UPDATED: Myths and falsehoods about Elena Kagan's Supreme Court nomination
Research ››› ››› MEDIA MATTERS STAFF
Media Matters for America has compiled an updated list of 38 myths and falsehoods about Solicitor General Elena Kagan's Supreme Court nomination.
CLAIM: Kagan "defied" the law and banned military recruiters from Harvard. Phyllis Schlafly claimed in her March 31 syndicated column that Kagan "defied the Solomon Amendment" -- a statute requiring schools to provide the same access to military recruiters that they provide to other potential employers or lose federal funding. Fox News' Sean Hannity falsely claimed that Kagan led an effort to "kick military recruiters off of the college campus."
REALITY: Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean. 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. Moreover, Kagan consistently followed existing law regarding access to military recruiters. Kagan briefly restricted (but did not eliminate) access to recruiters only after the U.S. Court of Appeals for the 3rd Circuit ruled that law schools could do so. As The New York Times explained in a May 6 article:
[Kagan's] management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing.
[E]ven when she ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students. [emphases added]
Moreover, during her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment.
CLAIM: Kagan's actions and statements on "Don't Ask, Don't Tell" and military recruiters were extremist and hypocritical. In an April 18 article, The Washington Post noted that Kagan had called the military's "Don't Ask, Don't Tell" policy "a profound wrong -- a moral injustice of the first order" and said her decision to continue allowing military recruiters to access Harvard's career center "causes me deep distress. ... I abhor the military's discriminatory recruitment policy." The Post quoted Ed Whelan suggesting that Kagan's quote was somehow "extreme":
"For someone who has been so guarded on so many issues, she used strikingly extreme rhetoric. 'Moral injustice of the first order' would seem fit for something like the Holocaust," said Ed Whelan, president of the conservative Ethics and Public Policy Center. "This is one issue that provides some jurisprudential clues as to how much her reading of the law will be biased by her policy views. If she is the nominee, that is an angle that I would press."
Whelan has separately claimed that the fact that Kagan relented to Bush administration pressure to allow military recruiters to access the career center is evidence that Kagan is a hypocrite who engaged in "cheap and contemptible moral posturing."
REALITY: Kagan's objections to DADT are mainstream, and her willingness to comply with and, as solicitor general, defend the Solomon Amendment demonstrates devotion to the rule of law. Kagan's moral 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 suggested that the ban on openly gay service members compromises the military's "integrity." Moreover, Kagan's decision to abide by the Solomon Amendment doesn't indicate hypocrisy; it indicates a commitment to the rule of law.
FACT: Kagan allowed military recruiters access to Harvard Law School's Office of Career Services. In the 1980s and 1990s, based on its anti-discrimination policy, Harvard Law School refused to allow military recruiters to use the school's Office of Career Services (OCS) because of the military's discriminatory "Don't Ask, Don't Tell" policy. In 2002, after the Bush administration threatened federal funding at Harvard, Kagan's predecessor as dean created an exception to Harvard's anti-discrimination policy and allowed military recruiters access to OCS. When Kagan became dean in 2003, she continued to allow military recruiters access to OCS.
FACT: After an appellate court -- including a Reagan appointee -- ruled Solomon Amendment unconstitutional, Kagan prohibited Harvard's career office from working with recruiters for one semester. In 2004, a three-judge panel of the 3rd Circuit held 2-1 in FAIR v. Rumsfeld that the Solomon Amendment violated First Amendment free-speech rights: "The Solomon Amendment requires law schools to express a message that is incompatible with their educational objectives, and no compelling governmental interest has been shown to deny this freedom." Judge Walter Stapleton, a Reagan appointee, joined the majority opinion in the case. Following the 3rd Circuit's ruling, Kagan revoked the military's exemption from Harvard's non-discrimination policy and reinstated the restrictions against military recruitment through OCS for one semester in 2005. After the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS. In 2006, the Supreme Court reversed the 3rd Circuit decision.
FACT: During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. The New York Times noted on May 6 that "even when [Kagan] ... briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students." As Kagan explained in a September 2005 letter to her colleagues:
The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.
I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season.
FACT: Harvard's non-discrimination policy applied to all employers, not just the military. As Supreme Court expert and attorney Tom Goldstein noted in a May 8 SCOTUSblog post: "Some commentators have claimed that Kagan's position on the Solomon Amendment reflects an anti-military bias. That criticism is unsound. Harvard's position -- which predates Kagan's tenure as dean -- was not directed at the military but instead is a categorical nondiscrimination rule applicable to all potential employers. It is a position that is widely shared among American law schools."
FACT: Dozens of law professors, other law schools, and the Cato Institute argued against government's interpretation of Solomon Amendment. Kagan's legal actions and statements regarding "Don't Ask, Don't Tell" were by no means extreme. As Media Matters has documented, Kagan joined a brief filed on behalf of 40 Harvard law professors arguing against the government's interpretation of the Solomon Amendment. Briefs filed on behalf of 100 other law professors also argued against the Solomon Amendment or the government's interpretation of that amendment, as did other organizations, including the Cato Institute.
FACT: Numerous law schools restricted military recruiters' access because of the discriminatory "Don't Ask, Don't Tell" policy. 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. Following the 3rd Circuit's decision, in addition to Harvard, Yale and New York Law School also reportedly reinstituted their restrictions against military recruiters.
FACT: Mullen said DADT compromises military's "integrity." While conservatives like Whelan have claimed Kagan's rhetoric opposing the ban on openly gay service members is somehow extreme, Mullen has similarly argued that the policy compromises the military's "integrity." In February 2 Senate testimony, Mullen stated:
Mr. Chairman, speaking for myself and myself only, it is my personal belief that allowing gays and lesbians to serve openly would be the right thing to do. No matter how I look at the issue, I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens.
For me, personally, it comes down to integrity -- theirs as individuals and ours as an institution.
I also believe that the great young men and women of our military can and would accommodate such a change. I never underestimate their ability to adapt.
FACT: Kagan pledged to defend Solomon Amendment as solicitor general despite her personal views. In a written statement during her confirmation process for solicitor general, Kagan wrote:
As I stated at my confirmation hearing, I know well the facts and issues involved in Rumsfeld v. FAIR, 547 U.S. 47 (2006), and I feel confident in saying that had I been Solicitor General at the time that the 3rd Circuit held the Solomon Amendment unconstitutional, I would have sought certiorari in the Supreme Court, exactly as then-Solicitor General Paul Clement did. A fortiori, now that the Supreme Court has upheld the Solomon Amendment, if confirmed I would vigorously defend it against constitutional challenge. I would not recuse myself from participating in or personally arguing such a case because I would feel confident in my ability to supply such a defense given the responsibilities and role of the Solicitor General. I understand that role 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. And as I hope I expressed at my confirmation hearing, I would take enormous pride in representing and advancing the interests of the United States as a client -- even if I would not myself have voted for every one of its statutes. [emphasis added]
CLAIM: Kagan is an "anti-military loon" with "hostility to the U.S. military." Bill Kristol wrote on The Weekly Standard's blog that Kagan's position on military recruiters at Harvard reflected "hostility to the U.S. military," and Gateway Pundit blogger Jim Hoft called Kagan an "anti-military loon."
