CBS News article on "early conservative reaction" to Kagan's nomination is filled with misinformation
Research ››› ››› JULIE MILLICAN
Following reports that President Obama will nominate Solicitor General Elena Kagan to the Supreme Court, CBS News published an article on the "early conservative reaction" to Obama's pick. The article only cited conservatives critical of Kagan's nomination, despite the fact that she has garnered support from numerous conservatives, and it advanced misinformation about her record.
CBSNews.com omits support of Kagan from conservatives and legal experts
The May 9 CBSNews.com article quoted three conservatives who were critical of Kagan's nomination and did note cite a single person who supported Kagan. In fact, numerous conservatives and legal experts support Kagan's nomination. For instance:
Reagan Solicitor General Charles Fried endorsed Kagan's nomination, describing her as "supremely intelligent," "an effective, powerful person," "and a very hardworking and serious person." The Huffington Post 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. From The Huffington Post:
"Let's put it this way: she should be [backed by Republicans]. But it depends on the politics," he said. "Republicans may just decide that: 'We're going to say no to what Obama comes up with the first time and we'll come up with a reason why after we've decided that we're going to say no.' I can't predict that that's what they'll do or not. But she should be, she should be."
[Justice John Paul] Stevens is known as a sharp political tactician and a persuasive jurist, the leader of the court's "liberal wing." Fried doesn't expect Kagan to be an ideological warrior, but, he points out, neither was Stevens when he came to the court.
"I don't think she's a heavily ideological person," says Fried. "But, you know, when John Paul Stevens was put on the court neither was he. And, in fact, though he never admits it, because he never admits anything, Stevens switched his position on a number of very important things as time went on and he became kind of the replacement for Bill Brennan. So, you know, you can't tell. But she is not an ideological person."
During Kagan's confirmation hearing to become solicitor general, Fried said that Kagan "is a superb lawyer and an awesomely intelligent person." He added: "In discussion with students and in conference and dispute with colleagues she has a deftness, a quickness and an aptness of phrase -- with no tincture at all of pomposity or self-importance -- that show she will be able to argue to the Court with consummate skill."
Starr, Olson and other 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," 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.
Bush judicial nominee Estrada has "never met a lawyer who knows Elena and is not utterly impressed by her intellect." In a letter supporting her nomination for solicitor general, Miguel Estrada -- who Bush nominated to be a D.C. Circuit judge -- stated that he had sat next to Kagan in many law school classes and has "never met a lawyer who knows Elena and is not utterly impressed by her intellect."
Bush official and judicial nominee Keisler: Kagan "was brilliant, thoughtful, independent, and creative." Former Bush Justice Department official and D.C. Circuit nominee Peter Keisler wrote: "I have known Elena since we clerked together. Although we served different Supreme Court Justices, I came to know her well. Our clerk colleagues were an impressive group, but Elena was a standout even in that setting. ... She was brilliant, thoughtful, independent, and creative, but without even a hint of arrogance that sometimes accompanies such talent."
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":
Elena Kagan -- The first-female Solicitor General and probably first-runner-up for the Sotomayor seat, Kagan has a record of the kind of cagey jurisprudence that is ideal for a tough confirmation battle. She is well-respected by just about everybody on both sides, but lacks the paper trail that would reveal just how far to the left she'd sit.
Bush administration assistant AG Goldsmith: "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."
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.
Fox News' Hayes: Kagan is "persuasive to those 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, by all accounts from people who have dealt with her personally and intellectually, 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."
NAACP-LDF's Payton: Kagan "has proven to be one of the most capable and distinguished legal minds today." From a letter sent by John Payton, president and director-counsel of the NAACP Legal Defense and Education Fund Inc.:
Dean Kagan has served at the highest levels of the Executive Branch, been a law clerk for distinguished jurists, including Supreme Court Justice Thurgood Marshall, worked in the private sector for a highly-regarded law firm, been a law professor and is currently Dean of the nation's leading law school. Through these various roles, she has proven to be one of the most capable and distinguished legal minds today.
I know Dean Kagan. She combines intellectual depth with curiosity and dynamism. I am also a Harvard Law School graduate and I regularly visit the campus. Harvard Law School has undergone tremendous transformation and development under her leadership -- in its curriculum, in its diversity, and in its vibrancy.
Laurence Tribe: Kagan "is the ideal advocate for an administration that seeks common ground among partisan opponents." Harvard Law School professor Laurence Tribe wrote:
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.
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."
CBSNews.com advances attack that Kagan's policies on military recruiters shows she's a liberal "activist"
CBSNews.com: Conservatives are "honing in on Kagan's opposition to military recruiting at Harvard because of 'don't ask, don't tell.' " The article reported: "Some early conservative reaction is honing in on Kagan's opposition to military recruiting at Harvard because of 'don't ask, don't tell.' "
CBSNews.com uncritically quoted McIntosh claiming Kagan "has been a vocal opponent of military recruiters on the Harvard Law School campus, placing political correctness above national security in a time of war." The article quoted David McIntosh, co-founder of the conservative Federalist Society, as saying, "Ms. Kagan's public comments should be highly disturbing to all Americans as they show what kind of a Justice she will be. She has been a vocal opponent of military recruiters on the Harvard Law School campus, placing political correctness above national security in a time of war. ... President Obama has, once again, nominated an individual who places a higher premium on political progressivism than adherence to the set of laws that have made this country strong and free. For someone tragically inexperienced and activist, Ms. Kagan represents President Obama's ideal of transforming the Supreme Court into a vehicle for social reform and judicial affirmative action."
