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.
National Review Online's Ed Whelan and Carrie Severino attacked President Obama for nominating Louis Butler to a federal judgeship after he lost his electoral bid to retain his seat on the Wisconsin Supreme Court. In fact, there is nothing unusual about Butler's appointment: President Bush successfully appointed federal judges who lost a state court election race.
Glenn Beck advanced the discredited claim that federal funding will go to fund elective abortions in Pennsylvania in order to suggest that President Obama lied when he promised federal funds would not pay for such abortions.
After a judge in Massachusetts ruled against a federal ban on gay marriage, National Review Online's Ed Whelan revived the falsehood that Supreme Court nominee Elena Kagan abandoned her constitutional duty as solicitor general and "succeeded in sabotaging the Defense of Marriage Act that she was dutybound to defend."
So says National Review Online blogger Kevin D. Williamson in a post titled "An Idea for the RNC: Dump Steele, Hire Palin."
Re: Steele and the RNC: Allow me to chime in with my usual observation on this subject: This is a job for Sarah Palin. Palin would be a much better RNC chairman than presidential candidate or freelance kingmaker. She'd raise tons of money and help recruit good candidates, i.e., she'd excel at doing the things Steele should have been doing instead of appointing himself Republican pundit-at-large.
A Chairman Palin would help set the right tone for the Republican party without having to get herself entangled in the minutiae of policy-development, which has not been her forte. Sure, she'd be polarizing, but so is Barack Obama, and these are polarized times. And it's one thing to have a polarizing party chairman, another to have a polarizing candidate.
I guess the upside of hiring Palin is the idea that if she were given a four-year gig as chair it wouldn't matter if she ended up doing poorly because she'd be gone in about two years anyway. Also, her first order of business could be formalizing Fox News' role as the communications arm of the party -- after all, she's already on network's payroll.
National Review Online's Ed Whelan is posting a "series of posts explaining some of the respects in which I find [Elena Kagan's] testimony unsatisfactory." Based on the early examples, I don't think we can expect very much from them.
For instance, in one post, Whelan falsely suggests that Kagan has refused to defend the "Don't Ask, Don't Tell" policy.
Whelan has previously attacked Kagan for refusing to immediately challenge a decision by the Ninth Circuit that required the government to provide further evidence to support its contention that the "Don't Ask, Don't Tell" policy was constitutional.
Whelan notes that at her hearing, Kagan stated that she thought it would be a stronger litigation strategy not to pursue an immediate appeal to the Supreme Court for tactical reasons.
Whelan does not attempt substantively to challenge Kagan's argument that further proceedings would have given the government a stronger argument that the Ninth Circuit's decision was overly-burdensome should Supreme Court review have become necessary. He just claims that the Ninth Circuit's decision was clearly wrong, and the Supreme Court would have clearly recognized that.
Whelan then engages in a bit of mindreading. He writes:
What did not seeking immediate review really achieve? It enabled those in the Obama Administration, like Kagan, who opposed Don't Ask, Don't Tell to buy time as they worked to reverse it. And it enabled Kagan to duck taking a public position on a hot-button issue that might have complicated her prospects for a Supreme Court nomination.
But Kagan proved Whelan's claim to be utterly false at her hearing. Kagan did "take a public position" on behalf of the Obama administration on the constitutionality of Don't Ask, Don't Tell.
As Kagan testified (via Nexis):
KAGAN: So take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the "don't ask/don't tell" policy, and Mr. Pietrangelo brought a challenge to that decision, and the question was -- you know, he was challenging a decision that the -- the government very much approved of, which was a decision that upheld the "don't ask/don't tell" policy.
And we told the court, in no uncertain terms, not to take the case, and we defended the statute vigorously. We told the court not to take the case because the statute was constitutional.
So in that Pietrangelo brief that I filed -- and it's a brief on which I'm counsel of record -- the -- the -- the argument is made vigorously that the "don't ask/don't tell" statute is fully constitutional, given the appropriate standard of review, and particularly given the deference that courts properly owe to the military.
