the editorial chairman of the 104th Managing
Board. He noted especially that “[Kagan's] views on presidential power and
executive power were sometime more in line with Republicans.”

Marc Fisher ’80, one of Kagan’s classmates at the
University and someone who also knew her from her days at Hunter
College High
School in New York, also
emphasized Kagan’s moderate approach during her college years to social issues
like apartheid in South
Africa.

“She was not the kind of person who would get
involved in [anti-apartheid] protests [at Princeton],”
Fisher said. “She could step back and observe. She was not one of the
people who would bang on doors and hold sit-ins.”

Fisher and other classmates also said Kagan was a
thoughtful and studious undergraduate during her years at the University.

“[Kagan] was very deliberate in her thought
process — extremely focused and balanced in her judgments,” Jason Brown
’81 said. “A lot of college kids would start with the conclusion and then
look for the facts to back it up. I didn’t have that sense with Elena.”

Fisher echoed Brown’s sentiment, saying, “She
has always been a very devoted and serious student and someone who’s always had
a purpose about her.”

In 2010, Kagan thesis adviser again said: “Elena Kagan is about
the furthest thing from a socialist. Period. And always had been. Period.”
From a May 3 Daily Princetonian article:

Under Wilentz’s direction, Kagan spent her senior
year conducting research for her thesis on the history of the socialist
movement, which was titled “To the Final Conflict: Socialism in New York City,
1900–1933.” Her thesis has been criticized by her opponents for revealing
sympathies with the Socialist Party and became a source of controversy when she
was a potential nominee for Associate Justice David Souter’s seat on the
Supreme Court last spring — a position which instead went to Sonia Sotomayor
’76 — and when she was nominated for her current position of solicitor general
in January 2009.

“Americans are more likely to speak of a
golden past than of a golden future, of capitalism’s glories than of
socialism’s greatness,” she wrote in her thesis. “Conformity
overrides dissent; the desire to conserve has overwhelmed the urge to alter.
Such a state of affairs cries out for explanation.”

She called the story of the socialist movement’s
demise “a sad but also a chastening one for those who, more than half a
century after socialism’s decline, still wish to change America … In
unity lies their only hope.”

But Wilentz defended Kagan against her critics,
noting that she was adept at removing her personal beliefs from her academic
research on labor and radical history. “Sympathy for the movement of
people who were trying to better their lives isn’t something to look down
on,” he explained. “Studying something doesn’t necessarily mean that
you endorse it. It means you’re into it. That’s what historians do.”

Kagan said in her thesis acknowledgements that her
brother’s “involvement in radical causes led me to explore the history of
American radicalism in the hope of clarifying my own political ideas.”

Yet even if a deeper understanding of the Socialist
movement helped Kagan understand her own beliefs, she did not follow her
brother’s path.

“Elena Kagan is about the furthest thing from
a socialist. Period. And always had been. Period,” Wilentz explained.

Kagan peer: Kagan’s views were “well within the
mainstream” of progressive politics. From a May 3 Daily
Princetonian article:

Like Wilentz, Steven Bernstein ’81, the ‘Prince’
chairman who appointed Kagan to her position, said that Kagan’s remarkable
intellectual capacity made her stand out.

“Elena was an obvious choice for me as
editorial page editor because she formulated her opinions beautifully, even
back then,” he said. “They were very tightly reasoned, clearly
thought-out, fair, forceful, cogent.”

[...]

Bernstein said that he could not recall Kagan
discussing her political affiliations, in spite of the long hours they spent
together — and the long conversations they had — and does not even know if she
was registered to vote. Because of her affiliation with the ‘Prince,’ Kagan was
prohibited from participating in any obvious political displays.

“I don’t remember her participating in
marching, protesting, things like that,” he said. “I would probably describe
her back then — her politics — as progressive and thoughtful but well within
the mainstream of the … sort of liberal, democratic, progressive tradition,
and everything with lower case.”

WSJ criticized Dems for focusing on Alito’s “ancient association”
with group at Princeton. From a
January 12, 2006, Wall Street Journal editorial:

It’s a sign of how little Democrats have on Supreme
Court nominee Samuel Alito that on Day Three of his confirmation hearings they
were still pounding away on his membership in an obscure Princeton
alumni group that flowered briefly at the judge’s alma mater. They can’t touch
him on credentials or his mastery of jurisprudence, so they’re trying to get
him on guilt by ancient association.

Senators Ted Kennedy and Chuck Schumer did their
best yesterday to imply that Judge Alito was racist and sexist by linking the
nominee with the views of some members of Concerned Alumni of Princeton, which
back in the 1970s and 1980s took issue with university policies on coeducation
and affirmative action. The questioning was mean enough that Judge Alito’s wife
left the hearing room after GOP Senator Lindsey Graham apologized for the
comments of his fellow Senators. “Are you really a closet bigot?” Mr.
Graham asked the nominee. “No, sir, you’re not.”

Judge Alito doesn’t recall being a member of CAP,
but says that if he was it must have been because he shared CAP’s concern about
keeping ROTC on campus. For the sin of not recalling, he was then tarred as
dishonest. Senator Kennedy demanded to know whether Judge Alito had read
various articles on CAP that had appeared more than two decades ago, including
an editorial that ran in these columns on January 17, 1985.

Much as we like our own work, even we confess to
having forgotten about that editorial. We’d like to think Senator Kennedy reads
us so assiduously that he knew just where to look, but something tells us his
staff dug it up from our computer archives. But we appreciate the unlikely
plug. (You can find the editorial here.) As for Judge Alito’s prospects, if
this irrelevant arcana is the most his opponents have, he can start measuring
his new judicial robes.

GOP Sen. Allen approvingly quoted WSJ “ancient
association” criticism. From a January 25, 2006, floor
statement by then-Sen. George Allen (R-VA):

Judge Alito was even forced to defend the
statements of others when he was questioned about the Concerned Alumni of
Princeton. That is a group that apparently Judge Alito joined when he was a
member of the Armed Services because he didn’t agree with the way the military
was treated on the Princeton campus. As a
result, some of the Democratic Senators tried to diminish Judge Alito. The Wall
Street Journal had an editorial on January 12 of this year where they said they
are trying to find him guilty by “ancient association.” Let me quote from
the Wall Street Journal editorial page of that date.

They can’t touch him on credentials or his mastery
of jurisprudence, so they’re trying to get him on guilt by ancient association.
Senators TED KENNEDY and CHUCK SCHUMER did their best yesterday to imply that
Judge Alito was racist and sexist by linking the nominee with the views of some
members of Concerned Alumni of Princeton, which back in the 1970s and 1980s
took issue with university policies on coeducation and affirmative action.

Of course, Judge Alito said he didn’t agree with
any of that. He was concerned about fair access for our military recruiters on
campus.

The closing lines in the Wall Street Journal
editorial stated:

As for Judge Alito’s prospects, if this irrelevant
arcania is the most his opponents have, he can start measuring his new judicial
robes.

[TOP]

Myth: Conservatives can credibly argue that Kagan’s
personal and political views are relevant to confirmation process

CLAIM: Kagan’s personal and political views are relevant to
confirmation process. Hannity and Beck have falsely
suggested Kagan’s college thesis shows she is a socialist or radical and that
it is somehow relevant to her nomination. In fact, Kagan’s thesis did not
express support for socialism or radicalism, and regardless, conservatives –
including Hannity — previously said that nominees’ political views are
irrelevant to the confirmation process.

FACT: Hannity: “[T]he nominees’ personal opinions are
irrelevant.” In pushing the false claim that Kagan’s thesis shows
she is a socialist, conservatives have also ignored their own standard that a
nominee’s personal and political views are “irrelevant” to the
confirmation process. For example, on the June 28, 2001, edition of Fox News’ Hannity
& Colmes (accessed via Nexis), Hannity asserted: “But I — but
what bothers me about this — the reason that the Senate has advice and consent
and it doesn’t include an ideological litmus test is because the nominees’
personal opinions are irrelevant, as they’re supposed to set those aside and
rule as a matter of law. And it seems to me that they want to disqualify
anybody because they have an opinion but which they’re supposed to put
aside.”

FACT: Wash.
Times criticized Schumer for
“outrageous rationale for rejecting judicial nominees based on ideology.”
In a July 24, 2001, editorial (accessed via Nexis), The Washington
Times wrote:
“Mr. Schumer lay down what can only be described as an outrageous
rationale for rejecting judicial nominees based on ideology; or, more
specifically, for rejecting nominees for thinking beyond the ‘mainstream’ –
the Democratic ‘mainstream,’ that is, particularly on political flash points
such as abortion and race.”

FACT: Wash.
Times advanced conservative argument that
opposing a nominee on basis of “political views” is “outside the
mainstream of our entire constitutional tradition.” In a June 5,
2001, editorial (accessed via Nexis), the Times quoted Bush
judicial nominee Christopher Cox’s complaint to Sen. Barbara Boxer that she had
“made it clear that you believe it is acceptable to oppose a prospective
judicial nominee on the basis of his or her political views,” but
“this view is outside the mainstream of our entire constitutional
tradition.” The editorial went on to assert: “Once upon a time, this
was the stuff of high school civics courses. Now, U.S. senators such as Mrs. Boxer
and her ideological cohorts on the Judiciary Committee seem to be in dire need
of remedial help.”

FACT: Conservative activist Wendy Long: A nominee’s “personal
and political views are irrelevant.” In an October 3, 2005, CNN
appearance discussing Harriet Miers’ nomination to the Supreme Court (accessed
via Nexis), Wendy Long, legal counsel to the conservative Judicial Confirmation
Network and a former law clerk to Justice Clarence Thomas, said: “[S]he
pretty clearly signals that she shares his [President Bush's] judicial
philosophy. And the key to that is, politics is different from judging. They
will not legislate from the bench. Her personal and political views are irrelevant.
She’s just going to very modestly and strictly interpret the constitution and
laws. It’s a lot of what we heard from John Roberts, but it’s the president’s
judicial philosophy.”

[TOP]

Myth: “Kagan Standard” means Kagan must answer
questions about issues that will come before the Supreme Court

CLAIM: Kagan must abide by her 15-year-old argument that nominees
should answer questions on issues that will come before the Court. Whelan
published a May 3 blog
post titled “The Kagan Standard on the Supreme Court Confirmation
Process.” Whelan wrote: “Given the possibility that President Obama
will nominate Solicitor General Elena Kagan to the Supreme Court, it’s worth
highlighting that Kagan has set forth in writing her carefully considered views
on how the Supreme Court confirmation process ought to proceed.” Whelan
included quotes from a book review Kagan wrote in 1995 on the subject of
judicial confirmations, in which Kagan argued — in the words of the Los
Angeles Times — that nominees should be “forced to say what they
think about disputed issues such as abortion, affirmative action and
privacy.” Neither Whelan nor the Times noted that Republicans
currently on the Senate Judiciary Committee have argued that it would be
improper to require nominees to answer such questions.

REALITY: Roberts and Alito repeatedly refused to answer questions,
and Republicans suggested it would be improper for them to do so.
During their confirmation hearings, both Roberts and Alito repeatedly refused
to answer questions about their opinions on legal issues and other topics. They
often cited the fact that cases involving those issues might come before them
as judges. Republicans currently serving on the Judiciary Committee agreed that
it would be improper for Roberts and Alito to answer such questions. Moreover,
Sen. Orrin Hatch (R-UT) has already suggested that Kagan shouldn’t be held to
the arguments set forth in her book review.

FACT: Roberts repeatedly refused to answer questions during his
confirmation hearing. According to a September 15, 2005, The New
York Times article,
Roberts refused to answer questions on more than 50 occasions.

FACT: Alito also repeatedly refused to answer questions.
During his 2006 hearing, Alito also refused to answer questions on
numerous
occasions.

FACT: Republican senators suggested it would be improper for Roberts
and Alito to answer questions on specific issues that might come before the
Supreme Court.

• Kyl said Roberts
  refusing to answer questions “in ways that could signal how he might
  rule” is “the proper standard.” Before the
  September 22, 2005, vote on Roberts’ nomination to the Supreme Court, Kyl
  stated: “In my opening remarks, I told John Roberts that I would
  defend his position in complying with the canons of judicial ethics, and
  the traditions of the committee not to testify in ways that could signal
  how he might rule on a matter that was likely to come before the court.
  That is the proper standard, he adhered to that standard, and I defend his
  right to do so” (from Nexis).

• Cornyn: “No one
  is entitled to know … how Judge Roberts will rule” on hot-button
  issues. During the September 22, 2005 edition of PBS’ The
  NewsHour with Jim Lehrer, Cornyn stated:
  “I submit that particularly in courts of law, no one — no one is
  entitled to know ahead of time what the outcome will be because the very
  premise of our judicial process is that courts are supposed to be fair and
  listen to both sides, or all sides of an argument. The judges are supposed
  to be disinterested in the outcome, and impartial, and that judges finally
  be independent of the political process. So no one is entitled to know
  what Judge Roberts — how Judge Roberts will rule on these hot-button issues
  of the day. No one is.”

• Hatch:
  “Nominees may not be able to answer questions that seek hints”
  about how they would rule. During the Roberts hearing, Hatch stated:
  “Nominees may not be able to answer questions that seek hints,
  forecasts or previews about how they would rule on particular
  issues.” He later added: “Nominees may not be able to answer
  questions asking them to opine or speculate about hypotheticals outside of
  an actual case with concrete issues and real facts.”

• Grassley: “I’m
  hoping we won’t see a badgering of the nominee about how he’ll rule on …
  possible issues that will or may come before the Supreme Court.” Also
  during the Roberts hearing, Sen. Charles Grassley (R-IA) stated:
  “I’m hoping that we won’t see a badgering of the nominee about how
  he’ll rule on specific cases and possible issues that will or may come
  before the Supreme Court.” Grassley also said, “And let me
  remind my colleagues that Justices Ginsburg and Breyer refused to answer
  questions on how they would rule on cases during their confirmation
  hearings.”

FACT: Hatch has already suggested that Kagan shouldn’t be held to
the arguments in her book review. During the confirmation hearing on
Kagan’s appointment as solicitor general, Hatch discussed Kagan’s article on
what questions a nominee should answer. He said: “If you want to know the
truth, I remember when Judge Bork was here. He has written some outlandish
things from time to time. But he was absolutely brilliant. And he did it more
as an academic, as a teacher. And some on this committee held that against him
very badly. But the fact of the matter is that I don’t — I think it’s good for
teachers to raise all kinds of issues and all — on all sides of cases.”
From the hearing (from Nexis):

HATCH: Well, in your book — in your review of,
Professor, Stephen Carter’s book on the confirmation process, you wrote that
the Senate should ask judicial nominees about their views on constitutional
issues, the direction they would take the court, and even about votes that they
would cast. Now, I’d like…

KAGAN: The — the…

HATCH: Even about votes they would cast. How do you
square this with the principle that judges must be impartial and with the oath
they take to provide justice without respect of persons?

KAGAN: It’s a great question, Senator. And I’m not
sure that, sitting here today, I would agree with that statement.

I was — I was — I wrote that piece after I had
worked on — on this committee. I had the privilege of…

HATCH: If you want to know the truth, I remember
when Judge Bork was here. He has written some outlandish things from time to
time. But he was absolutely brilliant. And he did it more as an academic, as a
teacher. And some on this committee held that against him very badly. But the
fact of the matter is that I don’t — I think it’s good for teachers to raise
all kinds of issues and all — on all sides of cases.

KAGAN: Right. Right.

HATCH: And you’re good at that.

KAGAN: Well, thank you, Senator. I was just going
to say, you know, I wrote that when I was in a position of sitting where the
staff is now sitting, and feeling a little bit frustrated that — that I really
wasn’t understanding completely what the judicial nominee in front of me meant,
and what — what — what she thought.

But I think that you’re exactly right, of course,
that there are other — that — that this has to be a balance. The Senate has
to get the information that it needs, but as well, the nominee for any
particular position, whether it’s judicial or otherwise, has to be protective
of — of certain kinds of interests, and you named the countervailing ones.

HATCH: Let me just say that I may not agree that
Thurgood Marshall was the greatest attorney of the last century, but I agree
with you. He’s one of the greatest. And I have nothing but respect for what he
did for the civil rights community, and the courage that he had in doing that.
And so I think — I just commend you for having had the privilege for working
with him, and others on the Supreme Court who were giants at that time when you
were there. So I think you’ve had some tremendous experiences in your life. And
– and naturally, I respect that.

[TOP]

Myth: Kagan’s Goldman Sachs role taints her nomination

CLAIM: Current SEC charges against Goldman Sachs are somehow
relevant to Kagan’s nomination. On May 7, The Washington Post‘s
Howard Kurtz wrote:
“Elena Kagan was a paid adviser to Goldman Sachs? What could be worse –
being on the offshore risk committee for BP?”

FACT: Kagan was a member of a Goldman Sachs advisory panel that met
once a year and wasn’t involved in investment decisions. USA Today
reported
last month that Kagan served on a Goldman Sachs “panel from 2005 through
2008, when she was dean of Harvard Law School, and received a $10,000 stipend
for her service in 2008, her disclosure forms show.” USA Today
added that the group “met once a year to discuss public policy issues and
was not involved in any investment decisions, Justice Department spokesman
Tracy Schmaler said.”

FACT: USA
Today also reported panel was part of Goldman group that “was not
involved in the conduct being challenged by the SEC.” From the USA
Today article:

The Global Markets Institute, Goldman Sachs’ public
policy research unit, was not involved in the conduct being challenged by the
SEC. The council Kagan served on is a group of outside experts called on to
organize discussions and examine public policy issues. The institute provides
analysis and advice to Goldman Sachs and its clients.

Whelan: Blaming Kagan for alleged Goldman wrongdoing is
“ludicrous.” Even Whelan, a conservative critic of Kagan, noted,
“It would strike me as ludicrous for anyone to suggest that Kagan’s
advisory role on the Goldman Sachs GMI panel had any causal connection to
whatever wrongdoings Goldman Sachs is alleged to have committed.”

[TOP]

Myth: Conservative opposition is based on the substance
of Kagan’s nomination

CLAIM: Conservative opposition to Kagan is based on good-faith,
substantive objections. Media reports have suggested that conservative
opposition to Kagan is rooted in good-faith objections to her judicial
philosophy, often failing to note that conservatives have indicated they will
oppose — for political reasons — anyone Obama nominates. For example, on the
April 25 broadcast of Fox News Sunday, host Chris Wallace did not
challenge Senate Minority Leader Mitch McConnell’s assertion that Republicans
are “going to treat” the eventual nominee “fairly and go through
the process of looking at the record of the individual” (transcript from
the Nexis database).

REALITY: Conservatives signaled they would attack whoever Obama
nominated.

• Kristol
  “endorsed” Kagan but still said Republicans “should
  oppose” her nomination. Responding to Wallace’s suggestion
  on Fox News Sunday that Republicans’ decision about whether and
  how to oppose Obama’s nominee “depends on who the president
  chooses,” Bill Kristol responded: “But not that much, because I
  think, for example, Kagan would be a very respectable choice. But
  nonetheless, I think most Republicans would oppose her and, honestly,
  should oppose her, with respect and with deference to her, you know,
  impressive academic credentials, because she will be a reliable liberal
  vote, and I think Republicans should want to have a serious debate on the
  Constitution.” Despite saying that Republicans “should
  oppose” Kagan in order to spark a “debate,” Kristol went on
  to say that he “endorsed” Kagan. [Fox News Sunday, 4/11/10]

• Conservative
  activist Viguerie signals that conservatives will paint any nominee as
  “radical.” The New York Times reported in an
  April 16 article:

Richard Viguerie, a conservative fund-raiser who is developing direct-mail
and Internet campaigns about the coming nominee, said conservatives relished
the prospect of a fight with Democrats over the Supreme Court before the
November election.

