Sean Hannity and Glenn Beck have falsely suggested Elena Kagan's college thesis shows she is a socialist or radical. In fact, Kagan's thesis did not express support for socialism or radicalism, and regardless, conservatives -- including Hannity -- previously said that nominees' political views are irrelevant to the confirmation process.
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.
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.
In a May 4th post to National Review Online's blog, Victor Davis Hanson suggests there is "a pattern" to be found in attacks on American soil since Obama took office:
The jihadist symptoms of Major Hasan were ignored; General Casey lamented the possible ramifications of Hasan's killings to the army's diversity program; the warnings of Mr. Mutallab's [sic] father about his son's jihadist tendencies were ignored but the latter's Miranda rights were not; and the Times Square would-be bomber was quite rashly and on little evidence falsely equated with a "white" bomber with perhaps domestic-terrorism overtones (when it looks like there is a Pakistani radical-Islamist connection) -- a sort of pattern has been established, one both implicit and explicit.
One, we are doing our darnedest to playact that radical Muslims who are trying to kill us are not trying to kill us; and two, we are not seeing a lot of peaceful blowback from the virtual closing of Guantanamo, the virtual trial of KSM, the reach out in the Al Arabiya interview, the "reset" rhetoric, the Cairo speech, and the apology tour -- 2009 saw the most terrorism attempts since 2001.
And that, of course, is the charitable take: that these near-miss (and not-so-near-miss) radical-Islamist incidents are incidental to, rather than a symptom of, our new de facto policy of suggesting that the problem with our "contingency operations" against "man-caused disasters" is with us rather than with hostile Muslim terrorists.
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.
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.
From an April 9 National Review Online editorial:
Replacing Justice Stevens
The question for conservatives will be not whether but how to oppose Obama's nominee.
No doubt some Republicans will say that it is unimportant to fight the nominee because Obama will merely be replacing one liberal with another rather than changing the balance of the Court. But the choice before any Republican senator is whether to acquiesce to several more decades of liberal activism on the bench. Unless Obama provides evidence of having dropped his litmus tests, the question for conservatives will be not whether but how to oppose Obama's nominee.
It is highly unlikely that Republicans will be able to deny that nominee an up-or-down vote, and any attempt to do so will probably backfire. But Republicans are nonetheless in a position of strength. Even last year - well before the midterm elections, with Obama more popular than he is today, and dealing with the first Latina nominee - Republicans were able to force the debate over Sonia Sotomayor's nomination to take place along conservative lines. This year, Republicans should again make the case against judicial liberalism, both in principle and in practice, and then vote accordingly.
Conservative media figures have seized on the fact that federal appeals court nominee Goodwin Liu submitted additional responses to his Senate questionnaire to attack Liu's character and fitness for the bench. However, Richard Painter, former Bush administration assistant White House counsel, has debunked the charge that Liu acted in bad faith and urged that "[r]ather than posturing over yet one more 'missing documents' episode in Washington, the Senate should perhaps look at this nomination on the merits and vote."