REALITY: Kagan's support of the military is well established. Kagan has repeatedly praised the military -- describing it as the "noblest of all professions" -- even while opposing the "Don't Ask, Don't Tell" policy. Military veterans at Harvard Law have affirmed Kagan's support for the military.
FACT: Kagan repeatedly praised military, cadets in West Point speech. In an October 17, 2007, speech at the United States Military Academy at West Point, New York, Kagan repeatedly praised the military, stating: "I am in awe of your courage and your dedication, especially in these times of great uncertainty and danger." She went on to say:
I don't accept many outside speaking invitations; this may be the only talk of this kind that I'll give this year. I accepted this invitation primarily to thank all of you senior cadets -- and to wish you godspeed as you go forward to serve your country and your fellow citizens in the greatest and most profound way possible.
In part because of these connections, still more because of the vital role the military plays in the well-being of our country, I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds -- indeed, facing each other in court -- on one issue. That issue is the military's don't-ask-don't-tell policy. Law schools, including mine, believe that employment opportunities should extend to all their students, regardless of their race or sex or sexual orientation. And I personally believe that the exclusion of gays and lesbians from the military is both unjust and unwise. I wish devoutly that these Americans too could join this noblest of all professions and serve their country in this most important of all ways.
But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not. And I would regret still more if that disagreement created any broader chasm between law schools and the military. It must not. It must not because of what we, like all Americans, owe to you. And it must not because of what I am going to talk with you about tonight -- because of the deep, the fundamental, the necessary connection between military leadership and law. That connection makes it imperative that we -- military leaders and legal educators -- join hands and be partners.
FACT: Kagan has repeatedly praised the military even while opposing DADT. In an October 6, 2003, email announcing that Harvard Law School would allow military recruiters on campus, Kagan wrote that "[t]he importance of the military to our society -- and the extraordinary service that members of the military provide to all the rest of us -- makes this discrimination [against gay troops] more, not less, repugnant," a sentiment she reiterated in a 2005 letter offering "background" on the school's position on military recruiting on campus. In October 2004, Kagan reportedly said in protest of the ban on openly gay troops: "These men and women, notwithstanding their talents, their conviction, their courage, cannot perform what I truly believe to be the greatest service a person can give for their country. And that's just wrong, that's just flat out wrong." In a 2008 statement on the military recruiting issue, Kagan wrote, "The military is a noble profession, which provides extraordinary service to each of us every day."
FACT: Veterans at Harvard Law, conservative legal blog have rejected claim that Kagan is "anti-military."
- Harvard Law veterans: "Kagan has great respect for the military." Responding to a January 30, 2009, Washington Times op-ed by Flagg Youngblood labeling Kagan an "anti-military zealot," three 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." The Harvard Law Record later reported on the veterans' letter, quoting Iraq veteran Geoff Orazem as saying, "Kagan has great respect for the military."
- Conservative legal blog: No reason to believe Kagan is hostile to the military. At Volokh Conspiracy, a group blog run by mostly conservative 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."
CLAIM: Kagan is a "radical" who is "outside the mainstream." Conservatives have indicated they will brand any Obama Supreme Court nominee -- including Kagan -- as a radical. For example, conservative activist Richard Viguerie has reportedly said, "The more quickly we can identify [the nominee] as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is." Similarly, Fox News' Glenn Beck has said that President Obama is going to pick a "radical" nominee. In a March 19, 2009, Family Research Council Action press release, Tony Perkins claimed that Kagan "is well outside the mainstream of public opinion and to the left even of President Obama."
FACT: Kagan is considered to be relatively moderate. Reuters noted on May 7 that Kagan is "considered one of the more moderate choices on Obama's short list of potential court nominees."
FACT: Numerous conservatives have praised Kagan.
- NRO's Daniel Foster praised Kagan as being "well-respected by just about everybody on both sides." In an April 9 post on The Corner, National Review Online news editor Daniel Foster wrote that Kagan "is well-respected by just about everybody on both sides."
- Bush assistant AG: "Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met." In a letter supporting Kagan's nomination for solicitor general, Jack Goldsmith -- former assistant attorney general for the Office of Legal Counsel during the Bush administration -- stated: "It might seem over the top to say that Kagan combines principle, pragmatism, and good judgment better than anyone I have ever met. But it is true."
- Starr, Olson and bipartisan group of former solicitors general: Kagan held in "high regard" by "persons of a wide variety of political and social views." In a letter sent by people who "serv[ed] as Solicitor General over the past quarter century, from 1985 to 2009," Charles Fried, Kenneth Starr, Drew Days, Walter Dellinger, Seth Waxman, Theodore Olson, Paul Clement, and Gregory Garre stated:
The well-deserved stature that Kagan has achieved in the legal profession will enhance her tenure as Solicitor General, ensuring that, within the executive branch, her voice and the conclusions reached by the Solicitor General will be accorded the highest respect. The extraordinary skill she has demonstrated in bringing to Harvard an impressive array of new scholars, her ability to manage and lead a complex institution, and the high regard in which she is held by persons of a wide variety of political and social views, suggest that she will excel at the important job of melding the views of various agencies and departments into coherent positions that advance the best interests of the national government.
- Former Bush lawyer Berenson lauded Kagan's "fair-minded consideration of competing views." From a letter by former Bush administration associate White House counsel Bradford Berenson supporting Kagan's solicitor general nomination:
Her legal acumen is more than equal to the task she faces, as reflected in her scholarship. The spirit of toleration and fair-minded consideration of competing views she brought to the Deanship reflect the sort of temperament and judgment that will inspire confidence in the Justices of the Supreme Court as well as the private parties with whom she will need to interact as SG. The same institutional loyalty that has enabled her to put Harvard Law School's interests ahead of her own will undoubtedly cause her to do likewise in service of the United States.
Steve Hayes: Kagan is "persuasive to people who might not otherwise be predisposed to agree with her." On the May 7 edition of Fox News' Special Report, Fox News contributor Steve Hayes stated that Kagan is "someone who can make convincing and compelling arguments and marshal her arguments in a way that is persuasive to people who might not otherwise be predisposed to agree with her. And I think you're seeing that to a certain extent in the sort of half-embrace that she's getting from some conservatives, particularly conservative academics."
CLAIM: Kagan's praise for Aharon Barak is outside the mainstream. WorldNetDaily.com, National Review Online's Ed Whelan, and former Judge Robert Bork baselessly suggested Kagan is not mainstream because she reportedly once called retired Israeli Supreme Court Justice Aharon Barak "my judicial hero."
REALITY: Kagan is not alone in praising Barak -- prominent conservatives have praised him as well. Kagan's praise for Barak is hardly evidence that she is outside the mainstream. U.S. Supreme Court Justice Antonin Scalia reportedly sang Barak's praises while presenting him an award. And former Reagan administration Solicitor General Charles Fried called Barak "superhuman."