“The more material he gives us to work with, the easier the battle will
be,” Mr. Viguerie said. “The more quickly we can identify that person
as an ideological liberal, the easier it is for us to communicate to the
American people how radical the president is and the nominee is.”

• Torture-memo author
  John Yoo urges Republicans to filibuster whoever Obama nominates.
  University of California law professor John Yoo — who is most famous for
  drafting the so-called “torture memos” — used his May 2 Philadelphia
  Inquirer column
  to urge a filibuster of Kagan, Merrick Garland, or Diane Wood should Obama
  nominate one of them. Yoo wrote that a filibuster “would have little
  to do with these three distinguished lawyers, and everything to do with
  President Obama and his Senate allies.”

• Coulter urges
  “huge court battle” to benefit GOP election hopes. On
  April 12, conservative Ann Coulter said:
  “A huge court battle is fantastic for Republicans. The reason the
  Democrats need the courts to legislate for them is their ideas are heinous
  to the American people. They can’t win in democracy, so they do it through
  the courts. This is always good to have a fight over the courts.”

• Hannity agreed that
  a court battle is good idea “whether you win or lose.”
  In response to Coulter’s statement that “it’s always good to have a
  fight over the courts,” Sean Hannity said:
  “I agree with you — whether you win or lose.”

• National Review:
  “The question for conservatives will be not whether but how to oppose
  Obama’s nominee.” An April 9 National Review editorial
  stated: “We
  know that President Obama will nominate a replacement who is also
  committed to imposing liberal policy outcomes over the objections of
  legislatures and without constitutional warrant. We know because Obama
  told us so, pledging during the campaign to nominate only justices who
  would support constitutionalized abortion.” It later added: “Unless
  Obama provides evidence of having dropped his litmus tests, the question
  for conservatives will be not whether but how to oppose Obama’s
  nominee.”

• Kathleen Parker: In
  public, GOP will “be open-minded”; privately, “they’ll try
  to figure out how to derail the nominee.” During an April 13
  online discussion, Washington Post columnist Kathleen Parker said
  about Republican strategy regarding the Supreme Court: “In public,
  they’ll be open-minded; behind closed doors, they’ll try to figure out how
  to derail the nominee. I hope the president will go moderate on this one.
  I think the nation is suffering battle fatigue and could use a respite. If
  he does, Republicans will have no basis for opposition.”

• Gloria Borger: Some
  conservatives “looking for a fight” over Supreme Court
  nomination to “unite the base.” During the April
  9 edition of CNN Newsroom, senior political analyst Gloria
  Borger stated, “There are conservatives … outside the Senate who
  are looking for a fight, because they believe that this would unite the
  base.”

• Beck: Obama will
  find a “gay. handicapped black woman who’s an immigrant” who’s a
  “radical” justice like Sotomayor. On the April
  9 edition of his radio show, Glenn Beck said of the then-upcoming
  Supreme Court nomination, “[M]ark my words. A radical is
  coming.” He later said: “He’s going to pick another
  radical.” Beck added that if Obama’s “smart,” he’ll
  nominate a “gay, handicapped black woman who’s an immigrant.”

[TOP]

Myth: Obama used “empathy” standard rather than
fealty to law in choosing Kagan

CLAIM: Obama said he is looking for judges who exhibit
“empathy” instead of following the rule of law.
Conservatives have falsely claimed that Obama has said he will pick judges
because of their “empathy” rather than their dedication to the rule
of law and have suggested that Obama’s references to empathy and personal
experience run contrary to conservative judicial thought. For example, an April
9 Daily Caller post stated:

Republicans, who are limited by their minority
status, will aim to gain from the process a platform to argue against judges
that in their view go beyond rendering legal opinions and deliver rulings on
the basis of politics or personal preference rather than the law.

The clearest example of disagreement between the
legal philosophies of Obama, who was a constitutional law professor at the University of Chicago, and conservatives is the
president’s “empathy standard.”

Obama articulated his desire that judges have
“empathy” during the nomination process for Sonia Sotomayor, his
first nominee to the court, who was confirmed last year.

REALITY: Obama — like numerous conservatives — has called for both
empathy and devotion to the law. Obama has said that he seeks nominees
who are dedicated to “the rule of law” and “our constitutional
tradition” and who also exhibit empathy. In the past, numerous
conservatives have touted nominees’ “empathy,”
“compassion,” and personal experience as qualifications, and
conservative nominees have similarly highlighted the role that their life
experiences have played in their judging.

• Obama in 2009:
  “I will seek” a nominee who has the “quality of
  empathy” and “is dedicated to the rule of law.” In
  2009, media fixated
  on a statement Obama made — “I view that quality of empathy, of
  understanding and identifying with people’s hopes and struggles as an
  essential ingredient for arriving at just decisions and outcomes” –
  to push the notion that this statement “aggravates those who believe
  justices should follow the Constitution and legislative intent.” But
  in the very next sentence, Obama stated:
  “I will seek somebody who is dedicated to the rule of law, who honors
  our constitutional traditions, who respects the integrity of the judicial
  process and the appropriate limits of the judicial role.” Obama
  added, “I will seek somebody who shares my respect for constitutional
  values on which this nation was founded, and who brings a thoughtful
  understanding of how to apply them in our time.”

• Obama in 2010:
  “I will seek” nominee who has “a fierce dedication to the
  rule of law, and a keen understanding of how the law affects the daily
  lives of the American people.” In an April 9, 2010,
  statement on the retirement of Supreme Court Justice John Paul Stevens,
  Obama reiterated
  that he would seek someone who has both “a fierce dedication to the
  rule of law” and a “keen understanding of how the law affects
  the daily lives of the American people.” Obama added that he will
  seek a nominee “who, like Justice Stevens, knows that in a democracy,
  powerful interests must not be allowed to drown out the voices of ordinary
  citizens.”

FACT: Alito highlighted the importance of his personal experience. During
his confirmation
hearing in 2006, Justice Samuel Alito highlighted his
compassion for people involved in immigration and discrimination cases and
discussed the importance of his personal experience, saying: “When I get a
case about discrimination, I have to think about people in my own family who
suffered discrimination because of their ethnic background or because of
religion or because of gender. And I do take that into account.”

FACT: Thomas said during his confirmation hearings: “I can walk
in the shoes of the people who are affected by what the Court does.”
Responding to Sen. Herb Kohl’s (D-WI) question during his confirmation hearings
in 1991 about why he wanted to serve on the Supreme Court, Justice Clarence
Thomas stated
in part:

I believe, Senator, that I can make a contribution,
that I can bring something different to the Court, that I can walk in the shoes
of the people who are affected by what the Court does. You know, on my current
court I have occasion to look out the window that faces C Street, and there are
converted buses that bring in the criminal defendants to our criminal justice
system, bus load after bus load. And you look out and you say to yourself, and
I say to myself almost every day, “But for the grace of God there go
I.”

So you feel that you have the same fate, or could
have, as those individuals. So I can walk in their shoes and I could bring
something different to the Court.

FACT: Conservatives have repeatedly expressed support for empathy in
judicial nominees. Conservatives including President George H.W. Bush,
Sen. Kit Bond (R-MO), and Yoo touted Thomas’ “empathy,”
“compassion,” and personal experience as qualifications:

• Bush cited Thomas’
  “great empathy.” Bush cited Thomas’
  “great empathy” in his remarks announcing he was nominating
  Thomas to serve on the Supreme Court.

• Bond cited Thomas’
  “compassion and understanding.” Bond similarly stated:
  “Though his skills as a lawyer and a judge are obvious, they are not,
  in my view, the only reason that this committee should vote to approve
  Judge Thomas’s nomination. Just as important is his compassion and
  understanding of the impact that the Supreme Court has on the lives of
  average Americans.”

• Yoo touted the
  unique perspective that he said Thomas brings to the bench. In
  his review
  of Thomas’ 2007 memoir, My
  Grandfather’s Son (HarperCollins), Yoo touted the
  unique perspective that he said Thomas brings to the bench. Yoo wrote that
  Thomas “is a black man with a much greater range of personal
  experience than most of the upper-class liberals who take potshots at
  him” and argued that Thomas’ work on the court has been influenced by
  his understanding of the less fortunate acquired through personal
  experience.

FACT: Several former Republican senators have cited compassion as a
qualification for judicial confirmation. Several former Republican
senators, including Strom Thurmond (SC), Al D’Amato (NY), and Mike DeWine (OH),
cited compassion as a
qualification for judicial confirmation:

• Thurmond repeatedly
  highlighted importance of “compassion” in Supreme Court
  justices. During the confirmation hearings for Justice Ruth Bader
  Ginsburg, Thurmond stated that “compassion” was one of the
  “special qualifications I believe an individual should possess to
  serve on the Supreme Court,” adding that “[w]hile a nominee must
  be firm in his or her decisions, they should show mercy when
  appropriate.” Similarly, during the confirmation hearings for Justice
  Stephen Breyer, Thurmond said “compassion” was among “the
  special criteria which I believe an individual must possess to serve on
  the Supreme Court.”

• D’Amato cited
  Sotomayor’s “compassion” in supporting her nomination as an
  appellate court judge. During a 1997 Senate Judiciary Committee
  hearing on the confirmation of several judicial nominations, D’Amato
  stated: “I predicted to this committee, almost five years ago, that
  Judge Sotomayor would be an exemplary, outstanding justice. She has
  demonstrated that, repeatedly. She has shown compassion, wisdom, one of
  the great intellects on the court.”

• DeWine wanted
  Roberts to “bring to the court your compassion.” During
  Chief Justice John Roberts’ confirmation hearing, DeWine stated: “We
  need you to bring to the court your compassion and your understanding for
  the lives of others who haven’t been as successful as you have been.”
  DeWine continued: “We need you to bring to the court your strong
  commitment to equal justice for all. And we need you to always remember
  that your decisions will make a real difference in the lives of real people.”

[TOP]

Myth: Kagan is unqualified because she hasn’t been a
judge

CLAIM: Kagan is “unqualified.” In a May 10
article, the right-wing website Newsmax wrote:
“Rush Limbaugh attacked President Obama’s nomination of Elena Kagan for
the Supreme Court, calling her a ‘liberal elitist’ who is unqualified for the court
and has no clue about how ordinary Americans live.”

REALITY: Kagan’s legal experience is comparable to that of
conservative justices, and experts agree that she is qualified for the Supreme
Court. The American Bar Association gave Kagan its highest rating: well qualified.
Justice Antonin Scalia reportedly said that he was “happy to see that this
latest nominee” is “not a judge at all.” Retired Justice Sandra Day O’Connor
said it didn’t matter that
Kagan had not been a judge. In addition, other legal experts and
prominent conservatives reject claims that Kagan isn’t qualified. At least 38
justices — including two of the past four chief justices — had no judicial
experience when they were first nominated for the Supreme Court. And Kagan’s
legal experience is comparable to that of several recent conservative justices
at the time of their nominations: William Rehnquist, Clarence Thomas, and John
Roberts.

FACT: ABA gave Kagan its highest rating: well qualified. The
American Bar Association’s standing committee on the federal judiciary
unanimously (with one abstention) gave Kagan its highest rating: objected to the
fact that Kagan has not previously served as a judge, University of Virginia
government professor emeritus Henry J. Abraham has found that
38 justices — more than a third of the 111 who have served on the Supreme
Court — had no prior judicial experience. Findlaw.com’s Supreme Court Center
similarly reports that 40
justices had no prior judicial experience. Rehnquist
and Earl
Warren — two of the past four chief justices — had never been judges
before their original appointments as Supreme Court justices. Both were
nominated by Republican presidents.

FACT: Seven of the nine Brown v. Board
justices had no prior judicial experience. The nine justices
who unanimously overruled Plessy v. Ferguson and declared that school
segregation was unconstitutional were Earl
Warren, Hugo
Black, Stanley
Reed, Felix
Frankfurter, William
O. Douglas,
Robert Jackson, Harold
Burton, Sherman
Minton, and Tom
Clark. Of them, only Minton and Black had been judges before their Supreme
Court nominations, and Black’s judicial experience consisted of service as a Birmingham, Alabama,
police court judge from 1910-1911.

FACT: Thomas and Roberts had little judicial experience before being
nominated to Supreme Court. Clarence Thomas had served as a
judge for 16 months and John Roberts had served for roughly two
years at the time they were nominated to the Supreme Court by Republican
presidents.

FACT: Kagan’s legal experience is comparable to that of Rehnquist,
Thomas, and Roberts at the time of their nominations. Kagan has 23
years of legal experience (after law school). Rehnquist had 20 years of legal
experience at the time of his nomination. Thomas had 17 years of legal experience
at the time of his nomination. Roberts had 26 years of legal experience at the
time of his nomination. None had served more than two years as a judge.

(See here for the
biographical information used to compile this chart.)

FACT: Scalia said he was “happy to see that this latest nominee” is “not a judge at all.” From a report onABC News transcript of George Stephanopoulos’ interview with O’Connor:

STEPHANOPOULOS: Does it matter if someone hasn’t been a judge before they go to the Supreme Court?

O’CONNOR: I don’t think it does. We’ve had at least a third of the
justices over time were never a judge. I think it’s fine, just fine. If
you … are a scholarly in nature, if you are willing to do all the
reading (LAUGH) and the homework, you’ll be fine. If you can write
well, think well, you’ll be fine.

STEPHANOPOULOS: And from what you’ve seen of Elena Kagan, I know you know her a little bit, do you think she’ll be confirmed?

O’CONNOR: I would think so. She seems to be very well qualified academically.

FACT: Conservative solicitors general have endorsed Kagan. Eight former solicitors general recently signed a letter endorsing Kagan, including several who served under conservative
presidents. The group of signees includes Walter Dellinger, Drew Days, and Seth
Waxman from the Clinton administration; Kenneth W. Starr, of George H.W. Bush’s
administration; and Theodore B. Olson of George W. Bush’s administration. The
former solicitors general join many other conservatives, progressives, legal
experts, and journalists who reported
on April 9 that Charles Fried — solicitor general during the Reagan
administration — “said that he’d support a Kagan pick.” Fried
reportedly said: “She is a supremely intelligent person, really one
of the most intelligent people I have encountered, and I have met a lot of
them, as one does in this business. She is very adroit politically. …
She has quite a strong personality and a winning personality. I think
she’s an effective, powerful person and a very, very intelligent person, and
a very hardworking and serious person.” Fried reportedly added that
Kagan was “not ideological” and advised Republicans to support
her.

• Bush judicial
  nominee Estrada: Kagan is “a rigorous lawyer” who “should
  be confirmed” as the next Supreme Court justice. A May 10 New
  York Times article
  quoted Bush judicial nominee Miguel Estrada endorsing Kagan for Supreme
  Court justice:

“I would think that the president is looking for a bona
fide left-of-center candidate with a progressive personal outlook who is a
rigorous lawyer — and he hit pay dirt,” said Miguel Estrada, who was
nominated to a federal appeals court by President George W. Bush but was never
confirmed. “She’s highly capable and should be confirmed.”

• Fox’s Bream: Kagan
  has a “fantastic resume.” During Fox News’ breaking
  Supreme Court coverage, reporter Shannon Bream predicted
  that “no one will argue anything [against Kagan] but that she is a
  brilliant individual, she’s got a fantastic resume, and she is known to be
  a consensus builder.”

• Fox’s Napolitano:
  Kagan’s “credentials are impeccable.” On the May 10 edition
  of Fox News Radio’s Brian & The Judge, Fox News senior
  judicial analyst Andrew Napolitano said that
  Kagan’s “credentials are impeccable.”

• Fox legal analyst
  Wiehl: Kagan “an absolute gem” with “excellent
  qualifications.” In a May 10 FoxNews.com opinion piece,
  legal analyst Lis Wiehl wrote that
  she found Kagan “to be an absolute gem” and added: “Some
  will question her lack of judicial experience, but that perceived
  prerequis[i]te is relatively new … don’t forget Justice Warren (of the
  Warren court) was never a judge before ascending to the Court. At Harvard,
  she was known as an avid listener, who could get to the heart of the
  matter with a measure of both logical analysis and compassion. Sound like
  excellent qualifications to me.”

• Ken Starr: Kagan is
  “very qualified.” On the May 12
  edition of MSNBC Live, Ken Starr said that Kagan is “very
  qualified.”

FACT: Experts, conservatives, and journalists say judicial
experience is not necessary to be a justice.

• NPR’s Totenberg: The
  “big names in American jurisprudence [are] so often people who came
  to the court with no prior judicial experience.” On the May
  12 broadcast
  of NPR’s Morning Edition, Nina Totenberg said that the “big
  names in American jurisprudence [are] so often people who came to the
  court with no prior judicial experience.”

• Starr: Judicial
  experience is “certainly not necessary”; Kagan is “very
  qualified.” On the May 12
  edition of MSNBC Live, Starr said that judicial experience is
  “certainly not necessary.”
• Napolitano
  explained that judicial experience is not necessary to be a justice.
  On the May 11 edition of
  Fox News’ Fox & Friends, Napolitano explained that judicial
  experience is not necessary to be a justice.

• Scarborough,
  Zuckerman agree: Kagan being outside of judiciary is a
  “strength” and asset. On the May 10
  edition of MSNBC’s Morning Joe, co-host Joe Scarborough and guest
  Mort Zuckerman agreed that Kagan being outside of the judiciary is a
  “strength” and an asset.

FACT: Justice Scalia reportedly “likes” Kagan and her performance in Citizens United oral argument. Scalia reportedly said that he “like[d]” Kagan’s first Supreme Court oral argument. From a December 22, 2009 NPR article:

[Kagan] knew she likely had a losing hand, and was grim about it in
private. But when she faced the court, she cheerfully sparred with the
justices, seeming to relish the experience and bluntly telling them
that over the past century, the court had never before questioned the
ban on corporate spending for candidate elections.

Justice Antonin Scalia replied that the court may never have
questioned the ban, but it had never approved it, either. Congress, he
suggested, is too self-interested to be trusted on the matter.

“I doubt that one can expect a body of incumbents to draw election
restrictions that do not favor incumbents,” he said, to which Kagan
said he was simply “wrong.”

In fact, Kagan said, corporate and union moneys go overwhelmingly to
incumbents, so limiting that money, as Congress did in the campaign
finance law, “may be the single most self-denying thing that Congress
has ever done.”

Scalia likes that kind of push back, and he likes Kagan: “That’s
what’s supposed to happen,” he said in an interview. “The reason you
ask the question is to see if there’s a decent answer to it.” [emphasis
added]

FACT: Kagan’s oral arguments as SG have also drawn praise
from legal commentator Stuart Taylor and legal expert Lawrence Lessig. On the May 11 edition of Imus in the Morning, Stuart Taylor, Jr., senior fellow at the Brookings Institution, rebutted critics of Kagan’s solicitor general performance:

IMUS: How has she done when she argued herself?

TAYLOR: I heard people dissed her but I saw her, I thought she did
fine. You know, she’s smart, she’s direct. She doesn’t back off, Chief
Justice Roberts, for whatever reason has been, you know, kind of hard
on her. And now, he’s bored in on her pretty hard challenging her
positions, and she goes right back at him. She doesn’t say, oh, I’m
sorry, Mr. Chief justice, you must be right. She says, you know, I’m
right, here’s why I’m right. And I think Scalia, for example, and she
seemed to have developed a nice relationship across the bench with a
little human thrown in which is always welcome.

IMUS: People have disparaged her on what basis?

