On August 4, WorldNetDaily published an article by executive news editor Joe Kovacs (reproduced here) asserting that newly minted Supreme Court Justice Elena Kagan, while serving as solicitor general, "has actually been playing a role for some time in the dispute over whether Obama is legally qualified to be in the White House," adding that "A simple search of the high court's own website reveals Kagan's name coming up at least nine times on dockets involving Obama eligibility issues."
One little problem: Not a shred of that is true.
As the urban legend-busters at Snopes detailed, none of the nine lawsuits Kovacs references have anything to do with "Obama eligibility issues." Even the one involving a group called "The Real Truth About Obama, Inc." is centered on an allegation that the Federal Election Commission "chilled its right to disseminate information about presidential candidate Senator Obama's position on abortion."
After the Snopes debunking, WND quickly backpedaled. Snopes added in an update: "Immediately after we published this article, WND scrubbed all reference to the original article without explanation. Three days later, WND replaced the original with an article on a completely different topic."
Indeed, the WND article is completely rewritten, focusing on the insignificant "Real Truth About Obama, Inc." case. It now begins with a correction (though it's not called that):
Today, the front page of Tucker Carlson's Daily Caller blared the headline "Justice Sharia: Critics allege Kagan is sympathetic to Islamic law" over a large picture of Supreme Court nominee Elena Kagan.
The conservative media has been circulating this claim for months now -- though to be honest, we're more accustomed to it being paired with an image of Kagan in a turban, rather than one of her standing behind a podium.
Nonetheless, it's important to again set the record straight on this tired, Islamophobic attack, especially because The Caller has chosen to revive it just as the right is whipping up an anti-Muslim frenzy regarding the community center and mosque set to be built near Ground Zero.
The Caller reports that, according to some conservative critics (more about this merry band later), one of Kagan's "primary disqualifications" is the supposed "approval of Sharia" she demonstrated as the dean of Harvard Law School. The familiar laundry list of Kagan's alleged offenses includes "condoning the acceptance of $20 million from Saudi prince Alwaleed bin Talal -- who blamed the attacks of 9/11 on American foreign policy -- to fund programs on Islam," "spearhead[ing] the 'Islamic Finance Project,' a program aimed at mainstreaming Sharia-compliant finance in America," and "award[ing] the Harvard Medal of Freedom to the chief justice of the Supreme Court of Pakistan, Iftikhar Chaudhry, who critics say is a promoter of Sharia."
None of these attacks is remotely accurate.
From the August 3 edition of Premiere Radio Networks' The Glenn Beck Program:
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Members of the right-wing media are engaging in a thinly-disguised attempt to justify a delay in the vote on Elena Kagan's Supreme Court nomination -- a delay that could only be accomplished by a filibuster.
Two weeks ago, right-wing bloggers promoted Americans United for Life's call for an investigation into Elena Kagan's testimony. According to the anti-abortion rights group and the bloggers, Kagan manipulated medical science in her work with the American College of Obstetricians and Gynecologists on the bill banning so-called "partial-birth abortions." They also claimed that during her confirmation hearing, Kagan lied to the Judiciary Committee when she said that ACOG had told her that the procedure was "sometimes the best" one to use.
These charge are utterly false. Kagan did not ask ACOG to change its medical findings and ACOG did not do so. Furthermore, Kagan's testimony that the procedure was "sometimes the best" is supported by sworn testimony by an ACOG official as well as by memos Kagan wrote at the time.
That didn't stop WorldNetDaily from promoting conservative activist Larry Klayman's ridiculous charge that Kagan violated her ethical duties and possibly criminal statutes by her work on the "partial-birth abortion" issue.
It was always clear that these false charges are part of strategy to convince senators to delay the vote on Kagan. And now The Washington Times has adopted the strategy explicitly, calling for a delay in Kagan's vote. From an editorial in today's Washington Times headlined "Kagan's abortive ethics" and subheadlined "Senate needs more time to investigate Obama court nominee":
The U.S. Senate is derelict in its duty if it votes to confirm Elena Kagan to the Supreme Court without further investigating her legal ethics.
Ms. Kagan, the U.S. solicitor general, was directly responsible for altering a key medical report in a way that stacked the deck in favor of keeping the barbaric practice of partial-birth abortion legal. She then gave testimony to the Senate Judiciary Committee that appeared to veer from the actual record.
The legal ethics in question are significant. The moral questions involved in partial-birth abortion should make senators and their constituents blanch. Ms. Kagan's troubling combination of bending the rules to endanger the unborn is enough to disqualify her from the bench.
Let's hope no one is fooled into thinking that this is anything more than a transparent attempt to justify a filibuster of Kagan's nomination, a filibuster that would be at odds with claims by several Republicans that filibusters of judicial nominees are unconstitutional. The charges are too flimsy to think that anyone really believes Kagan lied to the Judiciary Committee or otherwise violated her legal duties.
