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.
National Review Online's Robert VerBruggen falsely claimed that in a document she wrote as a Clinton administration official, Elena Kagan "apparently tied the NRA to the KKK." In fact, Kagan did no such thing.
In a post for National Review Online's Bench Memos blog, Bradley C.S. Watson asserts that Solicitor General Elena Kagan's "nomination to the Supreme Court should give Americans reason to reflect on the progressive assault on the Constitution that has been ongoing for a century or more." In his post, he asks whether Kagan is "more concerned with establishing new command and control mechanisms that can be applied -- largely if not exclusively for progressive purposes -- to the American economy and moral-cultural order." In order to back up his claim, Watson distorts a law review article Kagan wrote beyond all recognition and claims that there are similarities between Kagan and Glenn Beck bogeyman Woodrow Wilson.
Elena Kagan understands progressive aspirations well. In a June 2001 Harvard Law Review article entitled "Presidential Administration," she argued that more direct presidential control over the details of administration could further the ends of the regulatory state. Furthermore, she made the case that courts should be deferential to such presidential administration in light of the fact that, in the Clinton years, "presidential supervision" served as a "mechanism to achieve progressive goals," including favoring regulation rather than trying to suppress it. She argued that courts should "recognize and promote this kind of control over agency policymaking" through various modifications of existing non-delegation and judicial review doctrines.
"The Study of Administration" was the title of one of Wilson's most influential essays. Like Wilson, Kagan has skillfully attempted to reinvigorate that study. She claims to be concerned with accountability and efficiency within the otherwise diffuse American system of divided powers and checks and balances. But is she more concerned with establishing new command and control mechanisms that can be applied--largely if not exclusively for progressive purposes--to the American economy and moral-cultural order? Senators have an obligation to ask her, and not take "maybe" for an answer.
But Kagan's law review article bears little resemblance to what Watson claims. First, Kagan did not argue that presidential power can or should be used "exclusively for progressive purposes." In fact, she argued the opposite. Kagan wrote that Democratic presidents and Republican presidents can both use presidential powers to better achieve their goals.
Second, unlike conservatives such as former President Bush, former Vice President Dick Cheney, and Bush administration lawyer John Yoo, she firmly embraced checks and balances, explicitly saying that Congress could limit the power of the president.
Indeed, Yoo -- the author of the infamous torture memos, which argued that the president had the power to override congressional statutes in the interest of national security -- has attacked Kagan for not being deferential enough to presidential power.
Right-wing media have falsely claimed that the White House offered Andrew Romanoff a job in exchange for dropping out of Colorado's U.S. Senate election, and have falsely alleged or suggested that the White House committed a crime in doing so. In fact, both Romanoff and the White House have said no formal job offer was made, and legal experts have repudiated the claim that this practice would constitute a crime.
Joining WorldNetDaily, Ed Whelan has repeatedly launched attacks against Solicitor General Elena Kagan for praising former Israeli Supreme Court Justice Aharon Barak. We previously pointed out that U.S. Supreme Court Justice Antonin Scalia has also praised Barak. But Whelan is not satisfied. Apparently, Scalia did not issue the right kind of praise in order to satisfy Whelan. (Although, Scalia reportedly was "singing Barak's praises" when he presented him with an award.) Well, here's another conservative who has praised Barak: Former Reagan administration Solicitor General Charles Fried.
Fried described Barak as "superhuman, a mythical character" who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."
During the same event in which Kagan praised Barak -- a 2002 event sponsored by the Harvard Law Review -- Fried spoke right after Barak did. Fried said (at the 42:45 mark of the C-SPAN video):
FRIED: The philosopher Ronald Dworkin -- in his, I think, chef-d'oeuvre, his absolutely best piece written many years ago and published in the Harvard Law Review, which was called "Hard Cases" -- develops a theory of judging. And his picture is of a judge, superhuman, a mythical character, whom he calls Hercules, who manages to integrate -- and I use the word integrate in the mathematical sense where you [gestures] -- manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer. It is a remarkable experience to be in the presence of and to have just heard a lecture from a living myth. Because Hercules lives, and you have just heard from him.
Get that? Fried said that Barak matched Ronald Dworkin's conceptual ideal of a judicial "Hercules," a judge who "manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer."
So much for Whelan's suggestion that Kagan is way outside the mainstream because of her praise of Barak.