TAYLOR: I have heard some Supreme Court litigators say that she –
they don’t think that she’s not been particularly stellar. I’ve heard
one, you know, challenge the strategy she took in the big citizens and
united case, she didn’t defend the rationale, the president at the
court went onto overrule, she kind of gave other reasons. But, that is
all kind of I think Monday morning quarterbacking and it’s done by some
smart people. But I don’t think it means all that much and, certainly,
it doesn’t have a lot to say about what kind of a justice she’ll be.
[retrieved from the Nexis database]

In an April 26 article on The Huffington Post,
legal expert Lawrence Lessig praised Kagan’s “directness” with Supreme
Court justices as “extremely rare for a Solicitor General”:

Kagan can see a fight; if she can see a path through that fight,
keeping her position in tact, she can execute on it. And even when a
victory is obviously not in the cards, she will engage the other side
boldly. It is extremely rare for a Solicitor General to tell a justice
he is wrong (as Kagan did to Scalia in the argument in Citizens
United). But for those of us who know her, that flash of directness and
courage was perfectly in character for this woman who knows what she
wants, and how to get it.

In a line: She marries the brilliance and strength of the very best
Justices, a practical skill not of compromise but argument, and deep
experience inside the executive branch. It is a broad base of
experience, producing an understanding of what is possible, and skill
to produce what is right.

[TOP]

Myth: Kagan has said judicial experience is an
“apparent necessity”

CLAIM: Kagan “flunk[ed]” her own criteria that a nominee
has “master[ed] the ‘craft’ aspects of being a judge.” In a
May 3 post,
Ed Whelan wrote that “Elena Kagan would seem to flunk the ‘threshold’ test
that she set forth for Supreme Court nominees. In particular, she seemed to put
a much higher premium on the value — indeed, the apparent necessity — of
previous judicial experience than those who now promote her candidacy.”
After including an excerpt from an article Kagan wrote, Whelan stated: “I
don’t doubt Kagan’s ‘skills’ and ‘aptitude,’ but I see nothing in her record
that indicates that she has ‘master[ed] the ‘craft’ aspects of being a judge.’
” Likewise, in a May 10 MSNBC appearance,
Whelan claimed, “The best training for the Supreme Court is judicial
experience. Elena Kagan herself said as much in a law review article she wrote
15 or so years ago.”

REALITY: Kagan specifically stated that judicial service isn’t
necessary. Whelan has since apologized for misrepresenting
Kagan’s quote. Kagan actually wrote that a judicial nominee must demonstrate
the “ability … to master the ‘craft’ aspect of being a
judge.” Indeed, in the same paragraph from which Whelan quoted, Kagan made
clear that judicial experience is not required. Kagan said
she believes a nominee may instead “demonstrate the requisite intelligence
and legal ability through academic scholarship, the practice of law, or
governmental service of some other kind.” Kagan has served as an academic,
practiced law before the Supreme Court as solicitor general, and served in government
both as solicitor general and a policy adviser to Clinton.

FACT: Whelan later apologized for his false claim. In a May
12 post, Whelan wrote:

In a post
last week, I stated that Elena Kagan, in a book review on the Supreme Court
confirmation process, “seemed to put a much higher premium on the value –
indeed, the apparent necessity — of previous judicial experience than those
who now promote her candidacy.” I’m embarrassed to say that I somehow
missed a previous passage from the very paragraph that I quoted in which Kagan
makes clear her view that a nominee need not have previous judicial experience
but may instead “demonstrate the requisite intelligence and legal ability
through academic scholarship, the practice of law, or governmental service of
some other kind.” My apologies for the error.

FACT: Kagan has written or signed off on dozens of Supreme Court
briefs as solicitor general. Kagan wrote or signed off on dozens of
Supreme Court briefs as solicitor general in 2009
and 2010.

FACT: Solicitor general is known as the “tenth justice.”
As The New York Times reported,
author Lincoln Caplan said that being the solicitor general is exceptionally
good preparation to become a Supreme Court justice:

On the other hand, service as solicitor general, or
S.G., is exceptionally good preparation for a job as a justice, said Lincoln
Caplan, the author of “The Tenth Justice: The Solicitor General and the
Rule of Law.”

“The S.G.’s office reads the Supreme Court,
both its personnel and its opinions, as closely as anyone in the
universe,” Mr. Caplan said.

The office’s approach is, moreover, a practical
one, aimed at capturing the votes of a majority of the nine justices. “The
S.G. learns to count to five,” he said.

FACT: Legal experts agreed that Kagan had the skills to be superb
solicitor general. Legal luminaries, including all of the people who
served as solicitors general from 1985-2009, six former assistant solicitors
general, the NAACP Legal Defense and Education Fund president and
director-counsel John Payton, former Bush administration White House counsel
Bradford Berenson, Harvard Law professors Charles Fried and Laurence Tribe, and
many others supported
Kagan’s nomination to be solicitor general, and said she would be
outstanding in that role.

FACT: Kagan spent years as constitutional law professor.
According to her biographical information on the Office of the Solicitor
General website,
Kagan taught constitutional law while on the faculty at Harvard University.

FACT: Kagan clerked for Thurgood Marshall. Kagan clerked
for Justice Thurgood Marshall in 1988.

[TOP]

Myth: Republicans would be justified in opposing Kagan
because she lacks a judicial paper trail

CLAIM: Kagan “lacks the judicial record that would enable”
Republicans on Senate Judiciary Committee “to have a vigorous debate about
the law” and would therefore be controversial. From an April 9
Daily Caller article:

Senate Judiciary Republicans indicated Friday that
if President Obama nominates Solicitor General Elena Kagan to replace Supreme
Court Justice John Paul Stevens, he will have a fight on his hands. Multiple
sources told The Daily Caller that Kagan lacks the judicial record that would
enable them to have a vigorous debate about the law, and that of the three
people most likely to be nominated, she is the least desirable.

“A record like hers is harder to nail down
than, say, a judge who has lots of opinions,” one Republican staffer on
the Senate Judiciary Committee said. “The debate is, or should be, really
about the criteria.”

FACT: Conservative groups immediately embraced Roberts despite the
lack of public information on his views on controversial issues. The
Washington Post reported on July 23, 2005: “Although little may be
known about Roberts’s specific views, conservative groups have embraced him as
one of their own” (from Nexis). Additionally, a July 21, 2005, The New
York Times article
reported:

In recent years, Judge Roberts has left little in
the way of a paper trail on the abortion issue, in legal writings or public
speeches, which heightens the focus on his work as a deputy solicitor general.
Abortion rights groups are trying to highlight those years, suggesting that
President Bush has found an appealing ”stealth” nominee with a hidden agenda.

”They want to pass it off that he was just a
lawyer, a mouthpiece,” said Eleanor Smeal, the president of Feminist Majority.
”But he was more than that.”

Nancy Keenan, president of Naral Pro-Choice
America, added: ”There’s a record of clear legal activism. They trusted him to
write the briefs.”

A measure of that trust, some Democratic and
liberal strategists said, was the striking approval of the Roberts nomination
by social conservatives and abortion opponents, in contrast to their reaction
to the potential nomination of Attorney General Alberto R. Gonzales.

[...]

Leading social conservatives said they were pleased
with the selection. Dr. James Dobson, the founder of Focus on the Family, told
reporters, ”I don’t think there is any evidence that he is going to be another
Souter,” alluding to Justice David H. Souter, a Republican appointee whose
rulings have disappointed conservatives.

An e-mail message to supporters of the Christian
conservative group American Family Association offered reassurance that Judge
Roberts’s deference to Roe as established precedent during his appellate
confirmation hearing should not be held against him.

[TOP]

Myth: Kagan is “Obama’s Harriet Miers”

CLAIM: Kagan is possibly “[t]he next Harriet Miers” in
that she has never served as a judge and has a “thin legal paper
trail.” Various media
figures have likened Kagan to Harriet Miers, President Bush’s failed
nominee. For example, Fox News’ Monica Crowley said that Miers’
nomination “did not survive” and “one of the main reasons was
because she had never served as a judge.” Crowley added: “There was no paper
trail. We have no idea what her governing legal philosophy was. I think the
same criticisms hold true for Elena Kagan.”

FACT: Legal experts reject comparison. Numerous legal
experts have rejected the comparison, saying it is “inapt” and that
Kagan “is no Miers” and “couldn’t be farther” from her.

• Attorney Floyd
  “dispose[s] of the Harriet Miers analogy once and for all.”
  On the May 12 edition of Fox News’ Fox & Friends, attorney
  Jamie Floyd said
  the analogy is “entirely unfair,” saying: “Harriet Miers,
  with all due respect, was a functionary. This woman [Kagan] is a brilliant
  scholar. … Then, in terms of whether or not she’s had a real job,
  solicitor general is indeed a real job. It’s one of the heaviest jobs you
  can carry.” She then noted: “In the history of the court, there
  have been 40-some judges who have not been — justices who have not been
  judges before, and some of the best justices have not been judges
  before.”

• Meltzer says of
  comparison: “I think that’s so easy and unfair.” On the
  May 12 Fox & Friends, best-selling author Brad Meltzer stated that
  the comparison is “easy and unfair,” going on to say that
  “solicitor general is not a political-favor job. That’s a job you
  give to the smartest person around, and that’s why you see the other
  solicitor generals like her so much.”

• Manhattan Institute
  legal blog rejected the comparison as unreasonable. In a May 10 post,
  Manhattan Institute adjunct fellow Ted Frank wrote: “It’s fair to say
  that Kagan’s academic record isn’t especially distinguished, but there’s
  much more there there than there was with Miers. Kagan has held government
  positions where real legal thinking was required and a much better resume
  than Miers. (Update: Eugene Volokh makes a good case that Kagan’s academic
  publishing record is above average. I’m persuaded.)”

• Cohen: “Kagan
  is no Miers.” In a May 9 Politics Daily column,
  legal analyst Andrew Cohen wrote that “[d]espite [her] background, or
  perhaps because of it, Kagan will continue to be compared by some
  conservatives to Harriet Miers, the former White House counsel for
  President George W. Bush who became a failed Court nominee after just a
  few weeks.” He added: “But Kagan is no Miers, who failed to get
  the job in part because she was notably unimpressive about constitutional
  law during her private round of meetings with senators.”

• Aron: “She
  couldn’t be farther from Harriet Miers.” On the May 7
  broadcast of Fox News’ Special Report (accessed via Nexis), Nan
  Aron, president of the Alliance
  for Justice, stated, “She couldn’t be farther from Harriet Miers in
  my view. She has stellar academic and professional qualifications.”

FACT: Legal experts say Kagan is “better compared with”
Chief Justice Roberts. Legal experts have said that Kagan more closely
mirrors Chief Justice John Roberts rather than Miers.

• Cohen: Kagan is
  “better compared with” Roberts. In his May 9 column,
  Cohen wrote: “Kagan is perhaps better compared with the man with whom
  she would likely serve out the rest of her career; Chief Justice John G.
  Roberts Jr., who was at least as conservative when he was confirmed as
  Kagan’s liberal supporters hope she turns out to be down the road.”

• University of Pennsylvania law
  professor: Kagan is “like Justice John Roberts” in that
  “she’s universally respected but hasn’t written on divisive
  topics.” On April 9, The Huffington Post reported
  that University of Pennsylvania law professor Theodore Ruger stated that
  “Kagan is unique in that, like Justice John Roberts, she’s
  universally respected but hasn’t written on divisive topics that could
  make confirmation difficult.”

FACT: Kagan’s legal experience is comparable to conservative
justices. As legal scholars have noted,
at least 38 justices had no judicial experience prior to being nominated for
the Supreme Court; moreover, when Justices Clarence Thomas and Roberts were
nominated, they had little judicial experience.

• At least 38 justices
  — including Rehnquist — had no judicial experience before being
  nominated to the Supreme Court. While right-wing media have
  objected to the fact that Kagan has not previously served as a judge, University of Virginia government professor
  emeritus Henry J. Abraham has found
  that 38 justices — more than a third of the 111 who have served on the
  Supreme Court — had no prior judicial experience. William
  Rehnquist and Earl
  Warren — two of the past four chief justices — had never been judges
  before their original appointments as justices. Both were nominated by
  Republican presidents.

• Thomas and Roberts
  had little judicial experience before being nominated to Supreme Court.
  Clarence Thomas had served as
  a judge for 16 months, and John Roberts had served for roughly two
  years at the time they were nominated to the Supreme Court by
  Republican presidents.

• Kagan’s legal
  experience is comparable to that of Rehnquist, Thomas, and Roberts at the
  time of their nominations. Kagan has 23 years of legal experience
  (after law school). Rehnquist had 20 years of legal experience at the time
  of his nomination. Thomas had 17 years of legal experience at the time of
  his nomination. Roberts had 26 years of legal experience at the time of
  his nomination. None had served more than two years as a judge.

FACT: Many conservatives, including legal experts, have endorsed
Kagan as qualified. Many conservative legal experts and journalists
have endorsed Kagan or praised her qualifications. Those conservatives include
former Reagan Solicitor General Charles
Fried, Bush judicial nominee Miguel
Estrada, George H.W. Bush Solicitor General Ken Starr, and
former Bush Justice Department official and D.C. Circuit nominee Peter
Keisler. In addition, Fox News legal analysts Judge Andrew Napolitano
and Lis Wiehl, and
Fox legal correspondent Shannon
Bream have all praised her qualifications.

FACT: Conservatives previously smeared Sotomayor as “Obama’s
Harriet Miers.” During Justice Sonia Sotomayor’s nomination,
conservatives also smeared her as “Obama’s Harriet Miers.”

• Levey: Sotomayor is
  like Harriet Miers because she is an “intellectual lightweight”
  who was “picked because she was a woman.” As Think
  Progress noted,
  Curt Levey, executive director of the right-wing Committee for Justice,
  compared Sotomayor to Miers:

I would point you to the Harriet Miers nomination
under the second President Bush. She was also many people felt and intellectual
lightweight, picked because she was a woman, people felt. And even though
Republicans controlled the senate, she ultimately had to withdraw. And that
could happen here. This is someone who clearly was picked because she’s a woman
and Hispanic, not because she was the best qualified. I could certainly see red
and purple state Democrats gawking at it and she may very well have to withdraw
her nomination.

• Ponnuru called
  Sotomayor “Obama’s Harriet Miers.” As Think Progress
  also noted, National Review Online’s Ramesh Ponnuru’s “quick
  take” on Sotomayor’s nomination was that she was “Obama’s
  Harriet Miers.”

[TOP]

Myth: Kagan’s record shows that she will rubber-stamp
war on terror policies

CLAIM: Kagan’s actions as solicitor general and an article she wrote
as a professor show that she will give great deference to the president on
national security issues. Referring to a law-review article
written by Kagan and her record as solicitor general, Whelan wrote
that a New York Times article presents concerns “Kagan ‘may lean
too far toward the middle.’ Those concerns (and the corresponding hopes from
some conservatives) may well be warranted on national-security issues and
executive power more generally.” Politico‘s Mike Allen has also suggested
that Kagan may be attacked for being too deferential to presidential power on
national security issues.

REALITY: Kagan’s article dealt with domestic issues, not national
security, and her actions as solicitor general do not show that she would take
an expansive view of the president’s national security powers. Kagan’s
article dealt with a president’s power to direct administrative agencies and
did not claim, as the Bush administration had, that the president had inherent
power to act unilaterally on national security matters. Furthermore, Kagan’s
arguments in favor of the government’s national security positions as solicitor
general do not indicate that she would take an expansive view of the
president’s national security powers as a Supreme Court justice. As she has
stated, her duty as solicitor general was to represent the federal government
in court and defend federal laws whether or not she agreed with them. As a
justice, her role would be to decide whether the federal government’s actions
are justified under the Constitution and federal laws.

FACT: In her article on “presidential administration,”
Kagan dealt with a president’s power to control the executive branch
bureaucracy. Kagan’s article dealt
with “the presidentialization of administration — the emergence of
enhanced methods of presidential control over the regulatory state.” She
summed up her views as follows:

I have argued here that this development, within
broad but certain limits, both satisfies legal requirements and promotes the
values of administrative accountability and effectiveness. Presidential
administration as most recently practiced — including, most controversially,
the use of directive authority over executive branch agencies — comports with
law not because, as some have claimed, the Constitution commands straight-line
control of the administrative state, but because, contrary to prevailing
wisdom, Congress generally has declined to preclude the President from
controlling administration in this manner.

FACT: In her article, Kagan did not even mention president’s war
powers or national security powers. At no point during her article did
Kagan even discuss the president’s national security or war powers.

FACT: In her article, Kagan specifically rejected the “unitary
executive” concept that Congress cannot limit a president’s power.
In her article, Kagan specifically rejected the “unitary executive”
that former Vice President Dick Cheney’s aide David
Addington, “torture memo” author John
Yoo, and others in the Bush administration advanced in order to justify
their national security agenda in the absence of — or even in contravention of
– statutory direction from Congress. Kagan wrote:
“I accept here the rudiments of the constitutional argument; more
specifically, unlike the unitarians, I acknowledge that Congress generally may
grant discretion to agency officials alone and that when Congress has done so,
the President must respect the limits of this delegation.” Kagan also wrote:

The unitarians would defend the practice simply by
insisting, against the weight of precedent, that the Constitution provides the
President with plenary authority over administration, so that Congress can no
more interfere with the President’s directive authority than with his removal
power. I too defend the practice, but not on this basis. I accept Congress’s
broad power to insulate administrative activity from the President, but argue
here that Congress has left more power in presidential hands than generally is
recognized. More particularly, I argue that a statutory delegation to an
executive agency official — although not to an independent agency head –
usually should be read as allowing the President to assert directive authority,
as Clinton did,
over the exercise of the delegated discretion.

FACT: Kagan stated that as solicitor general, she would defend
federal laws and actions as long as there was a reasonable basis for them.
In response to a written question from Sen. Charles Grassley (R-IA), Kagan stated:
“As Solicitor General, my function would be to advance the interests of
the United States, and the interests of the United States call for the defense
of federal statutes against constitutional challenge whenever there is a
reasonable basis for doing so.”

FACT: As a justice, Kagan’s role would be to decide whether a
government action was legal, not whether there was a reasonable basis for it.
The Supreme Court, of course, often disagrees with the solicitor general’s
defense of the federal government’s actions, as it did in numerous national
security cases during the Bush administration, including in the 2004 cases of Hamdi
v. Rumsfeld and Rasul
v. Bush, the 2006 case of Hamdan
v. Rumsfeld, and the 2008 case of Boumediene
v. Bush.

[TOP]

Myth: Kagan’s 23-year-old statements about the
Establishment Clause suggest she’s hostile to religion

CLAIM: Kagan’s stance on the Establishment Clause could allow for
discrimination against religious organizations. Days prior to Kagan’s
solicitor general confirmation hearing, Whelan cited
as a cause for concern an October 22, 1987, memo “that Kagan wrote as a
law clerk to Justice Thurgood Marshall” in which she supported a district
court ruling “that the inclusion of religious organizations” in the
Adolescent Family Life Act “violated the Establishment Clause.” Whelan
said of Kagan’s 1987 memo: “If Kagan’s current Establishment Clause views
are anything like they were two decades ago, they ought to set off alarm bells
for those who recognize that the Establishment Clause should not be misused to
discriminate against religious organizations.” An April 24 WorldNetDaily article
cited Whelan’s 2009 blog post as evidence of Kagan’s supposed radical agenda.

