CBS makes a mess of Kagan's record as Thurgood Marshall clerk

››› ››› SARAH PAVLUS & ADAM SHAH

On the CBS Evening News, Jan Crawford distorted memos Elena Kagan wrote as a clerk to Supreme Court Justice Thurgood Marshall, falsely painting Kagan as outside the mainstream.

Crawford distorts Kagan's statements on abortion

Crawford falsely suggested Kagan embraced a constitutional right to public funding for all prisoners' abortions. From Crawford's June 3 report:

CRAWFORD: But documents buried in Thurgood Marshall's papers in the Library of Congress show that as a young lawyer, Kagan stood shoulder to shoulder with the liberal left, including on the most controversial issues Supreme Court nominees ever confront -- abortion.

CROWD [video clip]: Abortion's got to go!

CRAWFORD: In a case involving a prisoner who wanted the state to pay for her to have the procedure, Kagan writes to Marshall that the conservative-leaning court could use the case to rule against the woman and "create some very bad law on abortion."

In fact, Kagan called argument that state must pay for all prisoners' abortions "ludicrous." In her memo to Marshall, Kagan 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]

Crawford distorts Kagan's record on marriage issues

Crawford claimed that Kagan "wrote a memo Republicans will use to say she would find a constitutional right to gay marriage." From Crawford's report:

CRAWFORD: Kagan also wrote a memo Republicans will use to say she would find a constitutional right to gay marriage. That case involved a man who said the state of New York was required to recognize his marriage in Kansas, even though it was illegal in New York. Kagan told Marshall his position was "arguably correct."

Kagan has said "[t]here is no federal constitutional right to same-sex marriage." From Kagan's response to written questions from Sen. John Cornyn (R-TX) regarding her Solicitor General nomination:

As Solicitor General, you would be charged with defending the Defense of Marriage Act. That law, as you may know, was enacted by overwhelming majorities of both houses of Congress (85-14 in the Senate and 342-67 in the House) in 1996 and signed into law by President Clinton.

a. Given your rhetoric about the Don't Ask, Don't Tell policy--you called it "a profound wrong--a moral injustice of the first order"--let me ask this basic question: Do you believe that there is a federal constitutional right to same-sex marriage?

Answer: There is no federal constitutional right to same-sex marriage.

The case Crawford cited involved a male prisoner who wanted to marry a woman, not same-sex marriage. Kagan was dealing with a case in which Robert F. Miner -- a prisoner sentenced to life in prison in New York State -- married a woman in Kansas, Laurie Marion, through a proxy. The marriage was void in New York, because prisoners sentenced to life in prison are considered "civilly dead" in New York and are not allowed to marry. Miner challenged the constitutionality of New York's decision not to recognize the Kansas marriage, and New York's highest court rejected Miner's challenge, and Miner appealed to the Supreme Court. The Supreme Court ultimately decided not to hear the case. Neither the lower court decisions (retrieved via Lexis) nor Kagan's memo mentioned same-sex marriage.

In the memo on the 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.

Crawford falsely paints Kagan's Second Amendment rights memo as "controversial"

Crawford described Kagan's Second Amendment rights memo to Marshall as "controversial." In her report, Crawford said that in "a recently disclosed memo on gun rights, in a case challenging the District of Columbia's handgun ban as unconstitutional, Kagan was blunt: 'I'm not sympathetic.'" Crawford added that the memo was among several documents that "will be much harder for her to explain away than other less controversial papers unearthed before her confirmation hearings for solicitor general."

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.

When Kagan wrote Marshall memo, it was accepted that the Second Amendment did not protect civilian gun rights. 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.

Even Ed Whelan concedes that Kagan's memo does not "establish her current views on the Second Amendment" National Review Online's Ed Whelan -- who has repeatedly attacked and distorted Kagan's record -- stated in a May 13 blog post:

I am of course not contending that Kagan's 1987 statement establishes her current views on the Second Amendment, but (depending on how one reads her statement that she was "not sympathetic") it may well be one piece of evidence that supporters of Second Amendment rights try to factor into their overall calculus.

In the legal context, the term "not sympathetic" does not connote personal political views. Supreme Court justices -- including Samuel Alito, Clarence Thomas, William Rehnquist, and John Paul Stevens -- have used the term "sympathetic" to refer to their agreement with legal arguments.

Kagan's Marshall memos have long been publicly available

Crawford claimed memos Kagan wrote as a Marshall clerk were "buried," "recently disclosed." During her CBS Evening News report, Crawford said: "[D]ocuments buried in Thurgood Marshall's papers in the Library of Congress show that as a young lawyer, Kagan stood shoulder to shoulder with the liberal left, including on the most controversial issues Supreme Court nominees ever confront." Crawford later described one memo as "recently disclosed" and said "these documents will be much harder for her to explain away than other less controversial papers unearthed before her confirmation hearings for solicitor general."

In fact, Kagan's memos have long been publicly available at the Library of Congress, and she was asked about them during her SG hearing. The memos Kagan wrote as a Marshall clerk have long been available to the general public at the Library of Congress. The library acquired the Thurgood Marshall papers as a gift from Marshall in 1991. 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.

Purpose of memos was to "channel" Marshall, memos don't necessarily reflect Kagan's own views

Crawford claimed memos would be "much harder" for Kagan "to explain away," would "give Republicans a lot more ammunition." Concluding her CBS Evening News report, Crawford said: "Taken together, these documents will be much harder for her to explain away than other less controversial papers unearthed before her confirmation hearings for solicitor general." Crawford added the memos are "going to give Republicans a lot more ammunition to fight against her."

Questioned about Marshall memos at SG hearing, Kagan said it was her job to "channel" Marshall's views. 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]

NYTimes: "[I]t is not clear how much the memorandums reflect her thinking today." From a June 3 New York Times report on the Marshall memo:

The three-page memorandum is one of hundreds Ms. Kagan wrote analyzing petitions to the Supreme Court during its 1987-88 term. Those documents, housed at the Library of Congress, constitute a rare paper trail that provides insight into her early legal policy views. Largely written with a liberal sensibility on a variety of matters from criminal rights to environmental regulations, the memorandums could provide ammunition to conservative critics of her nomination, while comforting liberal skeptics.

Still, it is not clear how much the memorandums reflect her thinking today. At her confirmation hearing to be solicitor general last year, Ms. Kagan sought to distance herself from them, saying that she no longer agreed with some and that her job as a clerk was to "channel" Justice Marshall's views.

But she also acknowledged some personal responsibility for the views in the documents, testifying that "I don't want to say that there is nothing of me in these memos," and "I think that it's actually fair when you look" at a particular memorandum "to think that I was stating an opinion." [emphasis added]

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.

Posted In
Government, Nominations & Appointments, The Judiciary
Person
Jan Crawford
Show/Publication
CBS Evening News
Stories/Interests
Supreme Court Nominations, Elena Kagan
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.