Ed Whelan and Volokh Conspiracy blogger Stewart Baker are attacking Elena Kagan for a brief the Solicitor General's office filed asking the Supreme Court to overturn one aspect of an Arizona law dealing with illegal immigration. (No, not the controversial SB 1070 that was passed earlier this year, but another law, which was passed in 2006 and punishes businesses for hiring undocumented immigrants.) Their attack is bizarre.
First, as Whelan and Baker acknowledge, the brief -- which was submitted by the Solicitor General's office on May 28 -- does not bear Kagan's name, because Kagan had recused herself before the brief was filed. Second, another blogger at the conserviative-leaning Volokh Conspiracy, Jonathan Adler has taken issue with the attacks on the Solicitor General's brief. And third, the overwrought is internally contradictory.
Baker, a former Bush administration official attacked the Solicitor General's office for filing a brief in Chamber of Commerce v. Candelaria that argues that the Supreme Court should strike down a portion of an Arizona law that imposes punishment on businesses that hire illegal immigrants. Baker states: "The brief takes positions that from a political and policy point of view are hard to square with, well, sanity. In leaving little room for states to address a problem the feds haven't solved, the brief gets to the left of the Ninth Circuit, which upheld this law." Later in the blog post, Baker states: "What does all this say about Elena Kagan, woman of mystery and Solicitor General until two weeks ago? Nothing good, I fear."
Whelan highlighted Baker's comments about Kagan, stating: "I'll highlight here Baker's harsh criticism of Elena Kagan's presumed role in the matter:
In fact, though, as Baker acknowledges in a portion of his post quoted by Whelan, Kagan "stopped acting as Solicitor General on May 17, and this brief was presumably filed on May 28, when it was released." Indeed, Kagan's name is not on the brief that Baker and Whelan attack. Baker's and Whelan's attack is based solely on pure speculation about how much work Kagan did on the brief before recusing herself from working as Solicitor General because of her Supreme Court nomination. Furthermore, even if they did have such evidence, it wouldn't be evidence of Kagan's personal views on the issue. As Kagan said in written questions regarding her Solicitor General nomination:
I understand that role [of the Solicitor General] as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients.
Is Ed Whelan's Google still broken?
Last year, my colleague Sarah Pavlus noted that Ed Whelan speculated that there may be "Political Corruption" at the Congressional Research Service because it issued a report on selected opinions by Justice Sonia Sotomayor. Concluding his post, Whelan asked: "Has CRS ever before prepared an assessment of the record of a Supreme Court nominee?" A simple Google search would have answered the question for him. Even after Whelan updated his post to acknowledge that CRS had issued a report on Alito, Whelan suggested that CRS might not have issued reports prior to its reports on Alito and Sotomayor. Again, a simple Google search would have revealed that CRS did a report on Clarence Thomas as well.
The article reveals that Kagan may have been the only law school dean who used the Third Circuit's ruling as an excuse to discriminate against military recruiters (for background, see my point 2 here):
Boston College law professor Kent Greenfield, who founded the law school coalition, which ultimately lost its case at the Supreme Court, said he thinks that Harvard was the only school that stopped welcoming recruiters right after the 3rd Circuit ruling, although no one kept complete track.
Following a ruling by the U.S. Court of Appeals for the Third Circuit that a law requiring schools to give military recruiters equal access to campuses Kagan briefly applied Harvard's anti-discrimination to military recruiters. For one semester in 2005, Kagan barred Harvard Law School's Office of Career Services (OCS) from working with military recruiters due to the military's discriminatory "Don't Ask, Don't Tell policy." Nevertheless -- as the Post makes clear -- military recruiters continued to have access to Harvard students during that semester. During the rest of her deanship, Kagan made an exception to Harvard's anti-discrimination policy and allowed OCS to work with military recruiter.
Contrary to Whelan's suggestion that no other law schools restricted military recruiters, according to 2005 articles in the Yale Daily News and The New York Times, after the Third Circuit ruling, Yale Law School also refused to allow military recruiters to avail themselves of the facilities of its career office. In addition, according to the Yale Daily News, New York Law School, Vermont Law School, and William Mitchell College of Law also took actions similar to Harvard following the 3rd Circuit ruling.
Furthermore, the Joint Appendix filed in connection with the appeal of FAIR v. Rumsfeld to the Supreme Court contains statements from numerous law professors detailing their law schools' attempts to restrict military recruiters' access to career services offices.
Ed Whelan highlighted a Rasmussen Reports assertion that "[v]oters have an increasingly unfavorable opinion of Supreme Court nominee Elena Kagan" based on a recent Rasmussen poll. In fact, Rasmussen's findings are contradicted by other recent polls.