REALITY: Kagan has disavowed the 23-year-old memo — just like
conservative nominees disavowed controversial statements from earlier in their
careers. During her confirmation hearing for solicitor general — two
days after Whelan’s blog post but more than a year before the WorldNetDaily
article — Sen. Arlen Specter asked
Kagan about her 1987 memorandum. Kagan replied, in part, “Well, Senator,
thank you for raising that memo. I — I — I first looked at that memo, thought
about memo for the first time in 20 years I suppose just a couple of days ago
when it was quoted on a blog post. And I looked at it and I — I thought, ‘That
is the dumbest thing I’ve ever heard.’ ” Specter then told Kagan,
“You don’t have to go any further.” Following her hearing, Sen. Jeff
Sessions asked her to follow
up on her response, since “time constraints and further questioning
did not allow your explanation.” Kagan wrote:

I indeed believe that my 22-year-old analysis,
written for Justice Marshall, was deeply mistaken. It seems now utterly wrong
to me to say that religious organizations generally should be precluded from
receiving funds for providing the kinds of services contemplated by the
Adolescent Family Life Act. I instead agree with the Bowen Court’s
statement that “[t]he facially neutral projects authorized by the
AFLA-including pregnancy testing, adoption counseling and referral services,
prenatal and postnatal care, educational services, residential care, child
care, consumer education, etc. — are not themselves ‘specifically religious
activities,’ and they are not converted into such activities by the fact that
they are carried out by organizations with religious affiliations.” As
that Court recognized, the use of a grant in a particular way by a particular
religious organization might constitute a violation of the Establishment Clause
– for example, if the organization used the grant to fund what the Court
called “specifically religious activity.” But I think it incorrect
(or, as I more colorfully said at the hearing, “the dumbest thing I ever
heard”) essentially to presume that a religious organization will use a
grant of this kind in an impermissible manner.

FACT: Rehnquist walked back his memo supporting Plessy v.
Ferguson. As The New York Times reported,
“In 1971, Newsweek magazine revealed that in 1952, Mr. Rehnquist, then a
law clerk to Justice Robert H. Jackson, prepared a memorandum called ‘A Random
Thought on the Segregation Cases.’ It was written in the first person and bore
Mr. Rehnquist’s initials. It urged Justice Jackson to reject arguments made by
lawyers in Brown v. Board of Education, the landmark school desegregation case,
and to uphold Plessy v. Ferguson,
the 1896 Supreme Court decision holding that ‘separate but equal’ facilities
were constitutional. Mr. Rehnquist wrote, ‘I realize that this is an unpopular
and unhumanitarian position for which I have been excoriated by ‘liberal’
colleagues, but I think Plessy v. Ferguson
was right and should be re-affirmed.’ ” The Times further
explained that “17 years later Mr. Rehnquist’s memo created a storm. As
opposition to Mr. Rehnquist mounted during the Senate debates, he submitted a
letter to the chairman of the judiciary committee. ‘I believe that the
memorandum was prepared by me as a statement of Justice Jackson’s tentative
views for his own use,’ Mr. Rehnquist wrote.” During his 1986 confirmation
hearings, Rehnquist repeated his statement that “the bald statement that
Plessy was right and should be reaffirmed was not an accurate reflection of my
own views at the time.”

FACT: Roberts disavowed statements about the “so-called right
to privacy” in the Constitution. During his 2005 Supreme Court
confirmation hearing, Specter asked about a 1981 memo Roberts wrote to
then-Attorney General William French Smith, in which Roberts referenced
“the so-called right to privacy” in the Constitution. Specter asked
Roberts: “Do you believe today that the right to privacy does exist in the
Constitution.” Roberts replied, “Senator, I do. The right to privacy
is protected under the Constitution in various ways.” From the hearing:

SPECTER: Judge Roberts, the change in positions
have been frequently noted. Early on, in one of your memoranda, you had made a
comment on the “so-called right to privacy.”

SPECTER: This was a 1981 memo to Attorney General
Smith, December 11th, 1981. You were referring to a lecture which Solicitor
General Griswold had given six years earlier and you wrote, quote, that,
“Solicitor General Griswold devotes a section to the so-called right to
privacy; acquiring, as we have — that such an amorphous arguing, as we have,
that such an amorphous right was not to be found in the Constitution.”

Do you believe today that the right to privacy does
exist in the Constitution?

ROBERTS: Senator, I do. The right to privacy is
protected under the Constitution in various ways.

It’s protected by the Fourth Amendment which
provides that the right of people to be secure in their persons, houses,
effects and papers is protected.

It’s protected under the First Amendment dealing
with prohibition on establishment of a religion and guarantee of free exercise.

It protects privacy in matters of conscience.

It was protected by the framers in areas that were
of particular concern to them. It may not seem so significant today: the Third
Amendment, protecting their homes against the quartering of troops.

And in addition, the court has — it was a series
of decisions going back 80 years — has recognized that personal privacy is a
component of the liberty protected by the due process clause.

The court has explained that the liberty protected
is not limited to freedom from physical restraint and that it’s protected not
simply procedurally, but as a substantive matter as well.

And those decisions have sketched out, over a
period of 80 years, certain aspects of privacy that are protected as part of
the liberty in the due process clause under the Constitution.

SPECTER: So that the views that you expressed back
in 1981, raising an issue about “amorphous” and
“so-called,” would not be the views you’d express today?

ROBERTS: Those views reflected the dean’s speech.
If you read his speech, he’s quite skeptical of that right. I knew the attorney
general was. And I was transmitting the dean’s speech to the attorney general,
but my views today are as I’ve just stated them.

SPECTER: OK.

So they weren’t necessarily your views then, but
they certainly aren’t your views now?

ROBERTS: I think that’s fair, yes.

[TOP]

Myth: Kagan’s recusal obligations would be
“extraordinary”

CLAIM: Kagan “would face extraordinary recusal
obligations” if she became a Supreme Court Justice. Whelan claimed
that
“if she were to make the transition from SG to the Supreme Court, Kagan
would face extraordinary recusal obligations during her initial two or three
years on the Court.”

REALITY: Kagan’s recusal obligations would not be unusual.
According to Supreme
Court expert and SCOTUSblog writer Tom Goldstein, Kagan would likely
have fewer recusals than Thurgood Marshall, the last solicitor general to
become a Supreme Court justice, and no more recusals than Justices Clarence
Thomas or Thomas Clark. Moreover, Goldstein wrote that Kagan would not have to
recuse herself from a substantial number of cases after her first year on the bench.

FACT: Supreme Court expert: As a Supreme Court justice, Marshall
recused himself from dozens of cases; Kagan would have “far fewer
recusals” Goldstein noted that Marshall recused himself from 57
cases due to his role as the solicitor general — and more than 75 in
total, due to other reasons. According to Goldstein, “Kagan would have far
fewer recusals” than Marshall:

In no particular order, Kagan would have far fewer
recusals principally because (i) she would be appointed earlier in the year,
(ii) the Court’s docket has fewer merits cases with the United States as a party, and (iii) a
substantial amount of the time Marshall
recused for reasons other than his service as Solicitor General.

[...]

The best estimate is that in her first Term, Kagan
would recuse from 13 cases.

[...]

Beyond the numbers, Kagan’s recusal would likely
implicate only one arguably significant issue — the government’s litigation
against tobacco companies.

Goldstein also noted that Kagan might have to recuse herself from Guantanamo detainee
cases: “I don’t know but think that, depending on the precise case, it is
possible that Kagan would recuse from some detainee-related matters, if they
came to the Court.”

FACT: Supreme Court expert: Kagan’s recusal level “would be
roughly equal to (or lower than) Justices Thomas and Clark.” According
to Goldstein, if she became a Supreme Court justice, Kagan’s level of
nonparticipation “would be roughly equal to (or lower than) Justices
[Clarence] Thomas and [Thomas] Clark. It would
therefore not seem to be a significant basis for not appointing Kagan.” A SCOTUSblog
chart of recusals by first-term Supreme Court justices:

FACT: Supreme Court expert: Kagan’s recusal obligations would not be
significant in her second and third term. According
to Goldstein, “commentators have assumed that Kagan’s recusal obligations
would continue to be very substantial for two to three years. That is not
correct.” Goldstein noted, “In his second Term, Marshall recused from 8 cases because he
served as Solicitor General. The number for Kagan would likely be 5.” He
later added, “Absent an unusual circumstance, the greatest body of cases
triggering recusal — those in which Kagan actually participated in the Supreme
Court as the Solicitor General — would all be finalized during the upcoming
Term. After that, her recusal would be triggered by cases in which she had the
approval role, discussed above, which arrive at the Supreme Court far less
frequently.”

[TOP]

Myth: Kagan “can become” too “emotionally
involved on issues she deeply cares about”

CLAIM: Kagan’s “record shows that she can become emotionally
involved on issues she deeply cares about.” In his May 9
“Playbook,” Politico‘s Mike Allen claimed
Kagan’s “critics will say” that “her record shows that she can
become emotionally involved on issues she deeply cares about,” a
completely baseless accusation.

REALITY: Baseless “emotional” smear is a tired gender
stereotype often used to attack women. Many prominent female figures
have been attacked by invoking the stereotype that women are too emotional.

FACT: The Handbook of Social Psychology
lists as one “gender stereotype” that “women are (too)
emotional.” The
Handbook of Social Psychology — edited by Daniel T. Gilbert, Susan T.
Fiske, and Gardner Lindzey and described
by its publisher as “the standard professional reference for the field of
social psychology for many years” — cites
being too “emotional” as a gender stereotype applied to women:
“In addition, the content of gender stereotypes is heavily prescriptive –
that is, telling how men and women should behave. Men should be competent;
women should be nice. Other gender stereotype content is more descriptive: Men
are (too) aggressive; women are (too) emotional” [Page 378].

FACT: Sotomayor’s intellect and temperament were attacked using
gender and racial stereotypes. As Media Matters noted,
Supreme Court Justice Sonia Sotomayor’s critics frequently employed gender and
racial stereotypes in attacking her temperament and intellect. Conservative
media figures and others would attack Sotomayor as being an “angry”
justice who is a “bully” and “not that intelligent,” which
many argued reflected negative stereotypes about women and Latinos.

FACT: Pelosi’s judgment was attacked as being “based on
emotions and not good sense.” Following Democratic victories in
2006 that paved the way for Nancy Pelosi to become the first female speaker of
the House, many media figures trotted out tired, gender-based stereotypes in
discussing Pelosi’s judgment and leadership. For instance, as Media Matters
noted, CNN
political analyst Bay Buchanan asserted that Pelosi’s “judgment is based
on emotions and not good sense.”

FACT: During presidential campaign, media diagnosed Clinton with “mood swings,”
depression and “multiple personality disorder.” As Media
Matters documented,
during the 2008 presidential campaign, Hillary Clinton was often the subject
of sexist
attacks and commentary,
with members of the media asserting that she displayed “mood swings,”
“could be depressed,” “[r]esembl[ed] someone with multiple
personality disorder,” and “has turned into Sybil,” an apparent
reference to a book
and movie
about a woman who developed multiple personality disorder after being severely
abused as a child.

[TOP]

Myth: Kagan not “fair-minded, impartial” and
doesn’t have “proper temperament to be a judge”

CLAIM: Kagan does not have “the proper temperament to be a
judge” and her record is “not of a fair-minded, impartial
judge.” Mike Allen also wrote
that “critics will say” that “there is nothing in [Kagan's]
record to suggest she has the proper temperament to be a judge. … Her record
is one of an advocate and an activist, not of a fair-minded, impartial
judge.”

REALITY: Kagan has been widely praised by conservatives and legal
experts for her “fair-minded” temperament. Numerous
conservatives and legal experts have praised Kagan’s “fair-minded
consideration” of all viewpoints and the respect with which she treats
those with whom she disagrees.

FACT: Hayes: “Kagan treats conservative arguments with
respect.” On the May 7 edition of Special Report, Steve
Hayes praised Kagan’s fair-mindedness and intellect, saying, “She is, by
all accounts from people who have dealt with her personally and intellectually,
someone who can make convincing and compelling arguments and martial her
arguments in a way that is persuasive to people who might not otherwise be
predisposed to agree with her. And I think you’re seeing that to a certain
extent in the sort of half-embrace that she’s getting from some conservatives,
particularly conservative academics. You know, it goes beyond just the fact she
hired three conservatives at Harvard, and certainly that is to her credit, but
I think it’s also the fact that she treats conservative arguments with respect,
that she seems to genuinely be interested in understanding where conservative
jurists are coming from.” [Fox News' Special Report, 5/7/2010]

FACT: Former Bush lawyer Berenson lauded Kagan’s “fair-minded consideration
of competing views.” From a letter
sent by former Bush administration assistant White House counsel Bradford
Berenson supporting Kagan’s solicitor general nomination:

Her legal acumen is more than equal to the task she
faces, as reflected in her scholarship. The spirit of toleration and
fair-minded consideration of competing views she brought to the Deanship
reflect the sort of temperament and judgment that will inspire confidence in
the Justices of the Supreme Court as well as the private parties with whom she
will need to interact as SG. The same institutional loyalty that has enabled
her to put Harvard Law School’s
interests ahead of her own will undoubtedly cause her to do likewise in service
of the United States.

FACT: Reagan Solicitor General Charles Fried praised Kagan’s
temperament and “ability to put aside disagreements with a candidate’s
political or intellectual disposition.” In a letter
supporting her nomination for solicitor general, Charles Fried — solicitor
general during the Reagan administration — said Kagan “is a superb lawyer
and awesomely intelligent person.” He added: “Her judgment was
unerring. But more strikingly, she showed an ability to put aside disagreements
with a candidate’s political or intellectual disposition and to see only the
quality of the candidate’s intellectual ability and potential contribution. The
result has been the most vibrant and intellectually diverse faculty I have know
[sic] since coming to the Harvard
Law School
in 1961.” Fried offered the following anecdote that he argued “sums
up her temperament and her effect on others”:

Some years ago, it came Harvard Law
School’s turn to host the
national convention of the student chapter of the Federalist Society. There was
a dinner of some 1,000 guests from all over the country and it was her duty as
dean to offer the welcome to our many guests. When she rose she was greeted by
prolonged and thunderous applause. Enduring it for awhile, she finally raised
her hands — a big grin on her face — and said “You are not my
people….” There was loud and friendly laughter in the hall, almost
drowning out her next words: “But I love the Federalist Society.”
This was met by applause more lively and prolonged than before. I would guess
she loves the American Constitution Society too, but I do not go to those
meetings.”

FACT: Bush judicial nominee Estrada said Kagan’s time at Harvard
proves she is “someone who can create consensus,” praised her for
“work[ing] tirelessly to bring intellectual diversity” to the school.
In a letter
supporting her nominations for Solicitor General, Miguel Estrada — who Bush
nominated to be a D.C. Circuit judge — stated that Kagan’s “tenure as
Dean [of Harvard Law School] demonstrates that she is a uniquely gifted
administrator — someone who can create consensus even in an institution that
had become notorious for its fractiousness. For good measure, she has worked
tirelessly to bring intellectual diversity to an institution that for too long
had too little of it.”

FACT: Bush official and judicial nominee Keisler praised Kagan’s
“way of dealing respectfully with everybody.” Former Bush
Justice Department official and D.C. Circuit nominee Peter Keisler wrote
in support of Kagan’s nomination to be solicitor general: “I am confident
that it is precisely this combination of strong intellectual capabilities,
thoughtful judgment, and her way of dealing respectfully with everybody that
enabled her to become such a unifying and universally respected figure at
Harvard.”

FACT: Bush assistant AG Goldsmith spoke of Kagan’s ability to judge
problems “without ideological suppositions.” In a letter
supporting Kagan’s nomination for solicitor general, Jack Goldsmith — former
assistant attorney general for the Office of Legal Counsel during the Bush
administration — stated:
“Good judgment is a hard quality to describe, but Kagan has it. She
understands problems in all their dimensions, she thinks about them clearly and
without ideological suppositions, and she has a knack for understanding well
the consequences and ramifications of various courses of action.” He
added: “Her success at Harvard also resulted from her shrewd ability to
bridge disagreement. Kagan does this by listening to all sides of an argument,
by engaging interlocutors honestly and empathetically, and by exercising her
judgment openly and with good reasons.”

FACT: Laurence Tribe: Kagan is “respectful of the views of
others.” Harvard Law School professor Laurence Tribe wrote:
“No-one I have met at this or any other university has been better at
orchestrating the abilities and energies of faculty, staff, and students
without ruffling anyone’s feathers or leaving hard feelings among those who
cannot, by the nature of things, always get their way. That Elena Kagan was
able to achieve that kind of harmony and cooperation while creating genuine
intellectual excitement as she spearheaded the expansion of the Harvard Law School
faculty in size, ideological range, and substantive depth is nothing short of
remarkable.” He added:

Simultaneously respectful of the views of others
and capable of diplomatically identifying and correcting gaps in their
understanding, Elena Kagan is the ideal advocate for an administration that
seeks common ground among partisan opponents and that must grapple with the
most difficult domestic and foreign challenges any incoming President has had
to face in many generations.

FACT: Former assistant solicitors general: “Kagan is a person
of great legal and personal skills, intellect, integrity, independence, and
judgment.” Six former assistant solicitors general — four of
whom also served as deputy solicitors general — wrote:
“In sum, Dean Kagan is a person of great legal and personal skills,
intellect, integrity, independence and judgment. We therefore believe, based on
extensive personal experience, that she has all the attributes that are
essential to an outstanding Solicitor General.”

[TOP]

Myth: Kagan is anti-free speech

CLAIM: “The First Amendment is something she doesn’t
like.” Conservatives have distorted several statements Kagan has
made about the First Amendment, falsely claiming that these statements indicate
she is a threat to free speech and will allow the government to suppress
conservative opinions. Rush Limbaugh, for example, has claimed, “The
First Amendment is something she doesn’t like,” and Glenn Beck has falsely suggested
that Kagan has endorsed government intervention “if there’s too much
dangerous Glenn Beck or Rush Limbaugh.”

REALITY: Kagan’s First Amendment views are mainstream and
“generally pretty speech-protective.” Conservatives’ claims
are based on a series of gross distortions of Kagan’s writing. Kagan has
specifically written
that government cannot restrict speech because it “disagrees with or
disapproves of the ideas espoused by the speaker” and also cannot
“restrict speech because the ideas espoused threaten officials’ own
self-interest.” Libertarian First Amendment expert Eugene Volokh has
analyzed Kagan’s scholarship and predicts
that she will be “generally pretty speech-protective,” and Fox News
legal analyst Megyn Kelly said that “on free speech, Elena Kagan … seems
pretty middle of the road.” The New York Times reported,
“There are indications … that [Kagan's] views on government regulation
of speech were closer to the Supreme Court’s more conservative justices, like
Antonin Scalia, than to Justice John Paul Stevens.”

CLAIM: Kagan wants government to “disappear” certain
speech. In a May 12 post, Fox
Nation falsely suggested that Kagan argued that speech promoting “racial
or gender inequality” could be “disappeared” by the government.
Fox Nation featured the headline: “Kagan: Some Speech Can Be
‘Disappeared,’ ” linking to a WorldNetDaily article
with the same headline.

FACT: Kagan actually wrote that “the uncoerced
disappearance of such speech would be cause for great elation.”
In the article Fox Nation cited, Kagan actually stated
that “the uncoerced disappearance of such speech would be cause
for great elation”; she did not advocate for a government ban on all such
speech. Indeed, Kagan specifically stated
that government attempts to regulate such speech may violate the Constitution:

This Essay on the regulation of hate speech and
pornography addresses both practicalities and principles. I take it as a given
that we live in a society marred by racial and gender inequality, that certain
forms of speech perpetuate and promote this inequality, and that the uncoerced
disappearance of such speech would be cause for great elation. I do not take it
as a given that all governmental efforts to regulate such speech thus accord
with the Constitution.