In fact, Kagan followed the law and students had access to military recruiters
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. 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. [emphasis added]
Kagan allowed military recruiters access to Harvard Law School's Office of Career Services. In the 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.
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 -- a statute requiring schools to provide the same access to military recruiters that they provide to other potential employers or lose federal funding -- 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 reinstated the ban 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.
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.
Kagan's actions on DADT and military recruiters were within the legal mainstream and not indicative of activism
Military veterans at Harvard Law dispelled notion that Kagan was "anti-military." Military veterans at Harvard Law School strongly dispute the idea that Kagan was anti-military and stated that she had a "strong record of welcoming and honoring veterans on campus." In response to a Washington Times op-ed, three military veterans who were Harvard law students at the time wrote a letter to the Senate Judiciary Committee that said, in part: "As Iraq War veterans who currently attend Harvard Law School, we wanted to inform the Committee of Dean Kagan's strong record of welcoming and honoring veterans on campus." The veterans also wrote a letter to The Washington Times that stated, in part, that while they opposed the restrictions on military recruiters, "During [Kagan's] time as dean, she has created an environment that is highly supportive of students who have served in the military."
Dozens of other law professors, other law schools, and the Cato Institute argued against government's interpretation of Solomon Amendment. As Media Matters for America 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.
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.
Mullen said DADT compromises military's "integrity." While conservatives have claimed Kagan's rhetoric opposing the ban on openly gay service members is somehow extreme, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has 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.
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]
CBSNews.com advances attack that Kagan is "inexperienced" and lacks judicial experience
CBSNews.com quoted Federalist Society attack that Kagan "is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory" because she has "no judicial experience." The CBSNews.com article also quoted McIntosh as saying he was "deeply disappointed" in Obama's nomination, adding: "Solicitor General Kagan has been nominated with no judicial experience, a mere two years of private law practice, and only a year as Solicitor General of the United States. She is one of the most inexperienced nominees to the U.S. Supreme Court in recent memory."
CBSNews.com advanced Whelan's attack that Kagan "may well be the nominee with the least amount of relevant experience" in the past 50 years. The article also quoted National Review Online's Ed Whelan -- a frequent purveyor of conservative attacks on Obama's judicial nominees -- as saying of Kagan: "Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience."
In fact, numerous Supreme Court justices had little or no judicial experience prior to joining the Court
Two of the past four chief justices did not have prior judicial experience. William Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their appointments as justices. Both were nominated by Republican presidents.
Former Chief Justice John Marshall and former associate Justices Louis Brandeis and Felix Frankfurter had no prior judicial experience. Former Chief Justice John Marshall, frequently referred to as the "great chief justice," and former associate Justices Louis Brandeis and Felix Frankfurter also had no judicial experience at the time of their Supreme Court appointment.
Kagan has not had judicial experience because GOP blocked her nomination. Kagan was nominated to the U.S. Court of Appeals for the District of Columbia Circuit in 1999 by President Clinton, and the Senate, then controlled by Republicans, blocked her nomination.
Clarence Thomas had been a judge for only 16 months when he was nominated for a Supreme Court position. Thomas had only been a judge for 16 months when George H.W. Bush nominated him for the Supreme Court.
Citing Frankfurter, GOP Sen. Hatch stated, "I have long believed that prior judicial experience is not a prerequisite for successful judicial service." On March 19, 2009, during the floor debate on Kagan's nomination to be solicitor general, Republican Sen. Orrin Hatch (UT) stated:
I have long believed that prior judicial experience is not a prerequisite for successful judicial service. Justice Felix Frankfurter taught at Harvard Law School from 1921 until President Franklin D. Roosevelt appointed him to the Supreme Court in 1939. During that time, by the way, he turned down the opportunity to become Solicitor General. But Justice Frankfurter famously wrote in 1957 that the correlation between prior judicial experience and fitness for the Supreme Court is, as he put it, "precisely zero.''
Indeed, 40 of 111 Supreme Court justices had no prior judicial experience. From Findlaw.com:
CBSNews.com advanced Whelan's claim that Kagan should be held to "Kagan Standard"
CBSNews.com quoted Whelan arguing that Kagan should abide by her 15-year-old argument that nominees should answer questions on issues that will come before the court. CBSNews.com quoted Whelan as saying, "Elena Kagan has written that the confirmation process for Supreme Court justices 'takes on an air of vacuity and farce' when the Senate fails 'to engage nominees in meaningful discussion of legal issues.' She's argued for 'the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments. ... It's especially important that the Senate hold Kagan to the Kagan Standard." Kagan had reportedly argued in a 1995 book review that nominees should be "forced to say what they think about disputed issues such as abortion, affirmative action and privacy."
Roberts and Alito repeatedly refused to answer questions, and Republicans suggested it would be improper for them to do so
Roberts repeatedly refused to answer questions during his confirmation hearing. According to a September 15, 2005, The New York Times article, Chief Justice John Roberts refused to answer questions on more than 50 occasions.
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, Sen. Jon Kyl (R-AZ) 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 the Nexis database).
- 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, Sen. John Cornyn (R-TX) 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."
Hatch 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.