FACT: Former Reagan SG praised Barak at same event in which Kagan praised Barak. At the same event in which Kagan praised Barak, 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." From the event (at the 42:45 mark of the C-SPAN video):
FRIED: The philosopher Ronald Dworkin -- in his, I think, chef-d'ouvre, 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.
FACT: Conservative Justice Scalia reportedly praised Barak while presenting him with an award. In addition, in a July 10, 2007, profile of Barak in the Jewish Daily Forward, Benjamin Soskis wrote that Scalia presented Barak with the American Association of Jewish Lawyers and Jurists' Pursuit of Justice in March 2007. Soskis wrote that Scalia was "singing Barak's praises," even as he "addressed the other obvious disparity between himself and the honoree."
CLAIM: Kagan's thesis shows that she was a radical or a socialist. On his May 10 radio show, Beck said, "The new justice ... has been named, Elena Kagan. Another left activist." Glenn Beck discussed Kagan's college thesis -- which was titled, "To the Final Conflict: Socialism in New York City, 1900-1933" -- claiming that it was a "call to action" for socialists, while show producer Pat Gray said it "sounded like she was endorsing" socialism. On the May 10 edition of his Fox News show, Sean Hannity said: "Now the administration may also have been a fan of Kagan's senior thesis, in which she explored the history of the socialist movement here in the U.S. So is this just another Obama radical being elevated to the highest levels of our government?"
REALITY: Kagan is not and was not a radical or a socialist; her thesis simply explored historical questions about socialism. Kagan did not express personal support for socialism or radicalism in her 130-plus-page undergraduate senior thesis, which she wrote as a history student at Princeton in 1981. Rather, she explored the historical question of why socialism did not become a major political movement in the United States as it had elsewhere in the world. Specifically, Kagan discussed the rise and fall of socialism in New York City in the early 20th century, with a particular emphasis on why the movement collapsed. Kagan's thesis adviser has said that Kagan has never been a socialist, and one of her college peers described her views in college as "well within the mainstream of the ... sort of liberal, democratic, progressive tradition." Despite the fact that Kagan's thesis is publicly available, Republicans did not raise the issue during her confirmation as solicitor general, suggesting that none of them believed that she was actually a socialist. Moreover, during Justice Samuel Alito's confirmation hearing, conservatives criticized Democrats for focusing on what Alito did in college.
FACT: Republicans did not raise thesis "socialism" issue during Kagan's solicitor general confirmation. The title of Kagan's thesis is publicly available on Princeton's website, and the thesis itself can be easily obtained by contacting Princeton. Thus, if Republicans actually believed the thesis is evidence that Kagan harbored socialist views, they presumably would have raised the issue during her confirmation for solicitor general in 2009. But at no point during Kagan's February 10, 2009, Senate hearing, the written questions following the hearing, or the March 19, 2009, floor debate on her nomination did any senator -- Republican or Democratic -- address Kagan's undergraduate thesis or concerns that she held socialist beliefs.
2009: Kagan's thesis adviser told Salon that Kagan "is not a socialist" and that she was asking "an absolutely standard" historical question in her thesis. In a May 8, 2009, post, Salon.com senior writer Alex Koppelman quoted Kagan's thesis adviser, Princeton professor Sean Wilentz, disputing claims that Kagan's thesis indicates she's a socialist:
Princeton History Professor Sean Wilentz, who served as Kagan's thesis advisor (and who has previously written for Salon) told Salon that she is not a socialist, and that the question she was asking with the paper "was an absolutely standard" one about why the U.S. hasn't had the same kind of radical movements that have flourished in the rest of the world.
"Was she sympathetic to the socialists? Only insofar as the socialists were raising urgent issues about industry and labor even before unions were quite legal nationwide," Wilentz says. He added, "I'm proud of [the thesis]... I wasn't the only one who liked it. She went on to win the Sachs fellowship to Oxford, which is about as prestigious a fellowship as Princeton awards."
2009 Daily Princetonian report on Kagan's thesis extensively quoted Kagan's college peers saying she wasn't a political radical. From a May 15, 2009, Daily Princetonian article:
In light of this speculation, Michael Goldfarb '02 argued in a blog post last week for The Weekly Standard that it is important to closely examine Kagan's undergraduate thesis on socialist movements in early 20th-century New York, saying it indicates political attitudes "sympathetic to the socialists."
Several people here at the University who knew her as an undergraduate, however, said Kagan is not a political radical.
"She's been called a left-wing crazy for what she wrote under my direction," said history professor Sean Wilentz, who was Kagan's thesis adviser. "I gather that [the] publicists ... of the conservatives are trying to raise all kinds of bogeymen around her. That is a mark of how formidable a candidate she would be."
Calling her "the opposite of an ideologue," Wilentz added that he thinks Kagan would be a "very pragmatic liberal" voice if nominated to the Supreme Court.
"There's nothing dogmatic about her approach," said Steven Bernstein '81, who worked with Kagan at The Daily Princetonian, where she served as the editorial chairman of the 104th Managing Board. He noted especially that "[Kagan's] views on presidential power and executive power were sometime more in line with Republicans."
Marc Fisher '80, one of Kagan's classmates at the University and someone who also knew her from her days at Hunter College High School in New York, also emphasized Kagan's moderate approach during her college years to social issues like apartheid in South Africa.
"She was not the kind of person who would get involved in [anti-apartheid] protests [at Princeton]," Fisher said. "She could step back and observe. She was not one of the people who would bang on doors and hold sit-ins."
Fisher and other classmates also said Kagan was a thoughtful and studious undergraduate during her years at the University.
"[Kagan] was very deliberate in her thought process -- extremely focused and balanced in her judgments," Jason Brown '81 said. "A lot of college kids would start with the conclusion and then look for the facts to back it up. I didn't have that sense with Elena."
Fisher echoed Brown's sentiment, saying, "She has always been a very devoted and serious student and someone who's always had a purpose about her."
In 2010, Kagan thesis adviser again said: "Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period." From a May 3 Daily Princetonian article:
Under Wilentz's direction, Kagan spent her senior year conducting research for her thesis on the history of the socialist movement, which was titled "To the Final Conflict: Socialism in New York City, 1900--1933." Her thesis has been criticized by her opponents for revealing sympathies with the Socialist Party and became a source of controversy when she was a potential nominee for Associate Justice David Souter's seat on the Supreme Court last spring -- a position which instead went to Sonia Sotomayor '76 -- and when she was nominated for her current position of solicitor general in January 2009.
"Americans are more likely to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness," she wrote in her thesis. "Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation."
She called the story of the socialist movement's demise "a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America ... In unity lies their only hope."
But Wilentz defended Kagan against her critics, noting that she was adept at removing her personal beliefs from her academic research on labor and radical history. "Sympathy for the movement of people who were trying to better their lives isn't something to look down on," he explained. "Studying something doesn't necessarily mean that you endorse it. It means you're into it. That's what historians do."