FACT: Kagan said the First Amendment presumption against allowing
the government to engage in “viewpoint discrimination” “has real
worth.” Kagan wrote
in conclusion:

The presumption against viewpoint discrimination,
relied upon in Hudnut and further strengthened in R.A.V., has
come to serve as the very keystone of First Amendment jurisprudence. This
presumption, in my view, has real worth, in protecting against improperly
motivated governmental action and against distorting effects on public
discourse. And even if I assign it too great a value, the principle still will
have to be taken into account by those who favor any regulation either of hate
speech or of pornography.

CLAIM: Kagan endorsed government action against an
“overabundance” of conservative opinion. In a segment on his
Fox News show warning that the Obama administration is somehow trying to
restrict freedom of speech, Beck grossly distorted a
1996 University of Chicago Law Review article
written by Kagan. Beck falsely claimed that Kagan endorsed government
intervention to “unskew” public debate “if there’s too much
dangerous Glenn Beck or Rush Limbaugh”:

Well, we’ve got to read a 1996 paper in which she
wrote, quote, “If there is an ‘overabundance’ of an idea in the absence of
direct governmental action — which there might well be when compared with some
ideal state of public debate — then action disfavoring that idea might
‘unskew,’ rather than skew, public discourse.”

OK, so that — so if that’s too much — if there’s
too much dangerous Glenn Beck or Rush Limbaugh, or too much talk radio, action
by the government can unskew things and balance out the opinion. You see?
That’s your new Supreme Court nominee.

FACT: Kagan did not endorse regulating political opinions on talk
radio or elsewhere. In her article, Kagan was arguing that the Supreme
Court has usually based its decisions about government regulation of speech on
the government’s motives rather than on the consequences of the regulation. In
the specific portion of the article that Beck distorted, Kagan was not
endorsing government attempts to regulate or “unskew” talk radio or
any other medium to “balance out” Beck and Limbaugh. Rather, Kagan
was discussing the 1992 case R.A.V.
v. City of St. Paul, which invalidated an anti-hate speech law enacted
in St. Paul, Minnesota. Kagan argued that the R.A.V.
decision was based on St. Paul’s
“illegitimate, censorial motives” in passing the law — not on the
ways in which the law might have impermissibly “skewed” public
debate. Kagan wrote:

Finally, the notion of a skewing effect, as an
explanation of R.A.V. or any other case, rests on a set of problematic
foundations. The argument assumes that “distortion” of the realm of
ideas arises from — and only from — direct governmental restrictions on the
content of speech. But distortion of public discourse might arise also (or
instead) from the many rules of property and other law that, without focusing
or intending to focus on any particular speech, determine who has access to
expressive opportunities. If there is an “overabundance” of an idea
in the absence of direct governmental action — which there well might be when
compared with some ideal state of public debate — then action disfavoring that
idea might “unskew,” rather than skew, public discourse. Suppose, for
example, that racists control a disproportionate share of the available means
of communication; then, a law like St.
Paul’s might provide a corrective.

A court well might — as the R.A.V. Court did — refuse the
government the power to provide this corrective, but to do so, the court must
discard a rationale focused purely on effects and adopt a rationale focused on
motive.

[...]

The worry in a case like R.A.V. is not
with skewing effects per se; the fear of skewing effects depends upon, and
becomes meaningless without, the fear that impermissible considerations — call
them for now “censorial” or “ideological” considerations –
intruded on the decision to restrict expression.

The R.A.V.
Court made this concern about illegitimate,
censorial motives unusually evident in its opinion, all but proclaiming that
sources, not consequences, forced the decision. [Kagan, "Private Speech,
Public Purpose," 1996, Pages
420-421]

Kagan: Government “may not restrict” speech “because
it disagrees with … the ideas espoused by the speaker.” In
defining what constitutes an impermissible government motive for regulating
speech, Kagan specifically wrote in the article Beck distorted that government
cannot regulate speech because it “disagrees with or disapproves of the
ideas espoused by the speaker” and also cannot “restrict speech
because the ideas espoused threaten officials’ own self-interest.” From
her article:

Consider the following snapshot of impermissible
motives for speech restrictions. First, the government may not restrict
expressive activities because it disagrees with or disapproves of the ideas
espoused by the speaker; it may not act on the basis of a view of what is a
true (or false) belief or a right (or wrong) opinion. Or, to say this in a
slightly different way, the government cannot count as a harm, which it has a
legitimate interest in preventing, that ideas it considers faulty or abhorrent
enter the public dialogue and challenge the official understanding of
acceptability or correctness. Second, though relatedly, the government may not
restrict speech because the ideas espoused threaten officials’ own
self-interest — more particularly, their tenure in office.

FACT: Experts say Kagan’s
First Amendment views are mainstream and “generally pretty speech-protective.”

• First Amendment
  scholar Volokh predicts that — like Justice Ginsburg — Kagan will likely
  be “generally pretty speech-protective.” Libertarian
  law professor and First Amendment expert Eugene Volokh examined Kagan’s
  scholarship on the First Amendment and concluded that “the likeliest
  bet” is that Kagan would be “generally speech-protective, but
  probably with some exceptions in those areas where the liberal Justices on
  the Court have taken a more speech-restrictive view.” Volokh wrote:

On then to my own evaluation of the First
Amendment articles: I think they’re excellent. I disagree with them in
significant ways (this
article, for instance, reaches results that differ quite a bit from those
suggested by Kagan’s Private Speech, Public Purpose article, see, e.g., PDF pp.
8-9). But I like them a lot.

[...]

My guess is that the likeliest bet would be to say
that a Justice Kagan would be roughly where Justice Ginsburg is — generally
pretty speech-protective, but probably with some exceptions in those areas
where the liberal Justices on the Court have taken a more speech-restrictive
view, chiefly expensive speech related to campaigns and religious speech in
generally available government subsidies. Not perfect from my perspective, but
not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely
agreed on such matters.

• Former Chicago Law
  School
  Dean Stone: Kagan approached First Amendment issues “without even a
  hint of predisposition.” Geoffrey R. Stone, a law professor
  at the University
  of Chicago who was
  dean when Kagan was hired there, wrote in a May 10 article:

In her formative years as a scholar, Kagan wrote a
series of illuminating articles about freedom of speech. They were illuminating
not only because they shed interesting light on the First Amendment, but also
because they reveal a lot about Kagan. In an area rife with ideology, her
articles addressed complex and weighty legal questions without even a hint of
predisposition.

In one early essay, she addressed the provocative
issue of hate speech. After examining the question in a rigorous, lawyerlike
manner, she came out in full support of a highly controversial 5-4 decision
authored by none other than conservative Justice Antonin Scalia, which held
that the government cannot constitutionally ban hate speech. Kagan reached this
result even though it was clearly contrary to the liberal orthodoxy at the
time.

• Even Fox News’ Megyn
  Kelly says Kagan “seems pretty middle of the road” on “free
  speech matters.” From the May 11 edition of The O’Reilly
  Factor (retrieved from Nexis):

KELLY: Well, I have to say on free speech, Elena
Kagan, so far this is something she’s written a lot about, seems pretty middle
of the road. I don’t expect her to be a far left liberal on free speech
matters.

• NY Times
  reports there are indications Kagan’s “views on government regulation
  of speech were closer to the Supreme Court’s more conservative justices,
  like Antonin Scalia.” The New York Times reported
  in a May 14 article:

In her early years as a law professor, Elena Kagan
wrote almost exclusively on the First Amendment. There are indications in those
writings that her views on government regulation of speech were closer to the
Supreme Court’s more conservative justices, like Antonin Scalia, than to
Justice John Paul Stevens, whom she hopes to replace.

[TOP]

Myth: Kagan supports banning books

CLAIM: As solicitor general, Kagan argued that the government can
ban books. David Bossie falsely claimed
that in a 2009 case, Kagan “came out in oral arguments in our case before
the Supreme Court and stated that books could be banned.”

FACT: The argument that campaign books paid for by corporate funds
could be banned was actually made by a deputy solicitor general five days after
Kagan was confirmed. Bossie’s group was the plaintiff in Citizens
United v. FEC, a Supreme Court case dealing with the constitutionality of
the Federal Elections Commission’s decision that Citizens United could not air
a movie advocating against Hillary Clinton’s presidential candidacy if that
movie was paid for by corporate funds. On March 24, 2009 — five
days after the Senate confirmed Kagan — the Supreme Court heard oral
arguments in the case. Deputy Solicitor General Malcolm Stewart stated during
the oral
argument that, in addition to a movie, the federal government could
“prohibit the publication of [a] book using the corporate treasury
funds” if that book ended by saying “vote for X.”

FACT: When the case was reargued, Kagan specifically argued that
federal law had never banned books and likely could not do so. In June
2009, the Supreme Court decided to postpone its decision in Citizens United,
asked the litigants to brief additional issues, and ordered the lawyers to
reargue the case in September 2009. Kagan argued on behalf of the federal
government. She stated
that if the government tried to ban books under campaign finance laws,
“there would be quite good as-applied challenge” to the law, meaning
that the corporation attempting to publish the book would have a good
constitutional case that the book couldn’t be banned. Kagan later added:
“[W]hat we’re saying is that there has never been an enforcement action
for books. Nobody has ever suggested — nobody in Congress, nobody in the
administrative apparatus has ever suggested that books pose any kind of
corruption problem, so I think that there would be a good as-applied challenge
with respect to that.”

[TOP]

Myth: Kagan wanted to “ban pamphlets” by individuals

CLAIM: Kagan wanted to “ban pamphlets” by “modern Thomas Paines.” The Washington Examiner falsely suggested that Elena Kagan wanted to “ban pamphlets” written by individuals. In a May 17 blog post, Examiner political editor Chris Stirewalt claimed “[a]ll [Kagan] really wanted to do was ban pamphlets” by “modern Thomas Paines.”

REALITY: Kagan specifically discussed government prohibiting corporations and unions — not individuals — from spending funds on pamphlets to influence elections. In fact, in Citizens United, Kagan argued that government could prohibit corporations and unions
– not individuals — from spending general funds on pamphlets to
directly support or oppose political candidates. Indeed, Chief Justice
John Roberts’ concurring opinion said that the government’s position would allow prohibition against corporations and unions participating in political speech through pamphlets.

FACT: Kagan argued for interpretation of Supreme Court precedent that would protect shareholders and the public. Kagan
argued that “when corporations use other people’s money to electioneer,
that is a harm not just to the shareholders themselves, but a sort of a
broader harm to the public that comes from distortion of the
electioneering that is done by corporations.” From Kagan’s September 9,
2009, oral argument in Citizens United v. F.E.C.:

KAGAN: For over 100 years Congress has made a judgment that
corporations must be subject to special rules when they participate in
elections and this Court has never questioned that judgment.

[...]

I would say either the quid pro quo interest, the corruption
interest or the shareholder interest, or what I would say is a (.) is
something related to the shareholder interest that is in truth my view
of Austin, which is a view that when corporations use other people’s
money to electioneer, that is a harm not just to the shareholders
themselves but a sort of a broader harm to the public that comes from
distortion of the electioneering that is done by corporations.

[...]

You know, an individual can be the wealthiest person in the world
but few of us (.) maybe some (.) but few of us are only our economic
interests.

We have beliefs, we have convictions; we have likes and dislikes.

Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.

[TOP]

Myth: Kagan is anti-Second Amendment

CLAIM: Kagan’s statements about the Second Amendment are outside the
mainstream. The Drudge Report highlighted
the following out-of-context Kagan quotes to falsely suggest that Kagan’s
statements indicate her views on gun rights are outside the mainstream:

Kagan
‘Not Sympathetic’ to Gun-Rights Argument…
‘Not
Unlimited Protection’…

FACT: Scalia agrees with Kagan that Second Amendment rights are
“not unlimited.” In her solicitor general confirmation
hearing, Kagan said that following the 2008 Supreme Court case of District of
Columbia v. Heller, “there is no question … that the Second
Amendment guarantees individuals the right to keep and bear arms and that this
right, like others in the Constitution, provides strong although not unlimited
protection against governmental regulation.” Kagan’s statement that Second
Amendment rights are “not unlimited” is not controversial. The majority
opinion in Heller, which was written by Antonin Scalia and joined
by the Supreme Court’s most conservative members, stated:

Like most rights, the right secured by the
Second Amendment is not unlimited. From Blackstone through the
19th-century cases, commentators and courts routinely explained that the right
was not a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.

[...]

Nothing in our opinion should be taken to cast
doubt on longstanding prohibitions on the possession of firearms by felons and
the mentally ill, or laws forbidding the carrying of firearms in sensitive
places such as schools and government buildings, or laws imposing conditions
and qualifications on the commercial sale of arms.

FACT: Supreme Court has upheld gun restrictions. In his
majority opinion, Scalia listed
gun restrictions that the courts have long upheld as constitutional, including
“prohibitions on carrying concealed weapons,” prohibitions on
“the carrying of ‘dangerous and unusual weapons’ ” such as an M-16
rifle, and “longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.”

FACT: Kagan’s 1987 statement that she was “not
sympathetic” to a gun rights argument was consistent with generally
accepted constitutional scholarship at the time. The May 13 Bloomberg
News article
Drudge linked to reported:

Elena Kagan said as a U.S. Supreme Court law clerk in
1987 that she was “not sympathetic” toward a man who contended that
his constitutional rights were violated when he was convicted for carrying an
unlicensed pistol.

Kagan, whom President Barack Obama nominated to the
high court this week, made the comment to Justice Thurgood Marshall, urging him
in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.

The man’s “sole contention is that the District of Columbia’s
firearms statutes violate his constitutional right to ‘keep and bear arms,’
” Kagan wrote. “I’m not sympathetic.”

In fact, the view that the Second Amendment does not protect civilian gun
rights was generally accepted at the time Kagan wrote those words.

FACT: In 2008, Stevens and three other justices agreed that the
Second Amendment did not protect gun rights for non-military purposes.
In a dissent to District of Columbia v. Heller, the case that struck
down Washington, D.C.’s handgun ban, Justice John Paul
Stevens, who Kagan has been nominated to replace, stated that “there is no
indication that the Framers of the Amendment intended to enshrine the
common-law right of self-defense in the Constitution.” Stevens’ dissent
was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer.
From Stevens’ dissent:

Guns are used to hunt, for self-defense, to commit
crimes, for sporting activities, and to perform military duties. The Second
Amendment plainly does not protect the right to use a gun to rob a bank; it is
equally clear that it does encompass the right to use weapons for certain
military purposes. Whether it also protects the right to possess and use guns
for nonmilitary purposes like hunting and personal self-defense is the question
presented by this case. The text of the Amendment, its history, and our
decision in United States v.
Miller, 307 U. S.
174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the
right of the people of each of the several States to maintain a well-regulated
militia. It was a response to concerns raised during the ratification of the
Constitution that the power of Congress to disarm the state militias and create
a national standing army posed an intolerable threat to the sovereignty of the
several States. Neither the text of the Amendment nor the arguments advanced by
its proponents evidenced the slightest interest in limiting any legislature’s
authority to regulate private civilian uses of firearms. Specifically, there is
no indication that the Framers of the Amendment intended to enshrine the
common-law right of self-defense in the Constitution.

FACT: In 1987, no Supreme Court or federal appellate court decision
had found that the Second Amendment protected the right to carry guns for
non-military purposes. In Heller, a 2008 case, Stevens cited United
States v. Miller, a 1934 Supreme Court case that upheld a ban on sawed-off
shotguns, and stated: “Since our decision in Miller, hundreds of judges
have relied on the view of the Amendment we endorsed there; we ourselves
affirmed it in 1980.” Stevens also stated:

Until the Fifth Circuit’s decision in United States
v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the
question had understood Miller to hold that the Second Amendment does not
protect the right to possess and use guns for purely private, civilian
purposes.

FACT: In the legal context the phrase “not sympathetic”
does not connote personal political views. Contrary to suggestions by
conservatives, Kagan’s 1987 use of the phrase “not sympathetic” is
not evidence that she was referring to her personal views. Numerous current and
former Supreme Court justices — including Samuel Alito, Clarence Thomas,
William Rehnquist, and Stevens — have used the term “sympathetic” to
refer to agreement or disagreement with legal arguments.

[TOP]

Myth: Kagan compared the NRA to
the Klan

CLAIM: In handwritten notes,
Kagan compared the National Rifle Association to the Klan. A June 18 National Review
Online blog post
headlined “Did Kagan Compare the NRA with the KKK?” stated: “Kagan apparently
tied the NRA to the KKK.” The blog post referred to handwritten notes Kagan took
as a member of the Clinton
administration in which she wrote: “Bad guy orgs — not NRA … not KKK.” Fox Nation also wrote:

Here’s
the White House version of events. At the time, two separate things were going on
simultaneously. First, Clinton
officials were concerned that the proposal would make it tougher for victims of
gun violence to pursue liability claims. Officials viewed the bill as a major giveaway
to the gun industry and the NRA. As part of analyzing the impact in this area, Clinton lawyers looked at how
it would benefit the NRA.

In
a second, separate development, Democratic members of Congress were worried that
the act could protect the KKK and other hate groups from liability. Senator Patrick
Leahy branded it the “KKK protection act.” That prompted Clinton lawyers to analyze
how it would impact such groups — the KKK included.

FACT: White House says Kagan
was simply “writing down notes” about another lawyer’s memo. CNN’s Ed Henry reported
on June 18 that the White House is “trying to make the point that this is not
Elena Kagan herself calling them bad guys or lumping them together with a racist
group like the KKK” and that in her notes, Kagan was simply repeating the language
of the memo and the broader public “debate at the time.” Henry explained:

[W]hat they’re saying is, it’s important to note that Elena Kagan did
not write the original memo suggesting perhaps that the KKK and NRA would be lumped together
and would be known as “bad guys.” Instead, she was on phone, talking
about this memo and writing down notes about it. Now, obviously we weren’t there
in 1996. We don’t know all the details, but what the White House is insisting is
that she did not lump the KKK and the NRA together originally. She was repeating
the debate at the time. [emphasis added]

A June 18 CNN.com article
reported
that the White House explained that Kagan’s notes simply “track[ed]” another
lawyer’s memo and that the White House said that “the organizations discussed
reflect the public debate over the legislation at that time”:

“Kagan’s
notes from a conversation with DOJ Attorney Fran Allegra track an earlier memo Allegra
sent to her outlining which organizations would be shielded under volunteer and
nonprofit liability legislation,” said White House spokesman Ben LaBolt. “Allegra’s
memo notes that neither the KKK nor the NRA would be shielded from liability under
the bill, after Democrats in Congress and others raised concerns that the provision
swept too broadly. It’s simply not credible to suggest that these jotted down notes
represent anything but preliminary research on legal questions about what organizations
would be covered under the legislation, and the organizations discussed reflect
the public debate over the legislation at that time.”

FACT: “Bad guy”
language in Kagan’s notes echoes language from memo she was reportedly discussing. The memo
Kagan was reportedly discussing was written on March 27, 1996, by then-Justice Department
lawyer Fran Allegra. It suggested that the NRA and the Klan would likely not receive
protection under the act and said, “[W]e probably need to be careful about
suggesting that ‘bad’ organizations will qualify for the provision in the bill as
it would suggest that we are allowing ‘bad’ organization to qualify for tax-exempt
status.” In the notes
she took the same day, reportedly while discussing Allegra’s memo, Kagan similarly
wrote, “Bad guy orgs — not NRA … not KKK” — presumably summarizing
Allegra’s analysis that the NRA and KKK would not be protected by the legislation.