A piece in National Review claimed that Elena Kagan is anti-small business because as solicitor general, she filed a Supreme Court brief arguing that the Court should throw out a case brought by a business. But Kagan's alleged anti-small business argument was first made by the Bush Justice Department, and legal experts say Kagan's solicitor general briefs are not necessarily proof of her personal views.
Promoting their "Stop Kagan" scam, which asks readers to send WorldNetDaily $24.95 in order to mail personalized letters opposing Elena Kagan to all 100 senators, WorldNetDaily repeated numerous myths and falsehoods about Kagan including Larry Klayman's ridiculous charges that Kagan violated her ethical duties and possibly criminal statutes through her work on "partial-birth abortion" bills.
Ed Whelan and two of his colleagues at National Review Online have repeatedly attacked a New York Times article that reported on a study finding that the Supreme Court under John Roberts is "the most conservative one in living memory." Their attack is unsurprising since Whelan based a major part of his testimony opposing Elena Kagan's Supreme Court nomination on the premise that the conservative Supreme Court majority is actually non-ideological. But their complaints are undermined by the words of former Chief Justice William Rehnquist who described the philosophy of a "strict constructionist" in explicitly results-oriented terms.
NRO contributor Matthew Franck complained that the study relies on "the facile equation of politically-favored or -disfavored outcomes with ideologically-driven behavior." Carrie Severino put the argument and the defense of conservative justices even more strongly, writing:
Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the "left" and the "right" to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as "you do what you think is right and let the law catch up," and if you subscribe to Marshall's philosophy, this type of blunt head-counting might make sense. The problem is that "conservative" judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must "catch up" to the law by putting aside political preferences when deciding cases.
Fatal to the claim that conservative judges put aside "political preferences when deciding cases," however, are Rehnquist's words. As a Nixon administration official, Rehnquist reportedly defined a "strict constructionist" as someone who "will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs."
And it's hard to get more clearly results-oriented than that.
From the July 27 edition of Clear Channel's The War Room with Quinn & Rose:
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Investor's Business Daily columnist Svetlana Kunin attacked Elena Kagan's family and roots in a piece headlined "Elena Kagan And 'The Urge To Alter.' " Kunin noted that Kagan, like Kunin herself had Russian roots, but that Kagan's family left Russia before the Communist revolution. She then attacked Kagan for growing up on the Upper West Side of Manhattan; not having an understanding of the true nature of socialism; having a brother who was involved in radical politics; and writing a college thesis on the socialist movement in the United States.
In the process, Kunin falsely suggested that Kagan embraced socialism in her thesis.
Supreme Court nominee Elena Kagan is only a decade younger than I. And, judging by her name, I can tell that her grandparents came from the same place I did. Kagan's father was a lawyer, as was mine. My mother was a librarian; Kagan's mother was a teacher. Both families had three children. This, however, is where the similarities end.
Kagan's grandparents most likely left their native land around the time the socialist revolution took place. They emigrated to a country where churches and synagogues existed side by side and where people were allowed to follow their individual pursuits and make profits.
My grandparents and parents lived in a socialist country where people were forced to conform to government dictates in order to survive. God-based religion was eliminated from the public sphere. Churches and synagogues were demolished or converted to other uses.
Kunin later attacks Kagan for writing a thesis on the socialist movement in the United States, having a brother who was involved "in radical causes," and asserts that Kagan "perhaps couldn't relate to Americans who prefer their own life, libert and pursuit of happiness" because she grew up "in the comforts of Manhattan's Upper Westside."
Of course, Kagan did not express personal support for socialism or radicalism in her college thesis. 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."
From the July 22 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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After its previous suggestion that Elena Kagan must recuse herself from participating in health care reform-related litigation fizzled away, The Wall Street Journal is attempting a new line of attack -- speculating that Kagan sensed or was informed of her potential as a Supreme Court nominee and thus engaged in a "deliberate act of avoidance to hear and say nothing" about the health care litigation so that she wouldn't have to recuse herself should she become a Justice. In fact, Kagan herself stated that, after being informed that the president was considering nominating her to the Supreme Court, she "scaled down" her participation in Justice Department work outside her specific duties as solicitor general. And her decision was completely appropriate.
After recounting Kagan's statement that she was not involved in the health care reform litigation and had not given an opinion on the constitutionality of the reform legislation, the Journal argues:
We have no reason not to take Ms. Kagan at her word. Enough people work in Justice who would know if she were not telling the truth, and it would be severely damaging to her credibility on the High Court if such a claim later surfaced. We doubt Ms. Kagan would take such a risk.
Yet it is also worth noting how extraordinary it is that she would have played no role at Justice even in discussing the cases. As SG, she is the Administration's foremost authority on the Constitution. The Florida lawsuit was filed on March 23, six weeks before she was nominated on May 10. The op-ed pages and cable channels were full of debate about the Florida and Virginia lawsuits and their merits.
