National Review Online blogger Ed Whelan has been widely quoted in media outlets spreading myths and falsehoods about Supreme Court nominee Elena Kagan.
Whelan claim: Kagan is unqualified because she hasn't been a judge
REALITY: Past justices had very little or no prior judicial experience before taking the bench. Dozens of Supreme Court justices had little or no judicial experience before taking the bench. William Rehnquist and Earl Warren -- two of the past four chief justices -- had never served as judges before being appointed. Both were nominated by Republican presidents. Former Chief Justice John Marshall, frequently referred to as the “great chief justice,” and former associate Justices Louis Brandeis and Felix Frankfurter also had no judicial experience at the time of their Supreme Court appointments. Justice Clarence Thomas had only been a judge for 16 months when he was nominated by then-President George H.W. Bush. Moreover, Republican Sen. Orrin Hatch (UT) has stated that “I have long believed that prior judicial experience is not a prerequisite for successful judicial service.”
- AP quoted Whelan spreading judicial experience myth. In a May 10 article, the Associated Press quoted Whelan saying: “Among Supreme Court nominees over the last 50 years or more, Kagan may well be the nominee with the least amount of relevant experience.”
- NY Times quoted Whelan attacking Kagan on judicial experience. In a May 9 article, The New York Times reported:
M. Edward Whelan III, president of the Ethics and Public Policy Center in Washington, wrote on National Review's Web site that even Ms. Kagan's nonjudicial experience was inadequate. “Kagan may well have less experience relevant to the work of being a justice than any entering justice in decades,” Mr. Whelan wrote.
The Times also reported: “Ms. Kagan defended her experience during confirmation hearings as solicitor general last year. 'I bring up a lifetime of learning and study of the law, and particularly of the constitutional and administrative law issues that form the core of the court's docket,' she testified. 'I think I bring up some of the communications skills that has made me -- I'm just going to say it -- a famously excellent teacher.' ”
- Whelan spread judicial experience myth on MSNBC. On the May 10 edition of MSNBC Live, Whelan said: “I think it's clearly a deficiency. 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.” Host Tamron Hall challenged Whelan's argument, noting that “the lack of judicial experience has already -- from at least her supporters -- has been shot down because they point to Justice William Rehnquist, the chief justice. He had no judicial experience.”
Whelan claim: Kagan actions with respect to Don't Ask, Don't Tell show she's an ideologue
REALITY: Kagan's objections to DADT are mainstream, and her willingness to comply with, and defend, Solomon Amendment demonstrates devotion to rule of law. Military veterans at Harvard University 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.” Furthermore, Kagan's objection to Don't Ask, Don't Tell is hardly extreme. For example, Adm. Mike Mullen, the chairman of the Joint Chiefs of Staff, has argued that the ban on openly gay service members compromises the military's “integrity.” Also, throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services or through the Harvard Law School Veterans Association. Furthermore, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the 3rd U.S. Circuit Court of Appeals ruled that law schools could do so. Moreover, during her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment, despite her personal views.
- Politico quoted Whelan saying her policy preferences on Don't Ask, Don't Tell show “she's let her policy preferences warp her legal views.” In a May 9 article, the Politico quoted Whelan saying:
“Kagan's actions on Don't Ask, Don't Tell and other gay-rights issues will be prominent, in part because this is one area where she's been vocal and in part because it appears that she's let her policy preferences warp her legal views. ... I doubt that the American public will be impressed that Kagan kicked the military off campus in wartime but welcomed law firms that were donating their services to terrorists.”
- On MSNBC, Whelan said Kagan “indulged her policy preferences” on Don't Ask, Don't Tell. Whelan said:
WHELAN: On those matters where she's been vocal, it's clear that she's indulged her policy preferences. You referred to the Solomon Amendment -- she excluded military recruiters from campus, you know, in the midst of wartime at the same time that she gave favored access to the law firms who were -- that were representing Guantánamo detainees. So I think that while that may be acceptable in liberal legal academia, I don't think that really resonates with American values.
Whelan claim: “Kagan Standard” means Kagan must answer questions about issues that will come before Supreme Court
REALITY: Roberts and Alito repeatedly refused to answer questions, and Republicans suggested it would be improper for them to do so. During their confirmation hearings, Chief Justice John Roberts and Justice Samuel Alito both repeatedly refused to answer questions about their opinions on legal issues and other topics. They often cited the fact that cases involving those issues might come before them as judges. Republicans currently serving on the Judiciary Committee agreed that it would be improper for Roberts and Alito to answer such questions. Moreover, Hatch has already suggested that Kagan shouldn't be held to the arguments set forth in a 15-year-old book review in which she suggested -- in the words of the Los Angeles Times -- that “senators should require nominees to talk about their views on legal controversies.”
- CBSNews.com and the Los Angeles Times quoted Whelan saying: “It's especially important that the Senate hold Kagan to the Kagan Standard” and force her to answer questions.
Whelan claim: Kagan's recusal obligations would be “significant”
REALITY: Kagan's recusal obligations would not be unusual. According to Supreme Court expert and SCOTUSblog writer Tom Goldstein, Kagan would likely have fewer recusals than Thurgood Marshall, the last solicitor general to become a Supreme Court justice, and no more recusals than Thomas or Justice Thomas Clark. Moreover, Goldstein wrote that Kagan would not have to recuse herself from a substantial number of cases after her first year on the bench.
- NY Times cites Whelan's argument that Kagan's recusal obligations would be significant. The Times also included Goldstein rejecting Kagan's analysis. From the Times article:
Like her former boss, Justice Marshall, who was the last solicitor general to go directly to the Supreme Court, Ms. Kagan may be forced to recuse herself during her early time on the bench because of her participation in a number of cases coming before the justices. Tom Goldstein, publisher of ScotusBlog, a Web site that follows the court, estimated that she would have to sit out on 13 to 15 matters. Mr. Whelan argued that it would be significantly more than that.