FACT: There’s no evidence
of any comparison between the NRA and the Klan. Nowhere in Kagan’s notes
did she “compare” or “tie” the NRA to the Klan. As Sargent explained:

There’s nothing in the docs that draws an explicit comparison between
the NRA and the KKK. The White House will argue that it’s incidental that they happened
to be listed next to each other — they were only two of many groups that lawyers
were examining in order to determine how they’d be impacted by the law.

It’s
perhaps unfortunate for the White House that she happened to list the two names
side by side. But there’s no evidence of any comparison, aside from the fact
that they appeared next to each other on two pieces of paper amid a lengthy and
wide-ranging analysis.

[TOP]

Myth: Kagan banned ROTC from campus

CLAIM: As Harvard
Law School
dean, Kagan banned ROTC from campus. On the May 12 edition of his Fox
News show, Sean Hannity aired Sen. John
McCain’s false suggestion that Kagan had something to do with Harvard’s policy
on ROTC. McCain said
that “the members of the ROTC at Harvard had to go to MIT to do their
training” and suggested that Kagan is responsible for preventing
“ROTC to be conducted on their campus.”

FACT: Kagan made clear that she had nothing to do with Harvard’s
ROTC policy. In response
to written questions during her solicitor general confirmation process, Kagan made
clear that she had nothing to do with Harvard’s ROTC policy, writing:
“My statements and actions defending the Law School’s general
nondiscrimination policy did not sweep more broadly. The position I took does
not entail a view on the exclusion of ROTC from college campuses, and I never
expressed a position on the exclusion of ROTC from Harvard.”

FACT: Harvard’s policy on ROTC took effect four decades ago — many
years before Kagan was dean. The Harvard Crimson reported
in June 2009 that the policy was a result of protests against the Vietnam War,
which fostered “a rising tide of opposition” to “ROTC’s presence
at Harvard.” From the article:

In the late 1960s, amid student protests against
the Vietnam War, a rising tide of opposition emerged to ROTC’s presence at
Harvard.

Students and faculty members expressed concerns
about ROTC’s recruitment of undergraduates for the war. Faculty members also
questioned the academic rigor of ROTC courses, which were taught by military
officers in the Departments of Military Science, Naval Science and Aerospace
Studies. In April 1969 a group of students occupied University Hall in an act
of protest against the Corps, and the Faculty subsequently voted to expel the
ROTC program.

The process of removing army, navy and air force
units was completed in June 1971, in accordance with a timeline mandated by the
Harvard Corporation — the University’s governing body.

FACT: Many elite universities exclude ROTC programs from their
campus. As an October 2009 New York Times article noted,
antiwar protests in the 1960s led to the ban of ROTC programs at many elite
universities, including Yale, Brown, Columbia,
Stanford, the University
of Chicago, and Tufts.

[TOP]

Myth: Kagan “cover[ed] up” plagiarism at
Harvard Law

CLAIM: Kagan oversaw “whitewash” of plagiarism by liberal
professors. In a May 9 blog post, Michelle Malkin accused
Kagan of a “cover-up” and linked to a May 5 Jewish World Review
article headlined “Kagan
Whitewash,” which reported that in 2004 and 2005, Kagan “treated
two liberal law professors with kid gloves when they were busted for
plagiarism. Her chicanery was so blatant that even a leftist academic said she
should be fired for her ‘whitewash.’ ” Likewise, in his May 14 Washington
Times column,
Jeffrey Kuhner claimed that Kagan “was a corrupt administrator, who turned
a blind eye to plagiarism by prominent Harvard faculty members.”

REALITY: Kagan launched investigations into plagiarism allegations
that uncovered no deliberate wrongdoing. Under Kagan’s leadership,
Harvard investigated the allegations into the work of professors Charles
Ogletree and Lawrence Tribe and found no deliberate wrongdoing, and there is no
evidence that the findings were motivated by politics.

FACT: Internal investigation into Ogletree allegation reportedly
found incident to be “an honest mistake.” In a September
2004 article,
the Harvard Law Record reported that Kagan initiated an investigation
after six paragraphs of Ogletree’s book, All Deliberate Speed, were
found to be identical to Yale Law professor Jack Balkin’s book, What Brown
v. Board of Education Should Have Said. The article stated that Ogletree
was “cleared of intentional plagiarism.” The article reported:

An internal law school investigation led by two
former Harvard officials found the plagiarism incident to be an honest mistake.
HLS Dean Elena Kagan appointed former Harvard University President Derek Box
[sic] and former HLS Dean Robert Clark to investigate the matter. The
investigation involved reviewing documents and interviewing research assistants
in an attempt to single out how the error occurred. The investigation yielded a
finding in agreement with Professor Ogletree’s version of events.

FACT: Harvard spokesman said Kagan deemed Ogletree case “a
serious scholarly transgression.” In a September 2004 article,
The Boston Globe reported that former Harvard president Derek Bok –
who Kagan had asked to investigate the plagiarism allegations against Ogletree
– “characterized the borrowing as an accident” and quoted him
saying, “There was no deliberate wrongdoing at all.” The Boston
Globe also stated, “Based on their report, Kagan deemed the case ‘a
serious scholarly transgression,’ according to [Harvard Law
School spokesman Michael]
Armini.”

FACT: NY Times reported that
“scholars say the increasing reliance of scholars upon research assistants
in the quest to publish increases” errors. In a November 2004
article, The New York Times reported
that “[s]ome scholars argued that Professor Ogletree’s statement was a
public humiliation more severe than any punishment that could be meted out to a
student.” It later added: “Along with the growing use of the Internet
for research, some scholars say the increasing reliance of scholars upon
research assistants in the quest to publish increases the risk of the sort of
academic error made by Professor Ogletree.”

FACT: Following panel inquiry, Kagan, Summers were “firmly
convinced” Tribe’s “error was the product of inadvertence rather than
intentionality.” In an April 2005 article,
The Boston Globe reported that “[then-Harvard president Lawrence]
Summers and Kagan appointed former president Derek Bok, former dean of the
Faculty of Arts and Sciences Jeremy Knowles, and Sidney Verba, a government
professor and the university librarian, to conduct an inquiry.” The
article also stated that based on the findings of the inquiry, “Summers
and Kagan said, ‘The unattributed material relates more to matters of phrasing
than to fundamental ideas. … We are also firmly convinced that the error was
the product of inadvertence rather than intentionality. … Nevertheless, we
regard the error in question as a significant lapse in proper academic
practice.’ “

[TOP]

Myth: Kagan’s citation of Marshall’s statement that the original
Constitution was “defective” is controversial

CLAIM: Kagan’s citation of Marshall’s
claim that the Constitution as originally written was “defective” is
controversial. On his May 10 program,
Limbaugh attacked
Kagan for citing former Justice Thurgood Marshall’s statement that the
Constitution as originally written was “defective” in an article
praising Marshall.

REALITY: As prominent Republicans have done, Marshall was noting that Constitution was
flawed because it permitted slavery. In the speech Kagan was quoting, Marshall said the
Constitution was “defective” because it permitted slavery and did not
guarantee women’s suffrage. President George W. Bush and Secretaries of State
Colin Powell and Condoleezza Rice have offered similar comments.

FACT: Marshall
stated original Constitution was “defective” because it permitted
slavery. In his May 6, 1987, speech
to the San Francisco Patent and Trademark Law Association, Marshall — the
first African-American Supreme Court justice — stated:

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.

FACT: Kagan cited Marshall’s
comments in tribute after his death. In a 1993 article in Texas
Law Review following Marshall’s death, 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.”
The Constitution today, the Justice continued, contains a great deal to be
proud of. “[B]ut 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.” The credit, in other words,
belongs to people like Justice Marshall. As the many thousands who waited on
the Supreme Court steps well knew, our modem Constitution is his.

FACT: Bush said “[m]oral vision” of abolitionists led
Americans to “correct our Constitution.” In July 8, 2003, remarks
made at Goree Island in Senegal, Bush said that the “moral vision” of
abolitionists “caused Americans to examine our hearts, to correct our
Constitution, and to teach our children the dignity and equality of every
person of every race.” He added: “The racial bigotry fed by slavery
did not end with slavery or with segregation. And many of the issues that still
trouble America
have roots in the bitter experience of other times.”

FACT: Rice said slavery was the Constitution’s “great birth
defect.” At a July 19, 2008, event
at the Council on Foreign Relations, Rice said: “In our first
Constitution, my ancestors were three-fifths of a man. What does that say about
American democracy at its outset? I’ve said it’s a great birth defect. And we
have had to overcome a birth defect. And, like any birth defect, it continues
to have an impact on us. It’s why we have such a hard time talking about race,
and dealing with race.”

FACT: Powell said “we could not live our Constitution truly
unless we eliminated slavery.” During a July 10, 2003, interview
on CNN’s Larry King Live, Powell said: “It took us a while to
recognize that we could not live our Constitution truly unless we eliminated
slavery, and hundreds of thousands of young men fought a civil war to end
slavery and then it took us a long time to get rid of the vestiges of slavery
and we’re still working on it to this very day.”

[TOP]

Myth: Kagan’s memos to Justice Thurgood Marshall prove she’s outside mainstream

CLAIM: Kagan’s memos prove she is outside of the mainstream on abortion and marriage.
Media have used memos Kagan wrote as a law clerk to Justice Thurgood
Marshall to paint her as outside of the mainstream on constitutional
issues relating to abortion or marriage.

REALITY: Legal expert says the memos show Kagan “doing what she was supposed to do.” According
to legal expert Eugene Volokh, Kagan’s memos to Marshall “show her
doing what she was supposed to do” as a law clerk for Justice Marshall.
And the memos do not show her taking extreme positions on abortion or
marriage.

FACT: Contrary to reports, Kagan did not advise Marshall to find that prisoners have a right to state funding for abortions. In a CBS Evening News report, Jan Crawford wrote
that the argument that prisoners have an Eighth Amendment right to
elective abortion is “ludicrous.” She also noted that “non-prisoners
have no rights to funding for abortions”:

[T]he CA [Court of Appeals] held that the denial of elective
abortions to inmates constitutes a breach of the duty to attend to
inmates’ medical needs and therefore contravenes the Eighth Amendment.
In this part of the analysis, the CA strongly suggested that the county
must assume the cost of providing inmates with elective abortions in
order to comply with the Eighth Amendment. Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous. Since
elective abortions are not medically necessary, I cannot see how denial
of such abortions is a breach of the Eighth Amendment obligation to
provide prisoners with needed medical care. And given that non-prisoners have no rights to funding for abortions, I do not see why prisoners should have such rights.
Of course, I recommend that you deny this petition, but I think the
Court will probably grant it. Judge Higginbotham simply went too far;
this case is likely to become the vehicle that this Court uses to
create some very bad law on abortion and/or prisoners’ rights.
[emphases added]

FACT: Reports distorted Kagan’s advice to Marshall about marriage. memo mentioned same-sex marriage.

FACT: In marriage case, Kagan was actually merely advising Marshall to call for a response from New York State.
According to Kagan’s memo, New York State initially waived its right to
respond to Miner’s request for the Supreme Court to hear the case.
(According to a 2009 George Mason Law Review article written
by David C. Thompson, a clerk for Justice Antonin Scalia at the time,
and Melanie F. Wachtell, an attorney, the respondent waives the right
to respond “[i]n the vast majority of cases.”) Kagan — having read
only the petitioner’s brief — advised Marshall to issue “a CFR,” a “call for response” from New York State. Kagan wrote:

Petr [petitioner] contends that respt [respondent] must, under the
Full Faith and Credit Clause, recognize a proxy marriage that is valid
in the State where contracted as valid in New York. The state courts
did not address this Full Faith and Credit issue. I think petr’s
position is at least arguably correct and would recommend a CFR.

FACT: Although Kagan’s Marshall memos have long been
publicly available, no one took issue with her statements on abortion
or marriage prior to her Supreme Court nomination. Kagan’s
Marshall memos have long been publicly available at the Library of
Congress, and she was asked about them during her SG hearing.
Pennsylvania Sen. Arlen Specter (then a Republican) asked Kagan about
the memos during her solicitor general confirmation hearing in 2009,
notably describing “a whole series of memos which you [Kagan] sent to
Justice Marshall.” In his written questions, Sen. Jeff Sessions (R-AL) also asked
Kagan about a memo she wrote as a Marshall clerk. But none of the
senators took issue with Kagan’s statements in the memos on abortion or
marriage.

FACT: Legal expert says Kagan’s Marshall memos “show her doing what she was supposed to do.” Legal expert Eugene Volokh wrote in a June 10 post titled, “Judicial Law Clerks’ Memos to Their Bosses,” that, in fact, Kagan’s memos to Marshall “show her doing what she was supposed to do.” From the post:

And of course Kagan was a lawyer working for Justice Marshall.
Justice Marshall’s job was to decide whether to grant certiorari based
on whether the Court’s decision was likely to clarify or improve the
law. Her job was to give Justice Marshall advice based on whether the
Court’s decision was likely to clarify or improve the law from Justice
Marshall’s perspective.

[...]

Sens. Sessions and Kyl reportedly “highlighted a memo in which Kagan
says she’s ‘shocked’ by a government sting operation to catch a child
pornographer that involved a Postal Service newsletter called ‘Love
Land’ including ads offering sexually oriented material. Sessions said
the language suggests ‘a rather personal view, not the dispassionate
legal view that you would expect from a law clerk.’”

I don’t think that’s right: A law clerk working for his Justice has
no obligation to be “dispassionate” in a casual exchange, any more than
Sen. Sessions’ legal aides have such an obligation in casual exchanges
with him about proposed legislation (or for that matter about a
judicial nominee). And while it’s pretty clear that the decision
whether to grant certiorari shouldn’t be made based on a clerk’s
“personal view,” it’s equally clear that Justice Marshall doesn’t much
care whether his clerk was shocked by something: He would decide based
on his views, personal or otherwise, not based on hers

FACT: Kagan said purpose of memos was to “channel” Marshall. Responding to a question from Specter at her solicitor general hearing about the Marshall memos, Kagan said:

[L]et me step back a little, if I may, Senator, and — and talk
about my role as a clerk in Justice Marshall’s chambers. You know, we
produce an enormous amount of paper for Justice Marshall. He was not in
what is called the cert pool, so we wrote memos on literally every
single case where there was a petition. And that is hundreds and
hundreds and — probably thousands. And I’m sure that there were
hundreds of criminal cases of which — again, there was a blog post
about — about five — about five of them.

But our view — I don’t want to say that there is nothing of me in
these memos. You first asked about Boeing v. Kendrick. And I think it’s
actually fair when you look at that memo to think that I was stating an
opinion, however wrong it may have been. But I think, in large
measure, these memos were written in the context of you’re insistent
for a justice. You’re trying to facilitate his work and to enable him
to advance his goals and purposes as a justice. And I think most of
what we wrote was in that context.

You know, I was a 27-year-old pipsqueak and I was looking for a
90-year-old giant in the law, and a person who, let us be frank, had
very strong jurisprudential and legal views. He knew what he thought
about most issues. And for better or for worse, he wasn’t really
interested in engaging with his clerks on first principles. And — and
– and he was asking us, in the context in those cert petitions, to
think — to channel him and to think about what cases he would want the
courts to decide. And in that context, I think all of us were right to
say, “Here are the cases which the court is likely to do good things
with from your perspective, and here are the ones where they’re not.”
And I think that those five that you mentioned were doing. [emphasis
added]

FACT: Even NRO’s Whelan commented: “Kagan’s views 23 years ago don’t necessarily reflect her views today.” Even Whelan, in a blog post that referenced a memo Kagan had written as a Marshall clerk, commented (emphasis in the original):

It ought to go without saying–but, given the apparent tendency of
some folks to misconstrue things, perhaps it’s necessary to say–that

Kagan’s views 23 years ago don’t necessarily reflect her views today.

[TOP]

Myth: Kagan’s campaign donations are unusual

CLAIM: Kagan’s donations to Democratic candidates are unusual. In
a May 10 tweet,
Laura Ingraham stated: “2000-2008 Kagan donated $12,550 to Democrats, more
than half of it to Barack Obama.”

FACT: Roberts donated to Republican candidates, including George W.
Bush. According to a July 20, 2005, Associated
Press report, John Roberts “has contributed more than $3,700 to
Republican candidates, including $1,000 to George W. Bush’s successful bid for
the presidency in 2000.”

FACT: Roberts had a history of involvement in GOP campaign activity.
According to his Senate Judiciary questionnaire
for his Supreme Court nomination, Roberts was a member of the “Executive
Committee, D.C. Lawyers for Bush-Quayle ’88″ and “Lawyers for
Bush-Cheney” in 2000 and “assist[ed] those working on behalf of
George W. Bush on various aspects of the recount litigation.”

FACT: Dozens of Bush-appointed judges “made political
contributions to key Republicans or to the president himself while under
consideration for their judgeships.” According
to a 2006 study
by the Center for Investigative Reporting:

At least two dozen federal judges appointed by
President Bush since 2001 made political contributions to key Republicans or to
the president himself while under consideration for their judgeships,
government records show.

A four-month investigation of Bush-appointed judges
by the Center for Investigative Reporting reveals that six appellate court
judges and 18 district court judges contributed a total of more than $44,000 to
politicians who were influential in their appointments. Some gave money
directly to Bush after he officially nominated them.

[TOP]

Myth: Kagan supported Saudi sponsors of terrorism

CLAIM: Kagan “helped shield Saudi Arabia from lawsuits” by
9-11 families. WorldNetDaily reported
on May 12 that Kagan “helped shield Saudi Arabia from lawsuits filed by
families of 9/11 victims seeking to target countries and leaders who helped
finance al-Qaida” by asking the Supreme Court not to hear a case against
the Saudi royal family.

REALITY: Kagan’s actions as solicitor general not evidence of her
personal legal views; both Bush administrations offered similar arguments. All
the courts involved agreed with the solicitor general’s position that members
of the Saudi royal family should be dismissed from the case; Kagan’s actions as
solicitor general are not evidence of her personal legal views; and the
administrations of Presidents George H.W. Bush and George W. Bush similarly
argued that civil cases alleging torture or terrorism by foreign governments
interfered with the conduct of foreign policy.

FACT: Courts agreed with solicitor general’s position in Saudi case.
In 2005, in In re Terrorist Attacks on September 11, 2001
(retrieved via Westlaw), the U.S. District Court for the Southern District of
New York dismissed
members of the Saudi royal family from a lawsuit by 9-11 victims on the
grounds that the court did not have jurisdiction over certain defendants and
that the others were immune from suit under the federal Foreign Sovereign
Immunities Act. In 2005, a 2nd Circuit Court of Appeals panel, in an opinion
written by Chief Judge Dennis Jacobs — an appointee of George H.W. Bush –
unanimously affirmed the decision. In May 2009, the solicitor general’s office
filed amicus curiae brief
arguing that the Supreme Court should decline to hear the plaintiffs’ appeal.
The Supreme Court ultimately declined to hear the appeal.

FACT: Legal experts say that Kagan’s personal legal views can’t be
inferred from her actions as solicitor general. Pamela Harris, the
head of Georgetown University’s Supreme Court Institute, has
said, “I don’t think you can read almost anything” into the
personal views of a solicitor general based on her representation of the United
States. Lincoln Caplan, an expert on solicitors general, recently
told The Washington Post, “It’s a mistake to assume that
every argument an SG makes on behalf of the government reflects her personal
legal philosophy.”

FACT: Kagan stated during her SG confirmation hearings that she will
represent the U.S.
government rather than follow her personal views. In response to
written questions submitted by senators as part of the confirmation process for
Kagan’s nomination as solicitor general, Kagan stated:
“I am fully convinced that I could represent all of these interests with
vigor, even when they conflict with my own opinions.”