It must have taken a deliberate act of avoidance to hear and say nothing about this potentially landmark legal challenge on such a momentous issue. Our guess is that either someone advised her to avoid the subject, perhaps someone at the White House who knew she was a potential nominee. Or perhaps Ms. Kagan herself, with what we have learned are her finely cultivated political instincts, decided she should all but recuse herself from the case while at the Justice Department lest she later have to recuse herself while on the Court.
But there's no reason for the Journal to be speculating about why Kagan did not participate in the litigation challenging health care reform. Kagan herself stated outright that soon after she was informed in early March of the fact that President Obama was considering her nomination, Kagan stated that she "scaled down my participation in more general departmental matters (which was not extensive to begin with)."
And it would have been irresponsible for Kagan to have done otherwise, since she would have expanded the number of cases in which she would have to recuse herself and risk the possibility that the Supreme Court would tie 4-4 on important issues.
In a Wall Street Journal op-ed, Iraq War veteran Pete Hegseth pushed the myths that Elena Kagan barred the military from Harvard and that Kagan is anti-military. Hegseth even digs up the falsehood that the military's policy of discriminating against gay men and lesbians was "imposed on the military" by Congress and President Clinton when, in fact, the military had an anti-gay policy well before Congress passed the "Don't Ask, Don't Tell" law.
These are all myths we have thoroughly debunked already. Indeed, Hegseth even acknowledges that other veterans disagree with him and have defended Kagan: "Her backers say Ms. Kagan supports the military because she has praised them publicly and hosted dinners for veterans. A handful of veterans have defended her, and I concede that she has had good things to say about our troops, which I appreciate."
But one sentence of Hegseth's piece caught our attention in particular. Hegseth writes in the second sentence of his op-ed: "There are several reasons why [Kagan] does not belong on the Supreme Court." Yet he doesn't list any reason besides Kagan's actions regarding military recruiters -- which he calls "the crucial" reason to oppose Kagan.
What are these unstated "other reasons" for opposing Kagan? There's no way to know for sure, but looking at Hegseth's background provides some clues: Hegseth is a former intern and fellow with the right-wing Family Research Council; he has taken vehement anti-gay rights and anti-abortion stances; and he has towed the line on many Republican pet issues, including the Iraq invasion.
In a Washington Times column accompanied by an image of Elena Kagan in a turban, Frank Gaffney attacked Kagan for allowing Harvard Law School to sponsor an Islamic Finance Project during her deanship. However, sponsorship of Islamic finance programs is not extreme; the Bush administration sponsored such programs, as have major banks.
Last week, conservatives got very excited by a Wall Street Journal editorial speculating that Elena Kagan must have given an opinion on litigation Florida and other states filed challenging the constitutionality of the health care reform legislation. Conservative activist and National Review Online blogger Carrie Severino co-wrote a letter demanding that senators "clarif[y]" whether Kagan had participated in the case. And all seven of the Judiciary Committee Republicans signed a letter asking her a series of questions about whether she had given any advice about the constitutionality of the health care bill or strategies for defending that bill in court.
In response to the Judiciary Committee Republicans, Kagan said that she did not comment on the constitutionality of the health care reform legislation or the litigation challenging that legislation.
That should end matters. But not for Severino. She has written an NRO blog post basically accusing Kagan of lying. Severino complained about the "utter implausibility of the idea that she never discussed of any issues surrounding health care" and spins a conspiracy theory that "Kagan, the White House, and Senator Leahy are not taking this process seriously, and instead are cooperating to push her vote through as quickly as possible."
Of course, Kagan didn't say she has never discussed "any issues surrounding health care." Regarding what Kagan actually said, it's not Kagan's job to comment on the constitutionality of a statute pending before Congress. That's the job of the Justice Department's Office of Legal Counsel and the attorney general (who, on very rare occasion, might ask others for an opinion if he or she disagrees with the Office of Legal Counsel's findings -- something that apparently didn't happen in this case).
Furthermore, as Severino acknowledges, Kagan said she stopped attending the attorney general's morning meetings "some time in early-to-mid-April." Kagan also wrote that she scaled back her participation "in more general departmental matters (which were not extensive to begin with)" soon after March 5, the date on which she was informed that the president was considering her for a possible Supreme Court nomination.
President Obama signed the health care bill on March 23 and the lawsuit challenging that law was filed the same day. That means that within a couple of weeks of the health care legislation becoming law and the filing of the case challenging the health care litigation, Kagan stopped attending the very meetings that the Journal identified as ones in which she must have spoken on the issue.
Rather than proof of any nefarious conspiracy theories, Kagan's responses have settled the recusal issue for everyone but the diehards.
Media Matters for America has compiled an updated list of 45 myths and falsehoods about Solicitor General Elena Kagan's Supreme Court nomination.