Kagan said in her thesis acknowledgements that her brother's "involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas."
Yet even if a deeper understanding of the Socialist movement helped Kagan understand her own beliefs, she did not follow her brother's path.
"Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period," Wilentz explained.
Kagan peer: Kagan's views were "well within the mainstream" of progressive politics. From a May 3 Daily Princetonian article:
Like Wilentz, Steven Bernstein '81, the 'Prince' chairman who appointed Kagan to her position, said that Kagan's remarkable intellectual capacity made her stand out.
"Elena was an obvious choice for me as editorial page editor because she formulated her opinions beautifully, even back then," he said. "They were very tightly reasoned, clearly thought-out, fair, forceful, cogent."
Bernstein said that he could not recall Kagan discussing her political affiliations, in spite of the long hours they spent together -- and the long conversations they had -- and does not even know if she was registered to vote. Because of her affiliation with the 'Prince,' Kagan was prohibited from participating in any obvious political displays.
"I don't remember her participating in marching, protesting, things like that," he said. "I would probably describe her back then -- her politics -- as progressive and thoughtful but well within the mainstream of the ... sort of liberal, democratic, progressive tradition, and everything with lower case."
WSJ criticized Dems for focusing on Alito's "ancient association" with group at Princeton. From a January 12, 2006, Wall Street Journal editorial:
It's a sign of how little Democrats have on Supreme Court nominee Samuel Alito that on Day Three of his confirmation hearings they were still pounding away on his membership in an obscure Princeton alumni group that flowered briefly at the judge's alma mater. They can't touch him on credentials or his mastery of jurisprudence, so they're trying to get him on guilt by ancient association.
Senators Ted Kennedy and Chuck Schumer did their best yesterday to imply that Judge Alito was racist and sexist by linking the nominee with the views of some members of Concerned Alumni of Princeton, which back in the 1970s and 1980s took issue with university policies on coeducation and affirmative action. The questioning was mean enough that Judge Alito's wife left the hearing room after GOP Senator Lindsey Graham apologized for the comments of his fellow Senators. "Are you really a closet bigot?" Mr. Graham asked the nominee. "No, sir, you're not."
Judge Alito doesn't recall being a member of CAP, but says that if he was it must have been because he shared CAP's concern about keeping ROTC on campus. For the sin of not recalling, he was then tarred as dishonest. Senator Kennedy demanded to know whether Judge Alito had read various articles on CAP that had appeared more than two decades ago, including an editorial that ran in these columns on January 17, 1985.
Much as we like our own work, even we confess to having forgotten about that editorial. We'd like to think Senator Kennedy reads us so assiduously that he knew just where to look, but something tells us his staff dug it up from our computer archives. But we appreciate the unlikely plug. (You can find the editorial here.) As for Judge Alito's prospects, if this irrelevant arcana is the most his opponents have, he can start measuring his new judicial robes.
GOP Sen. Allen approvingly quoted WSJ "ancient association" criticism. From a January 25, 2006, floor statement by then-Sen. George Allen (R-VA):
Judge Alito was even forced to defend the statements of others when he was questioned about the Concerned Alumni of Princeton. That is a group that apparently Judge Alito joined when he was a member of the Armed Services because he didn't agree with the way the military was treated on the Princeton campus. As a result, some of the Democratic Senators tried to diminish Judge Alito. The Wall Street Journal had an editorial on January 12 of this year where they said they are trying to find him guilty by "ancient association.'' Let me quote from the Wall Street Journal editorial page of that date.
They can't touch him on credentials or his mastery of jurisprudence, so they're trying to get him on guilt by ancient association. Senators TED KENNEDY and CHUCK SCHUMER did their best yesterday to imply that Judge Alito was racist and sexist by linking the nominee with the views of some members of Concerned Alumni of Princeton, which back in the 1970s and 1980s took issue with university policies on coeducation and affirmative action.
Of course, Judge Alito said he didn't agree with any of that. He was concerned about fair access for our military recruiters on campus.
The closing lines in the Wall Street Journal editorial stated:
As for Judge Alito's prospects, if this irrelevant arcania is the most his opponents have, he can start measuring his new judicial robes.
Myth: Conservatives can credibly argue that Kagan's personal and political views are relevant to confirmation process
CLAIM: Kagan's personal and political views are relevant to confirmation process. Hannity and Beck have falsely suggested Kagan's college thesis shows she is a socialist or radical and that it is somehow relevant to her nomination. 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.
FACT: Hannity: "[T]he nominees' personal opinions are irrelevant." In pushing the false claim that Kagan's thesis shows she is a socialist, conservatives have also ignored their own standard that a nominee's personal and political views are "irrelevant" to the confirmation process. For example, on the June 28, 2001, edition of Fox News' Hannity & Colmes (accessed via Nexis), Hannity asserted: "But I -- but what bothers me about this -- the reason that the Senate has advice and consent and it doesn't include an ideological litmus test is because the nominees' personal opinions are irrelevant, as they're supposed to set those aside and rule as a matter of law. And it seems to me that they want to disqualify anybody because they have an opinion but which they're supposed to put aside."
FACT: Wash. Times criticized Schumer for "outrageous rationale for rejecting judicial nominees based on ideology." In a July 24, 2001, editorial (accessed via Nexis), The Washington Times wrote: "Mr. Schumer lay down what can only be described as an outrageous rationale for rejecting judicial nominees based on ideology; or, more specifically, for rejecting nominees for thinking beyond the 'mainstream' -- the Democratic 'mainstream,' that is, particularly on political flash points such as abortion and race."
FACT: Wash. Times advanced conservative argument that opposing a nominee on basis of "political views" is "outside the mainstream of our entire constitutional tradition." In a June 5, 2001, editorial (accessed via Nexis), the Times quoted Bush judicial nominee Christopher Cox's complaint to Sen. Barbara Boxer that she had "made it clear that you believe it is acceptable to oppose a prospective judicial nominee on the basis of his or her political views," but "this view is outside the mainstream of our entire constitutional tradition." The editorial went on to assert: "Once upon a time, this was the stuff of high school civics courses. Now, U.S. senators such as Mrs. Boxer and her ideological cohorts on the Judiciary Committee seem to be in dire need of remedial help."
FACT: Conservative activist Wendy Long: A nominee's "personal and political views are irrelevant." In an October 3, 2005, CNN appearance discussing Harriet Miers' nomination to the Supreme Court (accessed via Nexis), Wendy Long, legal counsel to the conservative Judicial Confirmation Network and a former law clerk to Justice Clarence Thomas, said: "[S]he pretty clearly signals that she shares his [President Bush's] judicial philosophy. And the key to that is, politics is different from judging. They will not legislate from the bench. Her personal and political views are irrelevant. She's just going to very modestly and strictly interpret the constitution and laws. It's a lot of what we heard from John Roberts, but it's the president's judicial philosophy."
