As we've noted, National Review Online blogger Ed Whelan has falsely claimed that Solicitor General Kagan said prior judicial experiences is an "apparent necessity" for Supreme Court nominees. Whelan spread the falsehood on MSNBC Live, stating to MSNBC host Tamron Hall: "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":
Whelan has now acknowledged that he was wrong: Kagan did not claim that judicial experience was a necessary qualification for Supreme Court nominees and that Kagan indeed said the opposite -- that other legal experience may also be sufficient.
Ed Whelan baselessly claimed that, as Solicitor General, Elena Kagan has "indulged her own ideological views ... on gay rights" rather than defend federal law. In fact, neither of the cases Whelan cites support his claims that Kagan did not vigorously defend federal laws in court -- as the Solicitor General is required to do.
Ed Whelan claimed that Elena Kagan excluded military recruiters "from the Harvard law school campus" and "treated military recruiters worse than she treated the high-powered law firms" that represented terror suspects. But this comparison is flawed because Kagan's military recruiting policy was guided by the school's decades-old anti-discrimination policy; moreover, students had access to military recruiters throughout Kagan's tenure as dean.
National Review Online and the Fox Nation distorted a Daily Princetonian article in order to suggest Supreme Court nominee Elena Kagan's senior thesis shows that she supports socialism. Both NRO and the Fox Nation excerpted from the article but edited out statements from Kagan's thesis adviser disputing those claims.
National Review's Ed Whelan throws the kitchen sink at Supreme Court nominee Elena Kagan:
In addition to her kicking military recruiters off Harvard's campus during wartime* and being paid for a comfy position on a Goldman Sachs advisory board, this passage (from this article) nicely captures Elena Kagan's remoteness from the lives of most Americans:Kagan ... is such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John's University, it is a skill she has not yet mastered.
Now, my first reaction to that was shock that Whelan would actually criticize a woman nominated to the nation's highest court for being a bad driver. I can only assume Whelan is now hard at work on a follow-up post portraying Kagan as bad at math.
But that was quickly followed by annoyance at the silly regional warfare Whelan is trying to provoke by painting Kagan as an out-of-touch New Yorker. First, as Matt Gertz notes, that's a mindless smear of millions of residents of New York City (and, by the way, the kind of geographic bigotry conservatives would rage about if it were directed at Southerners or Midwesterners.)
I was also amused by Whelan's linking of not learning to drive with being a subway-riding city-slicker. See, though I (barely) learned to drive when I was 16, I never got around to getting a driver's license and haven't driven a car since my learner's permit expired shortly thereafter. But I didn't grow up in mid-town Manhattan; I grew up in a town of about 300 people -- a town with no gas station, no stop lights, no ... well, no anything. The nearest movie theater, for example, was about 20 miles away. But I didn't have a car, or the money to buy one. Getting a driver's license would have been a largely symbolic exercise. (Since then, I have lived in Washington, DC, where driving is not particularly necessary.)
To be sure, most people I knew growing up -- and most people I know now -- know how to drive. But I'm quite certain that there are plenty of other adults who have negligible driving experience not because they are the embodiment of the conservative caricature of a limo-riding New York City elitist but because they couldn't afford to drive. And I'm quite certain you can find people like that in small cities and towns throughout America. Whelan reveals his own elitist assumptions when he links a lack of driving experience with purported big-city elitism.
* No, Whelan isn't telling the truth: Kagan did not "kick military recruiters off Harvard's campus."
In the latest evidence that National Review Online's Ed Whelan is just throwing everything he can at the wall and hoping something sticks to Supreme Court nominee Elena Kagan, Whelan is now attacking her for... not learning to drive until her late 20s. According to Whelan, this "nicely captures Elena Kagan's remoteness from the lives of most Americans."
Putting aside for a second the deeply bizarre idea that one's ability to drive should be a qualification or disqualification for high office, as the article Whelan quotes from points out, Kagan grew up in New York City, which is one of the most walkable cities in the country and has one of the best public transportation systems nationwide. You don't need a license if you live in NYC, and in fact a large percentage of New Yorkers don't have one: New York City has 5.6 million residents over age 25, but only 3.3 million residents have drivers' licenses.
My 90-year old grandmother is one of those New Yorkers without a license; in fact, all four of my grandparents lived in the city either from birth or since immigrating to the U.S., and none of them ever learned to drive. My parents grew up in New York City, and also did not learn to drive until their late 20s.
Whelan, though, wants his readers to think this makes Kagan deeply weird, and somehow unsuitable to be a Supreme Court justice. And the only way that works is if he tars a large percentage of New Yorkers as being different from "real Americans."
After Media Matters for America pointed out flaws in his argument, Ed Whelan has attempted to defend his claim that Ninth Circuit Judge Sidney Thomas' decision in Harper v. Poway Unified School District showed that Thomas was on "the far Left." Most laughably, Whelan complains that Media Matters "cites a quote from a Montana district judge that Thomas 'has never let his politics get in the way of sound judgment.' " Whelan asks: "What evidence is there that that district judge has familiarized himself with the controversial aspects of Thomas's record?" What evidence exists? Is Whelan serious?