FACT: Republican administrations have also argued against lawsuits
against foreign governments for terror, torture. In Republic
of Iraq v. Beaty, Gregory Garre, the solicitor general at the time
under President George W. Bush, argued on behalf of the administration that Iraq was immune from suit against American
citizens who were tortured and held hostage in Kuwait
and Iraq.
He argued that allowing the suit against Iraq
would “pose an ‘unusual threat to the national security and foreign policy
of the United States.’
” In a decision written by Justice Antonin Scalia, the Supreme Court
agreed, and held that Iraq
was immune from suit. Likewise, in Saudi
Arabia v. Nelson, the plaintiffs brought suit for injuries Scott
Nelson suffered due to torture inflicted upon him while under arrest in Saudi Arabia.
Kenneth Starr, as solicitor general, argued on behalf of the George H.W. Bush
administration that the Foreign Sovereign Immunities Act did not allow
jurisdiction over Nelson’s suit because their actions were not “based
upon” a commercial activity. He stated that (via Westlaw) “[t]he
commercial activity involved here — Saudi Arabia’s recruitment of Scott Nelson
to work at its overseas hospital — does not provide a basis for the
intentional injury and related spousal derivative claims that the Nelsons
assert in their complaint.” The Supreme Court agreed to dismiss the case.

[TOP]

Myth: Kagan lied to the Supreme Court to protect Saudi sponsors of terrorism

CLAIM: Kagan
lied
in
Supreme
Court
brief. Gateway Pundit’s Jim Hoft falsely claimed that it “[l]ooks like” Elena Kagan “lie[d] to the Supreme Court” in a brief she filed asking the court not to hear the appeal in a case against the Kingdom of Saudi Arabia. Quoting extensively from a post by Alec Rawls on the blog Error Theory, Hoft wrote: “Did Barack Obama’s radical court pick Elena Kagan lie to the Supreme Court in last year’s 9/11 case? Looks like it.” As evidence, Hoft cited Rawls’ false claim that Kagan lied in a brief asking the Supreme Court not to hear the appeal in a case brought against the Kingdom of Saudi Arabia by people who were injured in the 9-11 terrorist attacks. Specifically, Hoft quoted Rawls’ false claim that Kagan lied about a section of the Foreign Sovereign Immunities Act (FSIA).

REALITY:
Kagan’s
brief
accurately
described
the
law
governing
the
case. In fact, the statements from the brief that Hoft highlights are completely truthful. Kagan’s brief in Federal
Insurance
Co.
v.
Kingdom
of
Saudi
Arabia notes that all lawsuits filed in U.S. courts against foreign countries must be dismissed under the FSIA unless they satisfy one of the exceptions to that act. Kagan’s brief argues that none of the exceptions to the FSIA, including the “domestic tort exception,” was met. Kagan’s brief also correctly described the relevant Supreme Court case law on the application of the domestic tort exception to acts committed abroad.

FACT:
As
Kagan
stated,
the
Supreme
Court
has
said
that
domestic
effects
of
torts
committed
abroad
are
insufficient
to
allow
such
a
lawsuit
to
go
forward. Contrary to Hoft’s claim that “there were no ‘domestic effects’ at issue in Amerada,” the plaintiffs in Argentine
Republic
v.
Amerada
Hess
Shipping
Corp. did contend that the alleged tort had “domestic effects” and therefore should not be dismissed. And the Supreme Court specifically rejected that claim, as Kagan’s brief said. The court
stated that the fact that an alleged tort “may have had effects in the United States” was not sufficient to meet the tort exception found in 28
U.S.C.
§
1605(a)(5) (the same section of the FSIA that Kagan’s brief mentioned).

FACT:
All
judges
to
hear
the
case
have
agreed
that
it
should
be
dismissed. According to the decision by the U.S. Court of Appeals for the 2nd Circuit in Federal
Insurance
Co.
v.
Kingdom
of
Saudi
Arabia, the trial court dismissed the claims against the foreign governments, members of the Saudi royal family, and other defendants under the FSIA. The 2nd Circuit unanimously affirmed the trial court’s decision to dismiss these defendants. On June 29,
2009, the Supreme Court denied the plaintiff’s request to hear the case (an action that does not necessarily signal agreement with the lower court’s decision).

FACT:
Kagan’s
brief
is
in
accordance
with
briefs
filed
by
previous
solicitors
general:

• George
  W.
  Bush
  administration
  argued
  that
  Iraq
  should
  be
  immune
  from
  lawsuits.
  In 1990, Iraq was deemed a state sponsor of terrorism, but following the coalition invasion in 2003, Congress enacted legislation that authorized the president to waive Iraq’s liability under any provision creating a cause of action against a state sponsoring terrorism. In Republic
  of
  Iraq
  v.
  Beaty, Gregory Garre, the solicitor general at the time, filed a brief on behalf of the George W. Bush administration arguing that Iraq was immune from a suit by American citizens who were tortured and held hostage in Kuwait and Iraq. He argued that allowing suit against Iraq would “pose an ‘unusual and extraordinary threat to the national security and foreign policy of the United States.’ ” In a decision written by Justice Antonin Scalia, the Supreme Court agreed and held that Iraq was immune from suit.

• George
  H.W.
  Bush
  administration
  argued
  that
  Saudi
  Arabia
  should
  be
  immune
  from
  suit. In Saudi
  Arabia
  v.
  Nelson, the plaintiffs brought suit for injuries Scott Nelson suffered due to torture inflicted upon him while under arrest in Saudi Arabia. Kenneth Starr, as solicitor general, argued on behalf of the George H.W. Bush administration that the FSIA did not allow jurisdiction over Nelson’s suit because their actions were not “based upon” a commercial activity. He stated that (via Westlaw) “[t]he commercial activity involved here — Saudi Arabia’s recruitment of Scott Nelson to work at its overseas hospital — does not provide a basis for the intentional injury and related spousal derivative claims that the Nelsons assert in their complaint.” The Supreme Court agreed to dismiss the case.

[TOP]

Myth: Kagan accepted a gift from a Saudi prince that brought Shariah to Harvard

CLAIM: By supposedly allowing Harvard to accept a gift from
a Saudi prince, Kagan took part in a “concerted and ominous campaign
under way to bring Shariah to America.” Conservative media, including Frank Gaffney and The Washington Times article,
Byron York reported on allegations made by two House Republicans in 1999 that
as associate White House counsel, Kagan supposedly defended a White House staff
member who allegedly leaked information to logging protesters in the Warner
Creek area of Oregon.

REALITY: Decade-old allegations stem from a “politically
motivated” report by two discredited GOP representatives. The
task force was
criticized by Democrats for “failing to meet even minimum standards of
objectivity,” and even Ed Whelan has said the allegations are “highly
speculative.” According to the Clinton White House, which said Kagan’s
actions in the matter were “above reproach,” the task force never
even asked to speak to Kagan. One of the Republican members of the task force
is a discredited conspiracy theorist, while the other member and the committee
chair who appointed them have been tarnished by numerous ethics scandals.

FACT: Whelan: Allegations were “highly speculative.” In
an April 7 National Review Online post,
Whelan wrote that “the allegations of wrongdoing by Kagan … strike me as
highly speculative.”

FACT: Republicans did not raise matter during Kagan’s solicitor
general confirmation. If Republicans actually believed the 1999 task
force report was evidence that Kagan somehow acted improperly, they presumably
would have raised the issue during her confirmation for solicitor general in
2009. But at no point during Kagan’s February 10, 2009, Senate hearing, the written
questions following the hearing, or the March 19, 2009, floor
debate on her nomination did any senator — Republican or Democratic –
address Warner Creek. York
explained this by stating: “The issue also stayed largely out of sight in
2009, when Kagan was confirmed to be the nation’s Solicitor General. Few
Republicans even knew about the story, and besides, Kagan was up for a job in
which she would serve at the pleasure of the president — not a lifetime
appointment like a seat on the Court of Appeals.”

FACT: Task force composed solely of Republicans. The task
force, appointed
by then-House Resources Chairman Don Young (R-AK), was composed of then-Rep.
Jim Gibbons (R-NV) and then-Rep. Chris Cannon (R-UT). Rep. George Miller
(D-CA), then the ranking member of the House Resources Committee, reportedly refused to
“legitimize” its actions by appointing a Democratic member to it.

FACT: Democrats criticized task force as “politically
motivated.” Miller reportedly
“criticized the creation of the task force for prolonging a matter the
committee already had spent more than a year investigating, excluding Democrats
from the reasoning behind holding more hearings, and issuing subpoenas for
information without holding committee votes.” He also reportedly said
that “the yearlong investigation is politically motivated, unfair and
violates various procedural rules of the committee.” A White House
spokesman reportedly stated
in 1999 that “[t]his report was not balanced in any way.”

FACT: Task force reportedly didn’t even ask to question Kagan.
The Washington Times reported on October 14, 1999, that White House
spokesman Barry Toiv said of the allegations against Kagan: “[H]er
participation in this issue was so above reproach that this partisan
Republican-only task force never even asked to question her during their
inquiry. It’s obvious that they are raising her name now only because she has
been nominated to the federal bench. Professor Kagen [sic] is a superb scholar
and will make an excellent federal judge.”

FACT: Task force member Cannon is a discredited conspiracy theorist.
According to The Sunday Times, on the advice of Cannon, his
brother-in-law Robert Fox offered
$10,000 to Oxford professor Peter Millican to use a computer software program
to prove that Obama’s autobiography, Dreams From My Father, was
actually written by William Ayers. After Millican’s initial results indicated
that the charge was “very implausible,” and Millican demanded that
“the results had to be made public, even if no link to Ayers was proved,
interest waned.”

FACT: Task force chair Gibbons linked to numerous ethics scandals. In
2006, Gibbons was accused
of sexually assaulting a woman in a Las
Vegas parking lot. Criminal charges were never filed,
but a civil suit is pending.
Gibbons also reportedly helped
secure a no-bid contract for a company that hired Gibbons’ wife as a
consultant.

FACT: Task force appointed by Don Young, who has been plagued by
ethics scandals. Young has numerous ties to former lobbyist Jack
Abramoff, who in 2006 pleaded
guilty “to fraud, tax evasion and conspiracy to bribe public
officials.” He is reportedly
under
investigation in connection with the scandal surrounding VECO Corp., an Alaska
oil services company. In 2008, Young stepped down from his leadership position on the House
Resources Committee, reportedly at the insistence of his GOP colleagues due to
ethics allegations against him.

[TOP]

Myth: As SG, Kagan indulged her own views rather than
defending the law

CLAIM: As SG, Kagan “indulged her own ideological views”
rather than upholding laws “she is dutybound to defend.” In
a May 10 National Review Online blog
post, Whelan claimed that as solicitor general, Kagan had “indulged
her own ideological views” on gay rights by “act[ing] to undermine
the Don’t
Ask, Don’t
Tell law and the Defense
of Marriage Act that she is dutybound to defend.” The post linked to a
prior item Whelan wrote in which he attacked
the Department of Justice for abandoning “strong grounds for defending
DOMA” in asserting that it “does not believe that DOMA is rationally
related to any legitimate government interests in procreation and child-rearing.”
The May 10 post also linked to two prior
items
attacking Kagan for not appealing a case
related to the “Don’t Ask, Don’t Tell” policy to the Supreme Court.

REALITY: Kagan was guided by DOJ precedent, not “her own
ideological views.” In both of the cases Whelan cites, the DOJ
followed precedent in its decisions. It is not unprecedented for the DOJ to
abandon arguments it has previously made; the Bush administration did so in the
Second Amendment case of United
States v. Emerson. There is also significant precedent backing the decision
not to appeal the “Don’t Ask, Don’t Tell” case to the Supreme Court, since
the lower court decision was not yet finalized. The Supreme Court has repeatedly
declined to hear cases prior to a “final judgment,” and the solicitor
general’s office has repeatedly argued that the Supreme Court should not hear cases
before a final ruling from lower courts. Furthermore,
Kagan has defended the constitutionality of “Don’t Ask, Don’t Tell” in a Supreme
Court brief.

FACT: It’s not unprecedented for DOJ to abandon arguments like it did
in the DOMA case; the Bush administration did so in a Second Amendment case.
In the 2001 case of United States v. Emerson — a criminal federal gun crime
prosecution — the U.S. Court of Appeals rejected the argument advanced by the federal
government that “stare decisis requires us to reverse the district court’s
embrace of the individual rights model” of the Second Amendment and held that
the Second Amendment did cover individual rights. The 5th Circuit nevertheless held
that the statute at issue did not violate the Second Amendment. Subsequently, the
defendant appealed to the Supreme Court. In its brief asking the Court not to hear the case, the Bush Justice
Department abandoned the argument that the Second Amendment did not cover individual
rights.

Attorney General Ashcroft: Justice is not best achieved “by making
any available argument that might win a case.” In a letter to U.S.
Attorneys directing them not to argue that the Second Amendment did not protect
individual rights, Ashcroft wrote:

Justice is best achieved, not by making any available
argument that might win a case, but by vigorously enforcing federal law in a manner
that heeds the commands of the Constitution.

FACT: Some courts have rejected the argument that same-sex marriage is
related to “government interests in procreation and child-rearing.” Some
state courts have explicitly rejected the argument that procreation and child-rearing
bear any relationship to same-sex marriage bans. For instance, in Goodridge
v. Department of Public Health, the Massachusetts Supreme Judicial Court stated
that the Massachusetts same-sex marriage ban was
not based on a procreation rationale because Massachusetts law “contains no requirement
that the applicants for a marriage license attest to their ability or intention
to conceive children by coitus. Fertility is not a condition of marriage, nor is
it grounds for divorce.”

FACT: 9th Circuit “Don’t Ask, Don’t Tell” decision was not
final. The 9th Circuit ruling referred to by Whelan did not find “Don’t
Ask, Don’t Tell” unconstitutional, but rather sent the case back to trial court
in order to determine whether or not the plaintiff’s constitutional rights had been
violated.

FACT: DOJ followed longstanding precedent in deciding not to appeal case.
According to Whelan,
Attorney General Eric Holder said that the case was not appealed to the Supreme
Court based in part “on the longstanding presumption against Supreme Court
review of” cases in which lower courts have not yet issued a final judgment.
Indeed, the Supreme Court has repeatedly
declined to hear cases prior to “final judgment” from lower courts,
and the solicitor general’s office has argued in both Republican
and Democratic
administrations that the Supreme Court should decide not to hear cases in which
decisions by the lower court were not final. Furthermore, even after Kagan’s decision
not to appeal the case, the Justice Department went on to vigorously defend the
“Don’t Ask, Don’t Tell” policy as late as April 26, 2010, in a brief for
the case Log Cabin Republicans v. United States.

FACT:
Kagan has defended the constitutionality of “Don’t Ask, Don’t Tell” in a Supreme
Court brief. Whelan’s
speculation that Kagan did not appeal the 9th Circuit’s decision in order to
“duck taking a public position” on “Don’t Ask, Don’t
Tell” is completely undermined by the fact that Kagan did “take
a public position” on behalf of the Obama administration on that issue. Kagan
filed a brief asking
the Supreme Court not to hear the appeal in Pietrangelo
v. Gates,
a case challenging the constitutionality of “Don’t Ask, Don’t Tell.” In the
brief, Kagan defended the lower court’s finding that the policy did not violate
the Constitution:

Petitioner
contends (Pet. i, 5-6) that this Court should grant a writ of certiorari to
determine whether 10 U.S.C. 654 violates his substantive due process, equal
protection, and free speech rights. The decision of the court of appeals is
correct and does not conflict with any decision of this Court.

[TOP]

Myth: Kagan is avoiding “traditional interviews”
with the press

CLAIM: WH online video featuring Kagan “in her own words” was
a ploy “to avoid traditional interviews.” Fox News’ Fox &
Friends criticized
the White House for releasing an online video featuring Kagan “in her own words,”
claiming that the interview should have been conducted “with a journalist”
and that the White House is using the Internet “to avoid traditional interviews.”

FACT: “Standard practice” for White House to shield nominees
from interviews before confirmation. The Washington Examiner‘s
Julie Mason explained
that “[i]t’s standard practice around the White House (going back administrations)
for any big nominee pending confirmation to stay away from interviews and unscripted
public utterances until the voting is over. It keeps things tidy and minimizes variables.
No biggie.”

CBS News: “[I]t seems to be unprecedented for the nominee to be heard
from at all before the confirmation hearings.” A CBS News article
on how the video “rile[d] reporters” stated that, “[s]till, it’s
worth noting that it seems to be unprecedented for the nominee to be heard from
at all before the confirmation hearings, other than in the initial introduction
and in brief photo ops with senators.”

[TOP]

MYTH: Kagan supports holding terror suspects “without due process”

CLAIM: Kagan agreed “under oath” that
suspected terrorists can be “scooped up off the street, held without a
trial, due process, indefinitely.” On his radio show, Beck suggested that the Obama administration will declare tea parties to be terror groups and stated
that the administration is “pushing people to be scooped up off the
street, held without a trial, due process, indefinitely.” Beck further
stated that “Kagan agreed with it under oath.” He later stated: “If
you’re funding radicalized Islam, you’re suspected — that’s the key
word — suspected of funding a terror organization, you can be held
without due process indefinitely.” Beck repeated the claim a week later.

FACT: Kagan made clear that “substantial due process” was necessary when detaining suspected terrorists. In fact,
Kagan testified that, when detaining terrorist suspects indefinitely as
enemy combatants during a time of war, a transparent legal procedure
that included “substantial due process” has to be used. During her
February 10, 2009, confirmation hearing
as solicitor general before the Senate Judiciary Committee, Kagan
agreed with the proposition that the U.S. government could legally hold
suspected terrorists as enemy combatants indefinitely. She further
agreed that the process for making a determination that a detainee is
an enemy combatant “has to have substantial due process” and that an
“independent judiciary” should be involved in making that decision.

[TOP]

Myth: Kagan believes that foreign law trumps constitutional law

CLAIM: Kagan dropped constitutional law from Harvard Law’s
curriculum and believes foreign law trumps American law and the U.S
Constitution. The Washington Times claimed that under
Kagan, “Harvard dropped constitutional law as a required course for
graduation, while adding a requirement for a course in
‘International/Comparative Law.’ ” The Times also asserted
that Kagan’s “views don’t comport” with the judicial principle that
“foreign law should not even ‘influence’ a U.S. court decision.” From a
May 25 Washington Times for example
- a constitutional law class was not required. Harvard Law JD degree
requirements included “required [first-year] courses in Criminal Law,
Contracts, Civil Procedure, Torts, and Property,” “Legal Reasoning and
Argument (LRA),” “a first-year elective course; a course in
professional responsibility; fifty-two credits in second- and
third-year elective courses; and a satisfactory piece of written
work.” As is the case now, courses in both the second and third year were all elective.

FACT: The curriculum changes were unanimously approved by Harvard Law faculty. The curriculum changes Kagan instituted as dean, which were unanimously approved by the Harvard Law School faculty, added
“new first-year courses in international and comparative law,
legislation and regulation, and complex problem solving” and condensed
the “traditional first-year curriculum (contracts, torts, civil
procedure, criminal law, and property).”

FACT: The courses added were designed to improve upper-level learning in constitutional law
and other areas. According to Kagan, the addition
of a 1L “Legislation and Regulation” requirement, was designed, in
part, to “naturally lead into, and enable students to get more out of,
advanced courses in the 2L and 3L years, on legislation, administrative
law, a wide range of regulatory subjects (e.g., environmental law,
securities law, telecommunications law), and constitutional law.” Kagan
has taught constitutional law at Harvard herself, and has earned praise from former Reagan Solicitor General Charles Fried, a constitutional law professor who taught at Harvard while Kagan was dean.