Myth: "Kagan Standard" means Kagan must answer questions about issues that will come before the Supreme Court
CLAIM: Kagan must abide by her 15-year-old argument that nominees should answer questions on issues that will come before the Court. Whelan published a May 3 blog post titled "The Kagan Standard on the Supreme Court Confirmation Process." Whelan wrote: "Given the possibility that President Obama will nominate Solicitor General Elena Kagan to the Supreme Court, it's worth highlighting that Kagan has set forth in writing her carefully considered views on how the Supreme Court confirmation process ought to proceed." Whelan included quotes from a book review Kagan wrote in 1995 on the subject of judicial confirmations, in which Kagan argued -- in the words of the Los Angeles Times -- that nominees should be "forced to say what they think about disputed issues such as abortion, affirmative action and privacy." Neither Whelan nor the Times noted that Republicans currently on the Senate Judiciary Committee have argued that it would be improper to require nominees to answer such questions.
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, both Roberts and Alito 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, Sen. Orrin Hatch (R-UT) has already suggested that Kagan shouldn't be held to the arguments set forth in her book review.
FACT: Roberts repeatedly refused to answer questions during his confirmation hearing. According to a September 15, 2005, The New York Times article, Roberts refused to answer questions on more than 50 occasions.
FACT: Republican senators suggested it would be improper for Roberts and Alito to answer questions on specific issues that might come before the Supreme Court.
- Kyl said Roberts refusing to answer questions "in ways that could signal how he might rule" is "the proper standard." Before the September 22, 2005, vote on Roberts' nomination to the Supreme Court, Kyl stated: "In my opening remarks, I told John Roberts that I would defend his position in complying with the canons of judicial ethics, and the traditions of the committee not to testify in ways that could signal how he might rule on a matter that was likely to come before the court. That is the proper standard, he adhered to that standard, and I defend his right to do so" (from Nexis).
- Cornyn: "No one is entitled to know ... how Judge Roberts will rule" on hot-button issues. During the September 22, 2005 edition of PBS' The NewsHour with Jim Lehrer, Cornyn stated: "I submit that particularly in courts of law, no one -- no one is entitled to know ahead of time what the outcome will be because the very premise of our judicial process is that courts are supposed to be fair and listen to both sides, or all sides of an argument. The judges are supposed to be disinterested in the outcome, and impartial, and that judges finally be independent of the political process. So no one is entitled to know what Judge Roberts -- how Judge Roberts will rule on these hot-button issues of the day. No one is."
- Hatch: "Nominees may not be able to answer questions that seek hints" about how they would rule. During the Roberts hearing, 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."
- Grassley: "I'm hoping we won't see a badgering of the nominee about how he'll rule on ... possible issues that will or may come before the Supreme Court." Also during the Roberts hearing, Sen. Charles Grassley (R-IA) stated: "I'm hoping that we won't see a badgering of the nominee about how he'll rule on specific cases and possible issues that will or may come before the Supreme Court." Grassley also said, "And let me remind my colleagues that Justices Ginsburg and Breyer refused to answer questions on how they would rule on cases during their confirmation hearings."
FACT: Hatch has already suggested that Kagan shouldn't be held to the arguments in her book review. During the confirmation hearing on Kagan's appointment as solicitor general, Hatch discussed Kagan's article on what questions a nominee should answer. He said: "If you want to know the truth, I remember when Judge Bork was here. He has written some outlandish things from time to time. But he was absolutely brilliant. And he did it more as an academic, as a teacher. And some on this committee held that against him very badly. But the fact of the matter is that I don't -- I think it's good for teachers to raise all kinds of issues and all -- on all sides of cases." From the hearing (from Nexis):
HATCH: Well, in your book -- in your review of, Professor, Stephen Carter's book on the confirmation process, you wrote that the Senate should ask judicial nominees about their views on constitutional issues, the direction they would take the court, and even about votes that they would cast. Now, I'd like...
KAGAN: The -- the...
HATCH: Even about votes they would cast. How do you square this with the principle that judges must be impartial and with the oath they take to provide justice without respect of persons?
KAGAN: It's a great question, Senator. And I'm not sure that, sitting here today, I would agree with that statement.
I was -- I was -- I wrote that piece after I had worked on -- on this committee. I had the privilege of...
HATCH: If you want to know the truth, I remember when Judge Bork was here. He has written some outlandish things from time to time. But he was absolutely brilliant. And he did it more as an academic, as a teacher. And some on this committee held that against him very badly. But the fact of the matter is that I don't -- I think it's good for teachers to raise all kinds of issues and all -- on all sides of cases.
KAGAN: Right. Right.
HATCH: And you're good at that.
KAGAN: Well, thank you, Senator. I was just going to say, you know, I wrote that when I was in a position of sitting where the staff is now sitting, and feeling a little bit frustrated that -- that I really wasn't understanding completely what the judicial nominee in front of me meant, and what -- what -- what she thought.
But I think that you're exactly right, of course, that there are other -- that -- that this has to be a balance. The Senate has to get the information that it needs, but as well, the nominee for any particular position, whether it's judicial or otherwise, has to be protective of -- of certain kinds of interests, and you named the countervailing ones.
HATCH: Let me just say that I may not agree that Thurgood Marshall was the greatest attorney of the last century, but I agree with you. He's one of the greatest. And I have nothing but respect for what he did for the civil rights community, and the courage that he had in doing that. And so I think -- I just commend you for having had the privilege for working with him, and others on the Supreme Court who were giants at that time when you were there. So I think you've had some tremendous experiences in your life. And -- and naturally, I respect that.
CLAIM: Current SEC charges against Goldman Sachs are somehow relevant to Kagan's nomination. On May 7, The Washington Post's Howard Kurtz wrote: "Elena Kagan was a paid adviser to Goldman Sachs? What could be worse -- being on the offshore risk committee for BP?"
FACT: Kagan was a member of a Goldman Sachs advisory panel that met once a year and wasn't involved in investment decisions. USA Today reported last month that Kagan served on a Goldman Sachs "panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show." USA Today added that the group "met once a year to discuss public policy issues and was not involved in any investment decisions, Justice Department spokesman Tracy Schmaler said."
FACT: USA Today also reported panel was part of Goldman group that "was not involved in the conduct being challenged by the SEC." From the USA Today article:
The Global Markets Institute, Goldman Sachs' public policy research unit, was not involved in the conduct being challenged by the SEC. The council Kagan served on is a group of outside experts called on to organize discussions and examine public policy issues. The institute provides analysis and advice to Goldman Sachs and its clients.
Whelan: Blaming Kagan for alleged Goldman wrongdoing is "ludicrous." Even Whelan, a conservative critic of Kagan, noted, "It would strike me as ludicrous for anyone to suggest that Kagan's advisory role on the Goldman Sachs GMI panel had any causal connection to whatever wrongdoings Goldman Sachs is alleged to have committed."
