Wash. Times distorted Kagan's memo to Justice Marshall to claim she's anti-gun

From a June 10 Washington Times editorial headlined “Kagan's threat to gun owners”:

Ms. Kagan's defenders acknowledge her liberal political views but claim that as a judge, the former Harvard Law School dean will somehow manage to separate her judgments from her political opinions. The hitch is that her legal views correspond with her political views. When Ms. Kagan clerked for Justice Thurgood Marshall, she wrote, “I'm not sympathetic” to the claim that “the District of Columbia's firearms statutes violate [an individual's] constitutional right to 'keep and bear Arms.'”

At the time Kagan wrote her memo to Marshall, no Supreme Court or federal appellate court decision had found that the Second Amendment protected the right to carry guns for non-military purposes. In his dissent in District of Columbia v. Heller, a 2008 case, Justice John Paul Stevens cited United States v. Miller, a 1934 Supreme Court case that upheld a ban on sawed-off shotguns, and stated: “Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980.” Stevens also stated:

Until the Fifth Circuit's decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes.

In the legal context the phrase “not sympathetic” does not connote personal political views. Contrary to suggestions by the Times, Kagan's 1987 use of the phrase “not sympathetic” is not evidence that she was referring to her personal views. Numerous current and former Supreme Court justices -- including Samuel Alito, Clarence Thomas, William Rehnquist, and Stevens -- have used the term “sympathetic” to refer to agreement or disagreement with legal arguments.

Questioned about Marshall memos at SG hearing, Kagan said it was her job to “channel” Marshall's views. Responding to a question from Specter at her solicitor general hearing about the Marshall memos, Kagan said:

[L]et me step back a little, if I may, Senator, and -- and talk about my role as a clerk in Justice Marshall's chambers. You know, we produce an enormous amount of paper for Justice Marshall. He was not in what is called the cert pool, so we wrote memos on literally every single case where there was a petition. And that is hundreds and hundreds and -- probably thousands. And I'm sure that there were hundreds of criminal cases of which -- again, there was a blog post about -- about five -- about five of them.

But our view -- I don't want to say that there is nothing of me in these memos. You first asked about Boeing v. Kendrick. And I think it's actually fair when you look at that memo to think that I was stating an opinion, however wrong it may have been. 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.

You know, I was a 27-year-old pipsqueak and I was looking for a 90-year-old giant in the law, and a person who, let us be frank, had very strong jurisprudential and legal views. He knew what he thought about most issues. And for better or for worse, he wasn't really interested in engaging with his clerks on first principles. And -- and -- and he was asking us, in the context in those cert petitions, to think -- to channel him and to think about what cases he would want the courts to decide. And in that context, I think all of us were right to say, “Here are the cases which the court is likely to do good things with from your perspective, and here are the ones where they're not.” And I think that those five that you mentioned were doing. [emphasis added]

NYTimes: "[I]t is not clear how much the memorandums reflect her thinking today." From a June 3 New York Times report on the Marshall memo:

The three-page memorandum is one of hundreds Ms. Kagan wrote analyzing petitions to the Supreme Court during its 1987-88 term. Those documents, housed at the Library of Congress, constitute a rare paper trail that provides insight into her early legal policy views. Largely written with a liberal sensibility on a variety of matters from criminal rights to environmental regulations, the memorandums could provide ammunition to conservative critics of her nomination, while comforting liberal skeptics.

Still, it is not clear how much the memorandums reflect her thinking today. At her confirmation hearing to be solicitor general last year, Ms. Kagan sought to distance herself from them, saying that she no longer agreed with some and that her job as a clerk was to “channel” Justice Marshall's views.

But she also acknowledged some personal responsibility for the views in the documents, testifying that “I don't want to say that there is nothing of me in these memos,” and “I think that it's actually fair when you look” at a particular memorandum “to think that I was stating an opinion.”

Even NRO's Whelan commented: “Kagan's views 23 years ago don't necessarily reflect her views today.” Even National Review Online's Ed Whelan -- who has repeatedly attacked and distorted Kagan's record -- commented in a blog post that referenced a memo Kagan had written as a Marshall clerk:

It ought to go without saying--but, given the apparent tendency of some folks to misconstrue things, perhaps it's necessary to say--that Kagan's views 23 years ago don't necessarily reflect her views today. (emphasis in the original)

Times also distorted the record of Sotomayor on guns to claim Obama is “pack[ing]” the Court

Wash. Times claims that Sotomayor is Kagan's “soul sister when it comes to gun control.” From the editorial:

President Obama poses a real and present danger to the Second Amendment, and he's working to pack the Supreme Court with justices who will undermine Americans' gun rights.

[...]

Ms. Kagan is Justice Sonia Sotomayor's soul sister when it comes to gun control. Last year, during her confirmation hearings, Ms. Sotomayor insisted the Supreme Court had never found that an individual right to self-defense exists. Two of Justice Sotomayor's own appeals court decisions came to the same conclusion. One ruling denied there is an individual right to self-defense. In another case, even after the Supreme Court struck down the District's gun ban, Judge Sotomayor opined that any restrictions on self-defense would pass constitutional muster so long as politicians who passed it said they had a good reason.