FACT: Supreme Court justices consider foreign practices in some situations. The
Supreme Court has a history of citing decisions by foreign courts in
their rulings. A majority of the Supreme Court recently reaffirmed the
relevance of international law in notified the Supreme Court
that, in light of her Supreme Court nomination, she was appointing her
deputy, Neal Katyal to be acting Solicitor General and would not be
participating in future Supreme Court cases. The brief Hitchens
attacked — which the Solicitor General’s office filed after Kagan had
recused herself — does not bear Kagan’s name.

FACT: None of the parties asked that the Supreme Court not to treat the Vatican as a sovereign state.
In his article, Hitchens claimed that the argument that “the Holy See
is in effect a sovereign state” is a controversial view. But the Republic of Iraq v. Beaty,
Gregory
Garre, the solicitor general at the time, argued on behalf of the
administration that Iraq was immune from suit against American citizens
who were tortured and held hostage in Kuwait and Iraq. He argued that
allowing suit against Iraq would “pose an ‘unusual threat to the
national security and foreign policy of the United States.‘” In a decision written by Justice Antonin Scalia, the Supreme Court agreed, and held that Iraq was immune from suit.

George H.W. Bush administration argued that Saudi Arabia should be immune from suit. In Saudi Arabia v. Nelson,
the plaintiffs brought suit for injuries Scott Nelson suffered due to
torture inflicted upon him while under arrest in Saudi Arabia. Kenneth
Starr, as solicitor general, argued on behalf of the George H.W. Bush
administration that the Foreign Sovereign Immunities Act did not allow
jurisdiction over Nelson’s suit because their actions were not “based
upon” a commercial activity. He stated that (via Westlaw), “[t]he
commercial activity involved here — Saudi Arabia’s recruitment of
Scott Nelson to work at its overseas hospital — does not provide a
basis for the intentional injury and related spousal derivative claims
that the Nelsons assert in their complaint.” The Supreme Court agreed
to dismiss the case.

[TOP]

Myth: Kagan supports cloning
human beings

CLAIM: Kagan has shown “support
for cloning human beings.” On BigGovernment.com, Ken Blackwell editorial, The Wall Street Journal counseled Kagan to recuse herself from “sitting in judgment” on a case brought by Florida and other states against the health care reform law and gave two reasons for her recusal. First, the editorial speculated that the litigation “must have come up” at Justice Department meetings Kagan attended and asserted: “We doubt that Ms. Kagan would have stayed mum” at that meeting. The Journal called for senators to submit written questions to Kagan about “whether the legal challenges to ObamaCare ever arose in her presence at Justice.” Second, the editorial argued that because Kagan testified about the limits of the Commerce Clause at her hearing, she must recuse herself from the health care litigation.

FACT: Kagan said she never offered an opinion on the constitutionality of the health care reform legislation. Responding to a series of written questions on health care reform recusal — issued by Republican senators following theJournal editorial — Kagan wrote that she had not been asked her opinion about legal or constitutional issues related to any proposed health care legislation or to potential litigation resulting from such legislation. She also wrote that she had not offered any views or comments on those issues.

FACT: Kagan said she did not offer any opinion on the litigation seeking to have the health care reform law declared unconstitutional. Kagan also stated that she did not participate in the specific case that the Journal mentioned: “I did not participate in Florida v. U.S. Department of Health and Human Services, so I do not have any firsthand knowledge of the filings in that case.” Additionally, she wrote: “In Florida v. U.S. Department of Health and Human Services, I neither served as counsel of record nor played any substantial role. … Therefore, I would consider recusal on a case by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues and, if appropriate, with experts on judicial ethics.”

FACT: Senators had ample opportunity to question Kagan during nomination process, yet none apparently thought health care recusal question was important enough to ask. Senators had twofull days to ask Kagan questions at her hearing, and six Republican senators asked Kagan follow-up United States v. Lopez, United States v. Morrison, and Gonzales v. Raich, five of the eight current Supreme Court justices weighed in on the limits of the Commerce Clause. For instance, in Lopez, the majority opinion — which was joined by current Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas — stated:

Consistent with this structure, we have identified three broad categories of activity that Congress may regulate under its commerce power. Perez v. United States, supra, at 150; see also Hodel v. Virginia Surface Mining & Reclamation Assn., supra, at 276-277. First, Congress may regulate the use of the channels of interstate commerce. See, e.g., Darby, 312 U. S., at 114; Heart of Atlanta Motel, supra, at 256 (” `[T]he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.’ ” (quotingCaminetti v. United States, 242 U.S. 470, 491 (1917)). Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. See, e.g.,Shreveport Rate Cases, 234 U.S. 342 (1914); Southern R. Co. v. United States, 222 U.S. 20 (1911) (upholding amendments to Safety Appliance Act as applied to vehicles used in intrastate commerce); Perez, supra, at 150 (“[F]or example, the destruction of an aircraft (18 U.S.C. § 32), or . . . thefts from interstate shipments (18 U.S.C. § 659)”). Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, Jones & Laughlin Steel, 301 U. S., at 37, i.e.,those activities that substantially affect interstate commerce. Wirtz, supra, at 196, n. 27. <

The majority opinion in Gonzales v. Raich — which was joined by current Justices Ruth Bader Ginsburg, Stephen Breyer, and Kennedy — stated:

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U.S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937). Only the third category is implicated in the case at hand.

As an appellate court judge, Samuel Alito weighed in on the Commerce Clause in United States v. Rybar, a case dealing with the constitutionality of the federal ban on machine gun possession. In a dissent from a decision upholding the statute, Alito wrote:

Was United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful limits on congressional power?

The statutory provision challenged in this case, the portion of 18 U.S.C. § 922(o) that generally prohibits the purely intrastate possession of a machine gun, is the closest extant relative of the statute struck down in Lopez.

[...]

In Lopez, the Supreme Court identified “three broad categories” of legislation permitted under the Commerce Clause: (1) regulation of “the use of the channels of interstate commerce,” (2) regulation and protection of “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities,” and (3) regulation of “activities that substantially affect interstate commerce.”

In an opinion she wrote in United States v. Giordano as an appellate court judge, Sonia Sotomayor also weighed in on how the Supreme Court interpreted the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

John Roberts also extensively discussed how the Supreme Court interpreted the Commerce Clause at his Supreme Court confirmation hearing. For instance, Roberts and Sen. Charles Schumer had the following exchange:

SCHUMER: OK. Well, there’s a third case that I’d like to bring up, and it’s the third leg of the framework in a lot of ways, and that’s Wickard v. Filburn.

Do you agree with the principle that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities, quote, exert a substantial economic effect on interstate commerce ?

In other words, can Congress regulate commerce that doesn’t involve an article traveling across state lines?

ROBERTS: Well, that’s obviously the court’s holding in Wickard against Filburn, and reaffirmed recently to a large extent in the Raich case.

But I would say that because it has come up again so recently in the Raich case, that it’s an area where I think it’s inappropriate for me to comment on my personal view about whether it’s correct or not.

That’s unlike an issue under Marbury v. Madison or Brown v. Board of Education, which I don’t think is likely to come up again before the court.

This was just before the court last year. And so I should, I think, avoid commenting on whether I think it’s correct or not.

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Myth: Kagan said the Constitution changes with the times

CLAIM: Kagan “Says Constitution Changes with Times.” Fox News’ website The Fox Nation ran a headline that stated Kagan “Says Constitution Changes with Times” — referring to comments she made during her Supreme Court confirmation hearing.

REALITY: Fox Nation’s claim that Kagan “says Constitution changes with times” is simply untrue. In the video Fox Nation embeds as proof of its claim, Kagan actually says that there are specific clauses of the Constitution — like the requirement that senators be at least 30 years old — that the framers of the Constitution meant to be applied in exactly the same way no matter how society changed. And there were other phrases that were of “a more general kind and those provisions were meant to be interpreted over time to be applied to new situations and new factual contexts.” Here is what Kagan actually said in response to questions from Sen. Patrick Leahy (D-VT) in the video embedded on Fox Nation:

KAGAN: Well, Justice Leahy, the framers were incredibly wise men and if we always remember that, we’ll do pretty well. Because part of their wisdom was that they wrote the Constitution for the ages. And this was very much in their minds. This was part of their consciousness. You know, even that phrase that I quoted yesterday from the preamble of the Constitution I said the Constitution was to secure blessings of liberty. I didn’t quote the next part of that phrase. It said blessings of liberty for themselves and their posterity. So they were looking towards the future. They were looking generations and generations and generations ahead and knowing that they were writing a Constitution for all that period of time and that life and that circumstances and that the world would change just as it had changed in their own lives very dramatically, so they knew all about change.

And they wrote a Constitution, I think, that has all kinds of provisions in it. So there are some that are very specific provisions. It just says what you’re supposed to do and how things are supposed to work. So it says to be a senator, you have to be 30 years old. And that just means you have to be 30 years old. And it doesn’t matter if people mature earlier. It doesn’t matter if people’s life spans change. You just have to be 30 years old because that’s what they wrote, and that’s what they meant, and that’s what we should do.

But there are a range of other kinds of provisions in the Constitution of a much more general kind and those provisions were meant to be interpreted over time to be applied to new situations and new factual contexts.

[TOP]

Myth: Kagan’s statement that she wouldn’t rely on natural rights is controversial

CLAIM: Kagan’s comment that she wouldn’t rely on natural rights makes her “iffy on the Declaration of Independence.” National Review Online’s Carrie Severino attacked Elena Kagan for saying at her hearing that natural rights are, in Severino’s words “irrelevant to her work as a judge because she would only be interpreting the Constitution and the laws of this country.” During her hearing, Kagan hearing:

As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don’t see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.

[TOP]

Myth: Kagan’s Commerce Clause comments were extreme

CLAIM: Kagan’s Commerce Clause comments make her “far left.” Fox News’ Stuart Varney advanced the baseless claim that Elena Kagan’s statement that Congress’ power to write laws regulating interstate commerce “has been interpreted broadly” makes her “far-left.” A July 1 Wall Street Journal editorial and a July 1 New York Post op-ed by Cato’s Michael Tanner similarly advanced the claim.

REALITY: Kagan’s statement that the Commerce Clause power is “broad” actually put her in the Supreme Court mainstream. In reality, Kagan’s comment that “The Commerce Clause has been interpreted broadly” — which she made during her June 29 confirmation hearing — is in accord with an opinion by conservative Justice Antonin Scalia and a 2005 ruling by a majority of the Supreme Court.

FACT: Kagan: “The Commerce Clause has been interpreted broadly.” During Kagan’s June 29 confirmation hearing, Sen. Tom Coburn (R-OK) asked whether a hypothetical law that required Americans to “eat three vegetables and three fruits every day” would “violate the Commerce Clause.” Kagan replied that it was a “dumb law,” but that “the question of whether it’s a dumb law is different from whether the question — of whether it’s constitutional.” She later added:

[I]t is absolutely the case that the judiciary’s job is to, in Marbury v. Madison‘s famous phrase, to say what the law is, and to make sure — I think I’ve talked about it as policing the constitutional boundaries and making sure that Congress doesn’t go further than the Constitution says it can go, doesn’t violate individual rights, and also doesn’t act outside its enumerated authorities. We live in a government in which Congress’ authorities are enumerated in Article I of the Constitution, and Congress can’t act except under one of those heads of authority. Now, as I talked about it with Senator Cornyn, the Commerce Clause has been interpreted broadly. It’s been interpreted to apply to regulation of any instruments or instrumentalities or channels of Congress. But it’s also been applied to anything that would substantially affect interstate commerce. It has not been applied to noneconomic activities, and that’s the teaching of Lopez and Morrison, that the court — that the Congress can’t regulate noneconomic activities, especially to the extent that those activities have traditionally been regulated by the states. And I think that that would be the question that the court would ask with respect to any case of this kind.

FACT: Supreme Court has upheld a variety of federal laws under the Commerce Clause. The Supreme Court has upheld a wide variety of laws under the Commerce Clause, including sections of the Civil Rights Act of 1964 and a regulation restricting the amount of wheat a person could grow even if used purely for consumption on the grower’s own farm.

FACT: Supreme Court majority upheld Congress’ Commerce Clause power to make it a crime to possess marijuana grown for personal consumption. In the 2005 case of Gonzales v. Raich, the Supreme Court upheld Congress’ power to outlaw the possession of medicinal marijuana that people grow for personal consumption. The case was brought by two plaintiffs, one of whom “cultivates her own marijuana, and ingests the drug in a variety of ways including smoking and using a vaporizer.” Justice John Paul Stevens, writing for a five-justice majority that included Justice Anthony Kennedy, stated that the law was a valid exercise of Commerce Clause power as part of its comprehensive regulation of the market for marijuana.

FACT: Justice Scalia also voted to uphold Congress’ power to outlaw marijuana grown for personal consumption. In a concurrence in Gonzales v. Raich, Justice Antonin Scalia also agreed that the marijuana law was constitutional. He also affirmed that Congress has the power to regulate “activities that ‘substantially affect’ interstate commerce.” He stated that Congress has the power to regulate activities that substantially affect interstate commerce under the Necessary and Proper Clause of the Constitution. Scalia wrote:

[A]s this Court has acknowledged since at least United States v. Coombs, 12 Pet. 72 (1838), Congress’s regulatory authority over intrastate activities that are not themselves part of interstate commerce (including activities that have a substantial effect on interstate commerce) derives from the Necessary and Proper Clause. Id., at 78; Katzenbach v.McClung, 379 U.S. 294, 301–302 (1964); United Statesv. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942); Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E. C. Knight Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting). And the category of “activities that substantially affect interstate commerce,” Lopez, supra, at 559, is incomplete because the authority to enact laws necessary and proper for the regulation of interstate commerce is not limited to laws governing intrastate activities that substantially affect interstate commerce. Where necessary to make a regulation of interstate commerce effective, Congress may regulate even those intrastate activities that do not themselves substantially affect interstate commerce.

[TOP]

MYTH: Sotomayor’s
gun rights testimony casts doubt on Kagan’s honesty

CLAIM: Sotomayor testified
untruthfully on gun rights. Conservative media
have falsely
suggested that
Justice Sonia Sotomayor testified untruthfully
about her views on the Second Amendment and have used that false allegation to
suggest that people should not believe Elena Kagan’s testimony during her
confirmation hearing. The
false allegation is based on (1) the fact that Sotomayor testified at her
confirmation hearing that she “accepted” the Court’s earlier decision that the
Second Amendment created an individual right and (2) the fact that as a Supreme
Court justice, she dissented from a case that extended gun rights to states and
local governments.

REALITY:
There is no inconsistency between Sotomayor’s
testimony and the dissent she joined on gun rights
issues. In fact, there is no
inconsistency between Sotomayor’s testimony and the
dissent she joined in June 2010 on gun rights issues. The dissent she
joined was critical of the reasoning in the Court’s 2008 majority opinion
in District
of Columbia v. Heller — the case that found that the Second
Amendment protects an individual right to bear arms. But the dissent did not
call for Heller to be overruled. Rather, the opinion stated
that the individual right to bear arms should not be applied to state and local
laws. Moreover, the context of Sotomayor’s testimony at her
confirmation hearing makes clear that she was saying she “accepted” the decision
as a federal appellate judge — the job she held at the time. Sotomayor was not saying that
she would vote to uphold Heller as a Supreme Court justice. Indeed, when
discussing gun rights issues, Sotomayor testified that she
“would not prejudge any question that came before me if I was a justice on the
Supreme Court.”

FACT:
Unlike Sotomayor,
Justice Thomas reversed himself on a position he took as a
nominee. Unlike Sotomayor, Justice Clarence
Thomas has specifically reversed himself on at least one position that he took
as a nominee. During his 1991 confirmation hearings (available here),
Thomas stated: “My view is that there is a right to privacy in the 14th
Amendment.” And Thomas specifically testified that one of the concurring
justices took the right approach in the landmark Griswold
v. Connecticut case — which struck down a ban on married
couples purchasing contraceptives — was correct, saying “I believe the approach
that Justice Harlan took in Poe v. Ullman and again reaffirmed in Griswold in determining the — or assessing the right
of privacy was an appropriate way to go.” But in a dissent in Lawrence
v. Texas, the case that struck down
Texas’ sodomy statute, Thomas took the opposite opinion, endorsing the
dissenter’s view in Griswold that there is no “general right of
privacy.”

FACT:
At his hearing, John Roberts explicitly refused to answer a question on his
“views about the Second Amendment.” From Roberts’ testimony
at his Supreme Court confirmation hearing:

SEN.
RUSS FEINGOLD (D-WI): Let’s go to something else then. I’d like to hear your
views about the Second Amendment, the right to bear arms. This is an amendment
where there’s a real shortage of jurisprudence.

You
mentioned the Third Amendment where there’s even less jurisprudence, but the
Second Amendment’s close. So I think you can maybe help us understand your
approach to interpreting the Constitution by saying a bit about
it.

The
Second Amendment raises interesting questions about a constitutional
interpretation. I read the Second Amendment as providing an individual right to
keep and bear arms as opposed to only a collective right. Individual Americans
have a constitutional right to own and use guns. And there are a number of
actions that legislatures should not take in my view to restrict gun
ownership.

FEINGOLD: The modern
Supreme Court has only heard one case interpreting the Second Amendment. That
case is U.S. v. Miller. It was heard back in 1939. And the court indicated that
it saw the right to bear arms as a collective right.

In a
second case, in U.S. v. Emerson, the court denied cert and let stand the lower
court opinion that upheld the statute banning gun possession by individuals
subject to a restraining order against a second amendment
challenge.

The
appeals court viewed the right to bear arms as an individual right. The Supreme
Court declined to review the Appeals Court decision.

So
what is your view of the Second Amendment? Do you support one of the other views
of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I
mean, you’re quite right that there is a dispute among the circuit courts. It’s
really a conflict among the circuits.

The
5th Circuit — I think it was in the Emerson case, if I’m remembering it
correctly — agreed with what I understand to be your view, that this protects
an individual right. But they went on to say that the right was not infringed in
that case. They upheld the regulations there.

The
9th Circuit has taken a different view. I don’t remember the name of the case
now. But a very recent case from the 9th Circuit has taken the opposite view
that it protects only a collective right, as they said.

In
other words, it’s only the right of a militia to possess arms and not an
individual right.

Particularly since you
have this conflict — cert was denied in the Emerson case — I’m not sure it’s
been sought in the other one or will be. That’s sort of the issue that’s likely
to come before the Supreme Court when you have conflicting
views.

I know
the Miller case side-stepped that issue. An argument was made back in 1939 that
this provides only a collective right. And the court didn’t address that. They
said, instead, that the firearm at issue there — I think it was a sawed-off
shotgun — is not the type of weapon protected under the militia aspect of the
Second Amendment.

So
people try to read the tea leaves about Miller and what would come out on this
issue. But that’s still very much an open issue.

FEINGOLD: I understand
that case could come before you. I’m wondering if you would anticipate that in
such a case that a serious question would be: Which interpretation is
correct?

ROBERTS: Well, anytime
you have two different courts of appeals taking opposite positions, I think you
have to regard that as a serious question. That’s not expressing a view one way
or the other. It’s just saying, “I know the 9th Circuit thinks it’s only a
collective right. I know the 5th Circuit thinks it’s an individual right. And I
know the job of the Supreme Court is to resolve circuit conflicts.” So I do
think that issue is one that’s likely to come before the
court.

[TOP]

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