CLAIM: Conservative opposition to Kagan is based on good-faith, substantive objections. Media reports have suggested that conservative opposition to Kagan is rooted in good-faith objections to her judicial philosophy, often failing to note that conservatives have indicated they will oppose -- for political reasons -- anyone Obama nominates. For example, on the April 25 broadcast of Fox News Sunday, host Chris Wallace did not challenge Senate Minority Leader Mitch McConnell's assertion that Republicans are "going to treat" the eventual nominee "fairly and go through the process of looking at the record of the individual" (transcript from the Nexis database).
REALITY: Conservatives signaled they would attack whoever Obama nominated.
- Kristol "endorsed" Kagan but still said Republicans "should oppose" her nomination. Responding to Wallace's suggestion on Fox News Sunday that Republicans' decision about whether and how to oppose Obama's nominee "depends on who the president chooses," Bill Kristol responded: "But not that much, because I think, for example, Kagan would be a very respectable choice. But nonetheless, I think most Republicans would oppose her and, honestly, should oppose her, with respect and with deference to her, you know, impressive academic credentials, because she will be a reliable liberal vote, and I think Republicans should want to have a serious debate on the Constitution." Despite saying that Republicans "should oppose" Kagan in order to spark a "debate," Kristol went on to say that he "endorsed" Kagan. [Fox News Sunday, 4/11/10]
- Conservative activist Viguerie signals that conservatives will paint any nominee as "radical." The New York Times reported in an April 16 article:
Richard Viguerie, a conservative fund-raiser who is developing direct-mail and Internet campaigns about the coming nominee, said conservatives relished the prospect of a fight with Democrats over the Supreme Court before the November election.
"The more material he gives us to work with, the easier the battle will be," Mr. Viguerie said. "The more quickly we can identify that person as an ideological liberal, the easier it is for us to communicate to the American people how radical the president is and the nominee is."
- Torture-memo author John Yoo urges Republicans to filibuster whoever Obama nominates. University of California law professor John Yoo -- who is most famous for drafting the so-called "torture memos" -- used his May 2 Philadelphia Inquirer column to urge a filibuster of Kagan, Merrick Garland, or Diane Wood should Obama nominate one of them. Yoo wrote that a filibuster "would have little to do with these three distinguished lawyers, and everything to do with President Obama and his Senate allies."
- Coulter urges "huge court battle" to benefit GOP election hopes. On April 12, conservative Ann Coulter said: "A huge court battle is fantastic for Republicans. The reason the Democrats need the courts to legislate for them is their ideas are heinous to the American people. They can't win in democracy, so they do it through the courts. This is always good to have a fight over the courts."
- Hannity agreed that a court battle is good idea "whether you win or lose." In response to Coulter's statement that "it's always good to have a fight over the courts," Sean Hannity said: "I agree with you -- whether you win or lose."
- National Review: "The question for conservatives will be not whether but how to oppose Obama's nominee." An April 9 National Review editorial stated: "We know that President Obama will nominate a replacement who is also committed to imposing liberal policy outcomes over the objections of legislatures and without constitutional warrant. We know because Obama told us so, pledging during the campaign to nominate only justices who would support constitutionalized abortion." It later added: "Unless Obama provides evidence of having dropped his litmus tests, the question for conservatives will be not whether but how to oppose Obama's nominee."
- Kathleen Parker: In public, GOP will "be open-minded"; privately, "they'll try to figure out how to derail the nominee." During an April 13 online discussion, Washington Post columnist Kathleen Parker said about Republican strategy regarding the Supreme Court: "In public, they'll be open-minded; behind closed doors, they'll try to figure out how to derail the nominee. I hope the president will go moderate on this one. I think the nation is suffering battle fatigue and could use a respite. If he does, Republicans will have no basis for opposition."
- Gloria Borger: Some conservatives "looking for a fight" over Supreme Court nomination to "unite the base." During the April 9 edition of CNN Newsroom, senior political analyst Gloria Borger stated, "There are conservatives ... outside the Senate who are looking for a fight, because they believe that this would unite the base."
- Beck: Obama will find a "gay. handicapped black woman who's an immigrant" who's a "radical" justice like Sotomayor. On the April 9 edition of his radio show, Glenn Beck said of the then-upcoming Supreme Court nomination, "[M]ark my words. A radical is coming." He later said: "He's going to pick another radical." Beck added that if Obama's "smart," he'll nominate a "gay, handicapped black woman who's an immigrant."
CLAIM: Obama said he is looking for judges who exhibit "empathy" instead of following the rule of law. Conservatives have falsely claimed that Obama has said he will pick judges because of their "empathy" rather than their dedication to the rule of law and have suggested that Obama's references to empathy and personal experience run contrary to conservative judicial thought. For example, an April 9 Daily Caller post stated:
Republicans, who are limited by their minority status, will aim to gain from the process a platform to argue against judges that in their view go beyond rendering legal opinions and deliver rulings on the basis of politics or personal preference rather than the law.
The clearest example of disagreement between the legal philosophies of Obama, who was a constitutional law professor at the University of Chicago, and conservatives is the president's "empathy standard."
Obama articulated his desire that judges have "empathy" during the nomination process for Sonia Sotomayor, his first nominee to the court, who was confirmed last year.
REALITY: Obama -- like numerous conservatives -- has called for both empathy and devotion to the law. Obama has said that he seeks nominees who are dedicated to "the rule of law" and "our constitutional tradition" and who also exhibit empathy. In the past, numerous conservatives have touted nominees' "empathy," "compassion," and personal experience as qualifications, and conservative nominees have similarly highlighted the role that their life experiences have played in their judging.
- Obama in 2009: "I will seek" a nominee who has the "quality of empathy" and "is dedicated to the rule of law." In 2009, media fixated on a statement Obama made -- "I view that quality of empathy, of understanding and identifying with people's hopes and struggles as an essential ingredient for arriving at just decisions and outcomes" -- to push the notion that this statement "aggravates those who believe justices should follow the Constitution and legislative intent." But in the very next sentence, Obama stated: "I will seek somebody who is dedicated to the rule of law, who honors our constitutional traditions, who respects the integrity of the judicial process and the appropriate limits of the judicial role." Obama added, "I will seek somebody who shares my respect for constitutional values on which this nation was founded, and who brings a thoughtful understanding of how to apply them in our time."
- Obama in 2010: "I will seek" nominee who has "a fierce dedication to the rule of law, and a keen understanding of how the law affects the daily lives of the American people." In an April 9, 2010, statement on the retirement of Supreme Court Justice John Paul Stevens, Obama reiterated that he would seek someone who has both "a fierce dedication to the rule of law" and a "keen understanding of how the law affects the daily lives of the American people." Obama added that he will seek a nominee "who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
FACT: Alito highlighted the importance of his personal experience. During his confirmation hearing in 2006, Justice Samuel Alito highlighted his compassion for people involved in immigration and discrimination cases and discussed the importance of his personal experience, saying: "When I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account."