Senators must realize that a vote for Ms. Kagan for the Supreme Court is another vote against gun rights

The Times falsely suggests that Sotomayor defied the Supreme Court's decision in Heller. The Times claimed that “even after the Supreme Court struck down the District's gun ban, Judge Sotomayor opined that any restrictions on self-defense would pass constitutional muster so long as politicians who passed it said they had a good reason.” However, in Heller, the Court dealt with a gun ban by a federal entity. The District of Columbia, while the case the Times referenced, Maloney v. Cuomo, dealt with a state level gun law. As Lyle Denniston noted on SCOTUSblog, in Heller, the Supreme Court “did not settle whether the [Second] Amendment operates against any level of government other than the federal government and a federal entity, the District of Columbia.”

2nd Circuit decision Sotomayor joined found that it was “settled law” that “the Second Amendment applies only to limitations the federal government seeks to impose.” In a January 28, 2009, per curiam opinion, the U.S. Court of Appeals for the 2nd Circuit found in Maloney v. Cuomo, “It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right,” citing 19th century precedent:

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. The Supreme Court recently held that this confers an individual right on citizens to keep and bear arms. See District of Columbia v. Heller, 128 S. Ct. 2783, 2799 (2008). It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right. See, e.g., Presser v. Illinois, 116 U.S. 252, 265 (1886) (stating that the Second Amendment “is a limitation only upon the power of congress and the national government, and not upon that of the state”); Bach v. Pataki, 408 F.3d 75, 84, 86 (2d Cir. 2005) (holding “that the Second Amendment's 'right to keep and bear arms' imposes a limitation on only federal, not state, legislative efforts” and noting that this outcome was compelled by Presser), cert. denied, 546 U.S. 1174 (2006). Heller, a case involving a challenge to the District of Columbia's general prohibition on handguns, does not invalidate this longstanding principle. See Heller, 128 S. Ct. at 2813 n.23 (noting that the case did not present the question of whether the Second Amendment applies to the states).

Seventh Circuit -- including Reagan appointees Easterbrook and Posner -- similarly cited precedent dating to 1876 in stating “The Supreme Court has rebuffed requests to apply the second amendment to the states.” Sotomayor and her colleagues are hardly alone in coming to this conclusion. Indeed, the U.S. Court of Appeals for the 7th Circuit -- in a decision written by Chief Judge Frank Easterbrook and joined by Judge Richard Posner, both conservatives appointed by President Reagan -- also held that the Second Amendment did not apply to the states. Easterbrook's decision cited some of the same cases that the 2nd Circuit cited. From the June 2, 2009, 7th Circuit per curiam opinion:

Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course.

The Supreme Court is currently considering an appeal of the Chicago case.

Times distorted Kagan's memo to claim she would be “an activist judge”

Washington Times distorted Kagan's memo to claim it “foreshadow[s] an activist judge” who would use “her own personal views to override policy decisions made by elected officials.” From the Times:

Her memos to Justice Marshall foreshadow an activist judge who wouldn't hesitate to fall back on her own personal views to override policy decisions made by elected officials. She clearly counseled Justice Marshall on how he should rule based upon whether she thought policies made “sense.” Take her advice in the case of Robertson v. Methow Valley Citizens Council, in which an appeals court stopped federal agencies from issuing a permit to build a ski lodge in a national forest. Ms. Kagan might feel that stopping ski resorts from such building makes “policy sense,” but that isn't the job of a judge.

But in Robertson, Kagan based her recommendation to Marshall on what was “consistent with the language and purposes” of the controlling federal statute. In Kagan's memo to Justice Marshall regarding the case of Robertson v. Methow Valley Citizens Council, Kagan recommended that Justice Marshall deny certiorari because she believed the U.S. Court of Appeals for the 9th Circuit's decisions were “consistent with the language and purpose” of the federal statute relevant to the case. Kagan also said that there was no split between the circuit courts and added that she believed the Court of Appeals decisions made “a great deal of policy sense.” For all these reasons, nad not because the decision made “policy sense” alone, she suggested that the Court refuse to hear the case. From the memo:

The question these two cases present is whether the National Environmental Policy Act (NEPA) requires federal agencies to include in each environmental impact statement: (a) a fully developed plan to mitigate environmental harm, and (b) a “worst case” analysis of potential environmental harm if relevant information is unavailable or too costly too [sic] obtain.

[...]

In essence, these two CA9 [Ninth Circuit] decisions require all environmental impact statements to contain detailed mitigation plans and to include a “worst case” analysis whenever the agency lacks information or adequate scientific methodology to determine precisely a potential environmental effect. The SG [Solicitor General] contends that these decisions have great practical significance because of the vast expanse of federal lands and the numerous planned and potential federal projects located within the CA9. I think the CA9 decisions are consistent with the language and purposes NEPA and make a great deal of policy sense. There is no circuit split. I therefore recommend a denial. [emphasis added]

Also, The Oxford Companion to the Supreme Court of the United States notes that federal appellate courts do in fact have a “policy making” role. From The Oxford Companion (2005):

The courts of appeals have also gained prominence because of the substance of their caseload. For their first twenty five years, these courts dealt primarily with private law appeals. Diversity cases (suits between citizens of different states), bankruptcy, patent, and admiralty cases made up most of their work. However, as federal regulation increased, first during the Progressive Era, then during the New Deal, and finally during the 1960s and 1970s, the role of the courts of appeals changed as appeals from federal administrative agencies became a larger part of their caseload. Other developments that increased these courts' policy making importance were the increased scope of federal prosecutions, especially those dealing with civil rights, drugs, racketeering, and political corruption, increased private litigation over various types of discrimination; and litigation concerning aliens' attempts to gain political asylum. Also adding to their importance were their post 1954 use to oversee school desegregation and reform of state institutions such as prisons and mental hospitals, along with controversies like that over abortion.