The judge in question, Chief Judge for the U.S. District Court for the District of Montana Richard Cebull -- an appointee of George W. Bush -- has been a district judge in the Ninth Circuit for close to nine years. Before that, Cebull was a federal magistrate judge for more than two years. During that time as a magistrate and district judge, Cebull has published hundreds of decisions -- and likely presided over thousands of cases. Cebull has been applying binding precedents written by Thomas during all that time. During that time, Thomas has also presided over appeals of Cebull's cases. If Thomas was an ideologue, would it really have escaped Cebull's notice for all these years?
In addition, Media Matters showed that conservative appellate court Judge Richard Posner had ruled -- like Thomas did -- that schools have broad leeway to ban derogatory speech. Whelan's response is that unlike Posner, Thomas was "approving of viewpoint discrimination restrictions" because the school in Harper allowed -- in the words of the dissent -- "pro-gay speech" but was trying to "gag other viewpoints." Completely undermining Whelan's response, however, is the fact that Posner was also dealing with a school that had allowed "pro-gay speech" as Whelan and the Harper dissent defined it but was trying to ban statements that were derogatory about gays and lesbians.
We just pointed out in response to Ed Whelan's comments about Elena Kagan that military veterans at Harvard Law School strongly criticized the notion that Kagan was anti-military. But we need to highlight one other line in Whelan's post . Whelan writes of Kagan's decision to allow the military full recruiting access despite her opposition to "Don't Ask Don't Tell": "But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, 'We've already established what you are, ma'am. Now we're just haggling over the price.' "
Update: Immediately after the portion I quoted, Whelan states "(My point isn't that Kagan deserves the Bernard Shaw slam--she doesn't--but rather that she evidently doesn't believe her own rhetoric.)"
In response to a New York Times article discussing Elena Kagan's opposition to the military's discriminatory "Don't Ask, Don't Tell" policy, Ed Whelan has again highlighted Peter Beinart's assertion that "you can't alienate yourself from the [military] without in a certain sense alienating yourself from the country. Barring the military from campus is a bit like barring the president or even the flag. It's more than a statement of criticism; it's a statement of national estrangement." Whelan also accused Kagan of engaging in "her cheap moral posturing in the aftermath of 9/11, at a time when American soldiers were at war defending our freedom."
It bears mention that 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 connection with Kagan's solicitor general confirmation hearings, three military veterans who were Harvard law students at the time wrote a letter to the Judiciary Committee that said:
We are sending this letter due to an op-ed by Flagg Youngblood titled "Solicitor general flimflam," which appeared in the January 30, 2009 edition of The Washington Times. This article unfairly labels Dean Elena Kagan as an "anti-military zealot." 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. We have enclosed the letter to the editor that we submitted to The Washington Times in response to Mr. Youngblood's piece. This letter highlights Dean Kagan's support for the student veteran community. Thank you very much for your time and consideration.
National Review Online's Ed Whelan has attacked Judge Sidney Thomas for supposedly being on the far left, citing, in part, Thomas' decision in Harper v. Poway Unified School District. But Whelan's comments are contradicted by statements from Thomas' colleagues as well as by an examination of that case.
Right-wing media figures -- including National Review Online blogger and Ethics and Public Policy Center president Ed Whelan -- have been baselessly suggesting that judicial nominee Goodwin Liu was trying to hide something by submitting additional writings and statements as a supplement to his Senate Judiciary Committee questionnaire.
University of Minnesota law professor Richard Painter, a former assistant White House counsel during the Bush administration, pretty much destroyed those arguments, noting of Liu's additions, "most of these items are the types of things that law professors do routinely and frequently" and are thus "nearly impossible to keep track of" and stating: "Professor Liu also apparently does not have a photographic memory. It appears to me, however, that his original answers to the questions were a careful and good faith effort to supply the Senate with the information it needed to assess his nomination." Painter continued: "He provided a lot more information than many nominees do in response to these questions. He has now provided the additional information the Senate wants. I doubt the Senators will learn anything new from it."
Since Painter's definitive debunking hasn't stopped the attacks, we thought it was worth remembering that Chief Justice John Roberts omitted his affiliation with the Federalist Society from the questionnaire he submitted as a court of appeals nominee in 2001. That questionnaire asked Roberts to "list all bar associations, legal or judicial-related committees or conferences of which you are or have been a member." Roberts listed several legal organizations but did not list the Federalist Society -- an influential conservative legal organization to which many of President Bush's judicial nominees belonged -- in response to that question. However, according to The Washington Post, the Federalist Society listed Roberts' name in its 1997-98 "leadership directory." The Post reported that the Federalist Society listed Roberts "as a member of the steering committee of the organization's Washington chapter and includes his firm's address and telephone number."
And who was busy excusing Roberts for not listing the Federalist Society on his questionnaire? Ed Whelan.
Conservatives appear ready to attack anyone President Obama nominates to the Supreme Court as suggested by a New York Times article that quoted conservative activist Richard Viguerie signaling that he will affix the "radical" label to anyone Obama nominates. Furthermore, the specific attacks on potential nominees cited by the Times do not hold up to scrutiny.
A Rasmussen poll asked whether President Obama believes "Supreme Court justices should decide cases based on what's written in the Constitution and legal precedents or does he believe they should decide cases by a sense of fairness and justice," and gave no indication whether respondents were given the choice to say both. In fact, Obama has stated that he is looking for justices that both follow the law and have empathy.
Lou Dobbs did not challenge the accusation by Ed Whelan that Sonia Sotomayor contradicted herself on the question of whether judges should use foreign law in deciding cases.