FACT: Thomas said during his confirmation hearings: "I can walk in the shoes of the people who are affected by what the Court does." Responding to Sen. Herb Kohl's (D-WI) question during his confirmation hearings in 1991 about why he wanted to serve on the Supreme Court, Justice Clarence Thomas stated in part:
I believe, Senator, that I can make a contribution, that I can bring something different to the Court, that I can walk in the shoes of the people who are affected by what the Court does. You know, on my current court I have occasion to look out the window that faces C Street, and there are converted buses that bring in the criminal defendants to our criminal justice system, bus load after bus load. And you look out and you say to yourself, and I say to myself almost every day, "But for the grace of God there go I."
So you feel that you have the same fate, or could have, as those individuals. So I can walk in their shoes and I could bring something different to the Court.
FACT: Conservatives have repeatedly expressed support for empathy in judicial nominees. Conservatives including President George H.W. Bush, Sen. Kit Bond (R-MO), and Yoo touted Thomas' "empathy," "compassion," and personal experience as qualifications:
- Bush cited Thomas' "great empathy." Bush cited Thomas' "great empathy" in his remarks announcing he was nominating Thomas to serve on the Supreme Court.
- Bond cited Thomas' "compassion and understanding." Bond similarly stated: "Though his skills as a lawyer and a judge are obvious, they are not, in my view, the only reason that this committee should vote to approve Judge Thomas's nomination. Just as important is his compassion and understanding of the impact that the Supreme Court has on the lives of average Americans."
- Yoo touted the unique perspective that he said Thomas brings to the bench. In his review of Thomas' 2007 memoir, My Grandfather's Son (HarperCollins), Yoo touted the unique perspective that he said Thomas brings to the bench. Yoo wrote that Thomas "is a black man with a much greater range of personal experience than most of the upper-class liberals who take potshots at him" and argued that Thomas' work on the court has been influenced by his understanding of the less fortunate acquired through personal experience.
FACT: Several former Republican senators have cited compassion as a qualification for judicial confirmation. Several former Republican senators, including Strom Thurmond (SC), Al D'Amato (NY), and Mike DeWine (OH), cited compassion as a qualification for judicial confirmation:
- Thurmond repeatedly highlighted importance of "compassion" in Supreme Court justices. During the confirmation hearings for Justice Ruth Bader Ginsburg, Thurmond stated that "compassion" was one of the "special qualifications I believe an individual should possess to serve on the Supreme Court," adding that "[w]hile a nominee must be firm in his or her decisions, they should show mercy when appropriate." Similarly, during the confirmation hearings for Justice Stephen Breyer, Thurmond said "compassion" was among "the special criteria which I believe an individual must possess to serve on the Supreme Court."
- D'Amato cited Sotomayor's "compassion" in supporting her nomination as an appellate court judge. During a 1997 Senate Judiciary Committee hearing on the confirmation of several judicial nominations, D'Amato stated: "I predicted to this committee, almost five years ago, that Judge Sotomayor would be an exemplary, outstanding justice. She has demonstrated that, repeatedly. She has shown compassion, wisdom, one of the great intellects on the court."
- DeWine wanted Roberts to "bring to the court your compassion." During Chief Justice John Roberts' confirmation hearing, DeWine stated: "We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been." DeWine continued: "We need you to bring to the court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people."
CLAIM: Kagan is "unqualified." In a May 10 article, the right-wing website Newsmax wrote: "Rush Limbaugh attacked President Obama's nomination of Elena Kagan for the Supreme Court, calling her a 'liberal elitist' who is unqualified for the court and has no clue about how ordinary Americans live."
REALITY: Kagan's legal experience is comparable to that of conservative justices, and experts agree that she is qualified for the Supreme Court. The American Bar Association gave Kagan its highest rating: well qualified. Justice Antonin Scalia reportedly said that he was "happy to see that this latest nominee" is "not a judge at all." Retired Justice Sandra Day O'Connor said it didn't matter that Kagan had not been a judge. In addition, other legal experts and prominent conservatives reject claims that Kagan isn't qualified. At least 38 justices -- including two of the past four chief justices -- had no judicial experience when they were first nominated for the Supreme Court. And Kagan's legal experience is comparable to that of several recent conservative justices at the time of their nominations: William Rehnquist, Clarence Thomas, and John Roberts.
FACT: ABA gave Kagan its highest rating: well qualified. The American Bar Association's standing committee on the federal judiciary unanimously (with one abstention) gave Kagan its highest rating: well qualified.
FACT: At least 38 justices -- including Rehnquist -- had no judicial experience before being nominated to the Supreme Court. While right-wing media have objected to the fact that Kagan has not previously served as a judge, University of Virginia government professor emeritus Henry J. Abraham has found that 38 justices -- more than a third of the 111 who have served on the Supreme Court -- had no prior judicial experience. Findlaw.com's Supreme Court Center similarly reports that 40 justices had no prior judicial experience. Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their original appointments as Supreme Court justices. Both were nominated by Republican presidents.
FACT: Seven of the nine Brown v. Board justices had no prior judicial experience. The nine justices who unanimously overruled Plessy v. Ferguson and declared that school segregation was unconstitutional were Earl Warren, Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Robert Jackson, Harold Burton, Sherman Minton, and Tom Clark. Of them, only Minton and Black had been judges before their Supreme Court nominations, and Black's judicial experience consisted of service as a Birmingham, Alabama, police court judge from 1910-1911.
FACT: Thomas and Roberts had little judicial experience before being nominated to Supreme Court. Clarence Thomas had served as a judge for 16 months and John Roberts had served for roughly two years at the time they were nominated to the Supreme Court by Republican presidents.
FACT: Kagan's legal experience is comparable to that of Rehnquist, Thomas, and Roberts at the time of their nominations. Kagan has 23 years of legal experience (after law school). Rehnquist had 20 years of legal experience at the time of his nomination. Thomas had 17 years of legal experience at the time of his nomination. Roberts had 26 years of legal experience at the time of his nomination. None had served more than two years as a judge.
(See here for the biographical information used to compile this chart.)
FACT: Scalia said he was "happy to see that this latest nominee" is "not a judge at all." From a report onABCNews.com:
Justice Antonin Scalia, the High Court's most outspoken conservative, said Wednesday that he likes that the former Harvard Law School dean and Solicitor General is not currently a judge.
"When I first came to the Supreme Court, three of my colleagues had never been a federal judge," said Scalia who joined the Court in 1986 after being nominated by President Reagan. "William Rehnquist came to the Bench from the Office of Legal Counsel. Byron White was Deputy Attorney General. And Lewis Powell who was a private lawyer in Richmond and had been president of the American Bar Association."
"Currently, there is nobody on the Court who has not served as a judge --indeed, as a federal judge -- all nine of us," he continued. ". . . I am happy to see that this latest nominee is not a federal judge - and not a judge at all."
FACT: O'Connor said "I don't think" judicial experience should matter and predicted that Kagan would be confirmed. From the ABC News transcript of George Stephanopoulos' interview with O'Connor:
STEPHANOPOULOS: Does it matter if someone hasn't been a judge before they go to the Supreme Court?