So the Pietrangelo brief is a brief -- and, again, I'm counsel of record on that brief -- in which the U.S. government vigorously defended the "don't ask/don't tell" policy and statute, more importantly, and told the court not to take a case which challenged a decision upholding that statute. [emphasis added]
And indeed, the brief Kagan filed in Petrangelo v. Gates did exactly what Kagan said. The brief Kagan filed stated:
Petitioner contends (Pet. i, 5-6) that this Court should grant a writ of certiorari to determine whether 10 U.S.C. 654 violates his substantive due process, equal protection, and free speech rights. The decision of the court of appeals is correct and does not conflict with any decision of this Court.
The brief then went on to defend the constitutionality of Don't Ask, Don't Tell on all of these grounds.
(It should be noted that the Solicitor General has an obligation to defend the constitutionality of federal statutes and, thus, her defense of Don't Ask, Don't Tell does not necessarily reflect her personal views on the subject.)
National Review Online's Carrie Severino attacked Elena Kagan for saying at her hearing that natural rights are, in Severino's words "irrelevant to her work as a judge because she would only be interpreting the Constitution and the laws of this country." But Kagan's statement that she would rely on the Constitution and laws rather than natural rights is completely noncontroversial, and indeed Justice Clarence Thomas made similar statements during his confirmation hearing.
During her hearing, Kagan testified to Sen. Tom Coburn (R-OK): "I believe that the constitution is an extraordinary document, and I'm not saying that I do not believe that there are rights preexisting that the constitution and the laws -- but my job as a justice is to enforce the constitution and the laws."
Severino said Kagan's exchange with Coburn was "painful." Severino later said "This is not the time for a potential Supreme Court justice to be iffy on the Declaration of Independence. So much for the right to Life, Liberty and the Pursuit of Happiness."
But Kagan's comments were noncontroversial. Indeed, her comments echo what Thomas said during his own confirmation hearing when he rejected the idea of using "natural law in constitutional adjudication." From Thomas' hearing:
As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.
From National Review Online editor Kathryn Jean Lopez's Twitter account:
Right-wing media--including Sean Hannity, The Drudge Report, National Review Online, and Hot Air--have abandoned conservative's oft-stated standard that Supreme Court should not answer certain questions in order to attack Elena Kagan's response to a line of questioning by Sen. Tom Coburn regarding the constitutionality of a hypothetical congressionally-mandated diet. In fact, Kagan was following the standard that conservative media have repeatedly urged and a standard that was used by conservative judicial hero Justice Antonin Scalia.
Kagan responsed to a question Coburn asked about whether a hypothetical federal law requiring Americans to eat fruits and vegetables is constitutional by explaining the constitutional precepts that the Court applies to Commerce Clause.
Coburn asked: "Is it within the constitution for me to write a bill having been duly elected by the people of Oklahoma to say -- and get it signed by the president -- that you have to eat three fruits and three vegetables every day?" Kagan -- who said such a bill would be a "dumb law" -- stated the principle that, under Supreme Court precedent, Congress' Commerce Clause power is broad, but Congress generally "can't regulate noneconomic activities, especially to the extent that those activities have traditionally been regulated by the states."
It seems that these media outlets are now suggesting that Kagan should specifically answer the question of whether the hypothetical law Coburn mentioned would be constitutional. But previously, conservative media and Republicans said that for Republican Supreme Court nominees John Roberts and Samuel Alito should not answer specific questions or discuss hypothetical cases during their confirmation hearings.
For instance, Hannity repeatedly suggested that Alito and Roberts didn't "have to answer specific questions." Republican Sen. Orrin Hatch (R-UT) specifically cautioned Roberts against answering specific or hypothetical questions. 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."