In a National Review Online blog post titled " 'Increasingly Unfavorable Opinion' of Kagan," Whelan stated: "By a margin of 47% to 41%, voters hold an unfavorable rather than a favorable view of Kagan." Whelan also claimed: "Voters also oppose Kagan's confirmation by a 3-point margin, 39% to 36%." Both these findings are contradicted by other polls. For instance, as noted by Pollingreport.com a Quinnipiac University poll of registered voters conducted between May 19-24 found that 48 percent of respondents "approved ... of President Obama's nomination of Elena Kagan to the Supreme Court," compared to 30 percent who disapproved.
In addition, a May 18-19 Fox News/Opinion Dynamics poll of registered voters found that 39 percent of respondents said that they would vote to confirm Kagan's nomination, compared to 29 percent who said they would vote against her nomination. The Fox News poll also found that 45 percent of respondents said that Kagan "is qualified to serve as a justice on the Supreme Court" compared to 26 percent who said she was not qualified.
From Jonah Goldberg's May 27 National Review Online post:
Don't get me wrong, I'm usually singing from the same "It's Obama's Fault and We Know It" songbook. But I just can't bring myself to agree with the folks who think that the BP spill is a major indictment of Obama. He may have handled the politics of this thing badly, by which I mean the P.R., but unless someone can explain how Obama could have "taken over" and fixed this faster, I think a lot of the criticism is overboard. Not all of it; it sounds like Bobby Jindal has some legitimate complaints. But the notion that B.P. isn't motivated to cap this thing as quickly as possible and so therefore Obama needs to lean on BP harder is nothing short of crazy talk. Obama could have been on vacation for the last month and I'd bet the tempo of the BP operation wouldn't have been one minute slower.
Ed Whelan claimed that, as dean of Harvard Law School, Elena Kagan "selectively" applied Harvard Law School's anti-discrimination policy when she restricted military recruiters from working with the law school's Office of Career Services (OCS). In doing so, Whelan makes a false contrast between Harvard's treatment of the American Red Cross and its treatment of military recruiters.
Most important, Whelan's continued suggestion that Kagan acted out of anti-military animus rather than because of Harvard Law School's antidiscrimination policies is contradicted by numerous facts: Kagan has repeatedly praised the military, veterans, and members of the armed forces. Iraq war veterans attending Harvard Law School wrote in a letter to the editor that Kagan has "created an environment that is highly supportive of students who have served in the military" and that "[u]nder her leadership, Harvard Law School has also gone out of its way to highlight our military service." according to the Harvard Law Record Iraq veteran Geoff Orazem said, "Kagan has great respect for the military."
Robert Merrill, a captain in the Marine Corps who is serving as a legal adviser to a Marine infantry battalion in Afghanistan and who graduated from HLS in 2008 wrote in a Washington Post op-ed that Kagan "treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association." And at Volokh Conspiracy, a group blog run by mostly conservative and libertarian law professors, George Mason University law professor Ilya Somin wrote: "I don't see any reason to believe that [Kagan's decision on military recruiters] reflects a general hostility towards the armed forces." Furthermore, according to data Media Matters for America obtained from Harvard Law School, military recruitment did not drop as a result of Kagan's decision to bar OCS from working with military recruiters during the spring 2005 semester.
In addition, Kagan's specific argument is nonsensical. To back up his attack that Kagan selectively applied Harvard's anti-discrimination policy, Whelan falsely contrasted Kagan's banning of military recruiters from working with the Office of Career Services with Harvard's decision to allow the "law school's Republican Club to sponsor a blood drive by the American Red Cross even though the Red Cross does not allow gay men to give blood. (The Red Cross currently supports a "data-based reconsideration" of the FDA ban on blood donations by gay men.)
Right-wing media figures have freaked out over a video of White House adviser John Brennan mentioning his love for "Al Quds -- Jerusalem," with some asserting that Brennan had used the "Islamist name" to refer to Jerusalem. In fact, "Al Quds" is simply the Arabic word for Jerusalem, which other prominent political leaders have also used.
Matt Drudge posted a headline stating that Elena Kagan is " 'Not Sympathetic' to Gun Rights Argument," referencing comments Kagan reportedly made in a 1987 memo about an appeal to the Supreme Court. In fact, the view that the Second Amendment does not protect civilian gun rights was generally accepted at the time Kagan wrote those words.
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.