On June 28, CNN had on conservative blogger and CNN contributor Erick Erickson to discuss the first day of Elena Kagan's Supreme Court confirmation hearing. If you don't know Erick Erickson's history of making incendiary, sexist, and racially charge statements, perhaps you know him as the guy who called Supreme Court Justice David Souter a "goat fucking child molester." Today, Erickson continued to prove that he has no business being a commentator on Supreme Court issues.

When CNN host Rick Sanchez challenged Erickson on the conservative myth that Kagan is anti-military, Erickson claimed that Kagan “went further” than Harvard Law School's stated policy when she restricted military recruiters' access to the Office of Career Services. Unfortunately for him, the “exact details” of how Kagan “went further” escaped him (perhaps because his claim is just not true):

SANCHEZ: What about the accusations that she's anti-military because she didn't let some of the recruiters there at Harvard come on. When in actuality we checked into this today, it sounds to me like she wasn't creating policy there, she was following the strategy or the policy that was already set at Harvard, wasn't she?

ERICKSON No, that's not exactly right, and I realize that some groups on the left like Media Matters have been trying to spin it that way, but in fact what happened was, when the Supreme Court issued the -- one of the lawsuits -- I forget the exact details -- but Elena Kagan jumped on this. She went further than what the policy had been the moment she got in a position to do it. So yes, she kept the policy in place but she took it a step further the moment she got in position to do it. That's given some of the people in the military real pause.

In fact, Kagan did not go further than the policy that had previously been in place. Harvard's anti-discrimination policy had been in effect long before Kagan became dean. Indeed, according to an op-ed by Kagan's predecessor as dean, Robert C. Clark, Kagan applied an anti-discrimination policy that was put in place in 1979. And the law school's policy of banning its Office of Career Services from working with military recruiters had also been in place for years:

Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School's Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on. For years, the U.S. military, because of its “don't ask, don't tell” policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

Clark added that the military was granted an exception to the anti-discrimination policy in 2002 when the federal government threatened funding for Harvard University and allowed to work with OCS and that Kagan continued to grant this exception to the military upon becoming dean. Clark also stated:

In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools' First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit's decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to “don't ask, don't tell.”

As legal commentators Tom Goldstein and Stuart Taylor pointed out, Harvard's policy, in Taylor's words, “did not single out military recruiters for disfavored treatment. Rather, it applied to them a longstanding law school rule denying any employer that discriminated against openly gay people access to the career services office.” Taylor also noted that Kagan did not break the law for the simple reason that the statute at issue did not direct Kagan to do anything. From Taylor's blog post:

The claim that Kagan has been hostile to the military is confounded by evidence that -- at the same time that she was enforcing the law school's antidiscrimination rules against recruiters -- she also praised the military as a “deeply honorable” and “noble” profession and took extraordinary pains to honor students who had served or planned to serve.

And the claim that she “defied” a federal law called the Solomon Amendment -- which provides that educational institutions should be stripped of federal funding unless they give military recruiters the same assistance and access to students as other employers -- reflects misunderstanding of how the amendment works.

[...]

And even under the Bush-Supreme Court interpretation of the Solomon Amendment, it was arguably impossible for Kagan to “defy” the law.

That's because the amendment -- a noncriminal provision -- does not purport to make it illegal for educational institutions or the people who run them to disfavor military recruiters. Nor does the amendment make it illegal for them to accept federal funds while disfavoring military recruiters. Instead, the Solomon Amendment appears to rely solely on economic incentives to force educational institutions to give military recruiters equal access.

And despite Erickson's claim that her actions as dean have “given some of the people in the military real pause,” Harvard Law veterans have said that Kagan “has great respect for the military.”

But Erickson continued to struggle to make charges against Kagan stick, saying that Kagan's writings on the First Amendment are “downright spooky.” Erickson said:

ERICKSON: But the big issue here is, I think is probably the First Amendment. Some of the things she's written in the past are downright spooky. People in the media, bloggers like myself should be a little concerned that if the government just wants to do something because its making people feel upset if they don't, all of a sudden the First Amendment has no meaning.

While I cannot decipher what exactly Erickson is saying, the idea that Kagan is somehow anti-free speech or that anyone should be “spook[ed]” by her First Amendment writings is ridiculous. 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.” Further, 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.”

It is clear that Erickson did not do his homework before spouting these debunked claims about Kagan.