And during his 1986 confirmation hearing, Scalia -- a hero to conservatives -- specifically refused to answer questions on any constitutional issues saying that they might come before the Court. Scalia even refused to say whether he believed in Marbury v. Madison, the foundational Supreme Court case that established the power of the Supreme Court to strike down laws. (transcript from Scalia's hearing after the jump)
In recent days, right-wing media figures and outlets have attempted to make hay over Clinton-era documents which they falsely claim demonstrate Elena Kagan's "willingness to manipulate medical science" for political purposes. In fact, Kagan did no such thing. The documents in question center around the drawn out debate concerning late-'90s legislation which would have banned, under most circumstances, so-called "partial birth" abortions. The Clinton administration's position was that the ban would be acceptable, provided there was a narrowly-drawn exception to preserve the health of the pregnant woman. The Clinton administration also endorsed a ban on late-term abortions that also had a narrowly-drawn health exception.
Kagan served as a legal advisor to Clinton at the time and was involved in providing policy recommendations to the administration on the issue.
The right has seized on several documents and memos related to the Clinton administration's talks with the American College of Obstetricians and Gynecologists (ACOG) about an abortion procedure referred to as intact D&X (which ACOG determined was the likely target of the "partial birth" abortion proposals), and its necessity. In particular, they are highlighting a draft ACOG statement on pending legislation that would ban the procedure, in which the ACOG stated:
Terminating a pregnancy is indicated in some circumstances to save the life or preserve the health of the mother. Intact D&X is one of the methods available in some of these situations. However, a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. Notwithstanding this conclusion, ACOG strongly believes that decision about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman's particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D&X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and potentially dangerous.
In a December 14, 1996, memo, Kagan wrote that it would be a "disaster" if the ACOG issued this draft statement as its final statement. Kagan's files also include handwritten notes titled "suggested options," and those notes include language that mirrors ACOG's publicly released final statement on the "partial birth" abortion bill.
The right-wing blogs are screaming that this is evidence that Kagan interfered with "medical science" to advance the Clinton administration's politics. But Kagan did no such thing. ACOG's final statement is perfectly consistent with the draft statement and with ACOG's medical panel's assessment that it "could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman." Indeed, the panel's assessment was still included in ACOG's final statement on the issue.
And none of the right-wing media attacks have even plausibly suggested a way in which ACOG's draft statement and its final statement conflict.
Republicans spent a significant portion of the first day of the Elena Kagan hearing attacking Thurgood Marshall, the civil rights icon and the justice for whom Kagan clerked. Not willing to leave it to Republican senators, National Review Online has now joined in the attack.
In a June 29 post on National Review Online's Bench Memos blog, Robert Alt attacked Kagan for calling Justice Marshall's vision of the Court a "thing of glory."
Here's what Alt said in a post titled "What is a Thing of Glory?":
[I]f Kagan has a phrase that has caused her some difficulty, it is her praising as a "thing of glory" Justice Marshall's vision of the Court," which she characterized as demanding a special solicitude for the "despised and disadvantaged." In response to a question from Senator Kyl, Kagan said that what she meant by that phrase was that it was a thing of glory that the Court was open to all parties, particularly those who weren't able to get redress from other branches of government. But that reading is difficult to reconcile with what she actually said in the article, in which she stated: "And however much some recent Justices have sniped at that vision, it remains a thing of glory."
To accept Kagan's statement to Kyl, we would have to believe that justices were sniping about the Court being open to all parties. I don't recall any justice sniping about parties claiming injury getting their day in court. But some justices did recoil from Marshall's activist policies, such as those embodied by his infamous quote that "[y]ou do what you think is right and let the law catch up."
It is Marshall's quote that raises the real question for Kagan -- does she embrace a view of empathy, or solicitude for the despised and disadvantaged, or what have you that says that your policy preferences are more important than the law.
After the jump, you can read what Kagan actually said about Marshall in a law review piece in which she praised Marshall's vision that "demanded that the courts show a special solicitude for the despised and disadvantaged."
Conservatives media have falsely suggested that Justice Sonia Sotomayor testified untruthfully about her views on the Second Amendment and have used that false allegation to suggest that people should not believe Elena Kagan's testimony during her confirmation hearing.
