This morning on Face the Nation, host Bob Schieffer and CBS chief legal correspondent Jan Crawford talked up the effects of Crawford's report last week on memos Elena Kagan wrote while clerking for Thurgood Marshall. Schieffer seemed to suggest that Crawford's report was so significant that it might cause problems for Kagan's Supreme Court nomination. Schieffer said to Crawford that the White House had “thought she would be easily confirmed, I think. But you unearthed these documents that show that maybe she is not exactly how the White House had pictured her, that in fact, she might be a lot more liberal than people realized.”
Indeed, in her report last week, Crawford said that the memos showed that “Kagan stood shoulder to shoulder with the liberal left.” But the evidence Crawford relied on to reach this conclusion was missing context and misleading. For instance, Crawford reported that “Kagan also wrote a memo Republicans will use to say she would find a constitutional right to gay marriage.” Well, they could do that, but it would be pretty shameless.
Why? During her confirmation as solicitor general, Kagan explicitly stated, “There is no federal constitutional right to same-sex marriage.” That was last year, by they way -- perhaps a bit more revelatory of Kagan's current position than a memo she wrote during a clerkship more than 20 years ago. The memo in question also had nothing to do with same-sex marriage -- it dealt with a male prisoner in New York who wanted to marry a woman in Kansas through a proxy, which was banned in New York at the time. All Kagan told Marshall was that he should ask New York state to respond to the prisoner's request for the Supreme Court to hear the case.
Similarly, Crawford's report suggested that Kagan believed prisoners have a constitutional right to public funding for abortions. That's not even close to true.
It's also important to point out that during her previous confirmation hearing, Kagan was asked about these memos and the degree to which they represented her views. Kagan said that it was her job to “channel” Marshall's views. Kagan said, “I don't want to say that there is nothing of me in these memos. ... But I think, in large measure, these memos were written in the context of you're insistent for a justice. You're trying to facilitate his work and to enable him to advance his goals and purposes as a justice. And I think most of what we wrote was in that context.”
On Face the Nation, Crawford was puzzled as to why the White House would be upset by her report: “But the White House's reaction to this, to these revelations I think has been astonishing. ... Their reaction has been to push back so strongly on allegations, as they would put it, that she's a liberal, like there's something wrong with that, like it's a smear to say their nominee is a liberal.” At the end of her exchange with Schieffer, she said, "[T]he suggestion that it's somehow a smear to call her a liberal is just baffling to me."
Baffling? Really? There's nothing baffling about it. The White House is obviously interested in having its nominee confirmed, and when journalists use misleading information to call a Democratic judicial nominee “a lot more liberal than people realized,” Republican lawmakers will inevitably seize on that reporting as an opportunity to derail the nomination or, at the very least, to inflict political damage on the White House and congressional Democrats.
One can find evidence of this phenomenon on Crawford's own blog, in fact. The day after her initial report aired, Crawford wrote a post about Sen. Jeff Sessions, the ranking Republican on the Judiciary Committee, calling the memos “troubling” :
[A]s Sessions' comments reflect, Republicans now have ammunition to use in the fight against her--and appear ready to use it.
“The newly unearthed memos reveal not only Ms. Kagan's strong liberal views, but a willingness to bring those views into the courthouse - shaping and even replacing legal judgment,” Sessions said. “From issues such as guns to abortion to crime control, Kagan's memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the constitution.”
Again, this is not baffling at all. On Face the Nation, Schieffer and Crawford acknowledged this would happen:
SCHIEFFER: But this is, at the least, is going to give Republicans something to ask a lot of questions about.
CRAWFORD: Oh, absolutely. I mean, these hearings have now gotten much more interesting than a lot of people thought they were going to be going into the summer, when it was kind of going to be a yawn.
Well, at least the media won't be bored, right?