The false allegation is based on (1) the fact that Sotomayor testified at her confirmation hearing that she "accepted" the Court's earlier decision that the Second Amendment created an individual right and (2) the fact that yesterday she dissented from a case that extended gun rights to states and local governments.
In fact, there is no inconsistency between Sotomayor's testimony and the dissent she joined yesterday on gun rights issues. The dissent she joined was critical of the reasoning in the Court's 2008 majority opinion in District of Columbia v. Heller -- the case that found that the Second Amendment protects an individual right to bear arms. But the dissent did not call for Heller to be overruled. Rather, the opinion stated that the individual right to bear arms should not be applied to state and local laws.
Moreover, the context of Sotomayor's testimony at her confirmation hearing makes clear that she was saying "accepted" the decision as a federal appellate judge -- the job she held at the time. Sotomayor was not that she would vote to uphold Heller as a Supreme Court justice.
Indeed, when discussing gun rights issues, Sotomayor testified that she "would not prejudge any question that came before me if I was a justice on the Supreme Court."
National Review Online blogger Hans A. von Spakovsky has published a thousand-word blog post urging that Senate delay the confirmation hearing for Elena Kagan. Not only are his arguments based on distortions and misinformation, but a key part of his argument -- that the Senate has not had sufficient time to review Kagan documents produced by the Clinton Library -- has just been refuted by the lead Senate Judiciary Committee Republican, Jeff Sessions (AL).
Von Spakovsky begins his blog post by complaining that there has not been enough time to review the documents that have been released:
The Senate hearing for Supreme Court nominee Elena Kagan starts on Monday, June 28. Sen. Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, has refused Republican requests to delay the hearing. The Republicans have a very good and justified reason for that request -- the huge number of documents that they have just been inundated with, a volume of material so large that it will be virtually impossible for the Senators and their staff to give it any meaningful review prior to the hearing. But then, that may be the very reason that Sen. Leahy has refused to reschedule Kagan's hearing.
But just today on CBS' Face the Nation, Sessions refuted the suggestion that there had not been sufficient time to review the Kagan documents that had been released. Asked by host Bob Schieffer whether Republicans would boycott the hearings because of concerns about the document productions, Sessions stated: "We've gotten quite a lot of documents. They came in a little sooner than I expected, frankly. We got them at least a week before the hearing instead of a day or hours." Sessions also stated that he would not boycott the hearing.
We've previously documented that National Review Online's Ed Whelan baselessly attacked Elena Kagan for a brief she filed asking the Supreme Court to overturn one aspect of a 2007 Arizona law dealing with illegal immigration (a different Arizona law from the recently-passed SB 1070 that has been so much in the news recently). Now another NRO blogger has joined in the baseless attack -- Mark Krikorian.
The attack is so ridiculous, we didn't think we'd have to revisit it, but here goes. First, the attackers -- try as they might to gloss over the fact -- have absolutely no evidence that the brief actually has Kagan's input. She didn't sign the brief, is not listed on the brief, and had recused herself from working on the matter by the time the brief was filed.
Second, without additional evidence -- which neither Krikorian nor Whelan has presented -- there's no reason to believe that any particular brief filed by the solicitor general's office represents the views of the lawyers who worked on the brief.
Third, Krikorian misrepresents the substance of the brief filed in the case.
And finally, according to Krikorian's fellow NRO blogger Jonathan Adler, the position taken in the brief is perfectly reasonable and probably correct.
Conservative media have falsely claimed that in hand-written notes Elena Kagan took as a Clinton administration official in 1996, she compared the National Rifle Association to the Ku Klux Klan. In fact, Kagan wasn't comparing the NRA to the Klan; rather, she was reportedly taking notes that reflected a Justice Department attorney's assessment of whether proposed legislation would shield volunteers for either of those two groups from lawsuits. Indeed, the supposedly controversial language in Kagan's notes reportedly echoed the language of a memo that attorney had sent to Kagan.