O'CONNOR: I don't think it does. We've had at least a third of the justices over time were never a judge. I think it's fine, just fine. If you ... are a scholarly in nature, if you are willing to do all the reading (LAUGH) and the homework, you'll be fine. If you can write well, think well, you'll be fine.
STEPHANOPOULOS: And from what you've seen of Elena Kagan, I know you know her a little bit, do you think she'll be confirmed?
O'CONNOR: I would think so. She seems to be very well qualified academically.
FACT: Conservative solicitors general have endorsed Kagan. Eight former solicitors general recently signed a letter endorsing Kagan, including several who served under conservative presidents. The group of signees includes Walter Dellinger, Drew Days, and Seth Waxman from the Clinton administration; Kenneth W. Starr, of George H.W. Bush's administration; and Theodore B. Olson of George W. Bush's administration. The former solicitors general join many other conservatives, progressives, legal experts, and journalists who agree that Kagan is qualified.
FACT: Conservatives, legal experts, journalists agree: Kagan is qualified.
- Reagan Solicitor General Charles Fried endorsed Kagan's nomination, describing her as "supremely intelligent," "an effective, powerful person," "and a very hardworking and serious person." The Huffington Post reported on April 9 that Charles Fried -- solicitor general during the Reagan administration -- "said that he'd support a Kagan pick." Fried reportedly said: "She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically. ... She has quite a strong personality and a winning personality. I think she's an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person." Fried reportedly added that Kagan was "not ideological" and advised Republicans to support her.
- Bush judicial nominee Estrada: Kagan is "a rigorous lawyer" who "should be confirmed" as the next Supreme Court justice. A May 10 New York Times article quoted Bush judicial nominee Miguel Estrada endorsing Kagan for Supreme Court justice:
"I would think that the president is looking for a bona fide left-of-center candidate with a progressive personal outlook who is a rigorous lawyer -- and he hit pay dirt," said Miguel Estrada, who was nominated to a federal appeals court by President George W. Bush but was never confirmed. "She's highly capable and should be confirmed."
- Fox's Bream: Kagan has a "fantastic resume." During Fox News' breaking Supreme Court coverage, reporter Shannon Bream predicted that "no one will argue anything [against Kagan] but that she is a brilliant individual, she's got a fantastic resume, and she is known to be a consensus builder."
- Fox's Napolitano: Kagan's "credentials are impeccable." On the May 10 edition of Fox News Radio's Brian & The Judge, Fox News senior judicial analyst Andrew Napolitano said that Kagan's "credentials are impeccable."
- Fox legal analyst Wiehl: Kagan "an absolute gem" with "excellent qualifications." In a May 10 FoxNews.com opinion piece, legal analyst Lis Wiehl wrote that she found Kagan "to be an absolute gem" and added: "Some will question her lack of judicial experience, but that perceived prerequis[i]te is relatively new ... don't forget Justice Warren (of the Warren court) was never a judge before ascending to the Court. At Harvard, she was known as an avid listener, who could get to the heart of the matter with a measure of both logical analysis and compassion. Sound like excellent qualifications to me."
- Ken Starr: Kagan is "very qualified." On the May 12 edition of MSNBC Live, Ken Starr said that Kagan is "very qualified."
FACT: Experts, conservatives, and journalists say judicial experience is not necessary to be a justice.
- NPR's Totenberg: The "big names in American jurisprudence [are] so often people who came to the court with no prior judicial experience." On the May 12 broadcast of NPR's Morning Edition, Nina Totenberg said that the "big names in American jurisprudence [are] so often people who came to the court with no prior judicial experience."
- Starr: Judicial experience is "certainly not necessary"; Kagan is "very qualified." On the May 12 edition of MSNBC Live, Starr said that judicial experience is "certainly not necessary."
- Napolitano explained that judicial experience is not necessary to be a justice. On the May 11 edition of Fox News' Fox & Friends, Napolitano explained that judicial experience is not necessary to be a justice.
- Scarborough, Zuckerman agree: Kagan being outside of judiciary is a "strength" and asset. On the May 10 edition of MSNBC's Morning Joe, co-host Joe Scarborough and guest Mort Zuckerman agreed that Kagan being outside of the judiciary is a "strength" and an asset.
FACT: Justice Scalia reportedly "likes" Kagan and her performance in Citizens United oral argument. Scalia reportedly said that he "like[d]" Kagan's first Supreme Court oral argument. From a December 22, 2009 NPR article:
[Kagan] knew she likely had a losing hand, and was grim about it in private. But when she faced the court, she cheerfully sparred with the justices, seeming to relish the experience and bluntly telling them that over the past century, the court had never before questioned the ban on corporate spending for candidate elections.
Justice Antonin Scalia replied that the court may never have questioned the ban, but it had never approved it, either. Congress, he suggested, is too self-interested to be trusted on the matter.
"I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents," he said, to which Kagan said he was simply "wrong."
In fact, Kagan said, corporate and union moneys go overwhelmingly to incumbents, so limiting that money, as Congress did in the campaign finance law, "may be the single most self-denying thing that Congress has ever done."
Scalia likes that kind of push back, and he likes Kagan: "That's what's supposed to happen," he said in an interview. "The reason you ask the question is to see if there's a decent answer to it." [emphasis added]
FACT: Kagan's oral arguments as SG have also drawn praise from legal commentator Stuart Taylor and legal expert Lawrence Lessig. On the May 11 edition of Imus in the Morning, Stuart Taylor, Jr., senior fellow at the Brookings Institution, rebutted critics of Kagan's solicitor general performance:
IMUS: How has she done when she argued herself?
TAYLOR: I heard people dissed her but I saw her, I thought she did fine. You know, she's smart, she's direct. She doesn't back off, Chief Justice Roberts, for whatever reason has been, you know, kind of hard on her. And now, he's bored in on her pretty hard challenging her positions, and she goes right back at him. She doesn't say, oh, I'm sorry, Mr. Chief justice, you must be right. She says, you know, I'm right, here's why I'm right. And I think Scalia, for example, and she seemed to have developed a nice relationship across the bench with a little human thrown in which is always welcome.
IMUS: People have disparaged her on what basis?
TAYLOR: I have heard some Supreme Court litigators say that she -- they don't think that she's not been particularly stellar. I've heard one, you know, challenge the strategy she took in the big citizens and united case, she didn't defend the rationale, the president at the court went onto overrule, she kind of gave other reasons. But, that is all kind of I think Monday morning quarterbacking and it's done by some smart people. But I don't think it means all that much and, certainly, it doesn't have a lot to say about what kind of a justice she'll be. [retrieved from the Nexis database]
In an April 26 article on The Huffington Post, legal expert Lawrence Lessig praised Kagan's "directness" with Supreme Court justices as "extremely rare for a Solicitor General":
Kagan can see a fight; if she can see a path through that fight, keeping her position in tact, she can execute on it. And even when a victory is obviously not in the cards, she will engage the other side boldly. It is extremely rare for a Solicitor General to tell a justice he is wrong (as Kagan did to Scalia in the argument in Citizens United). But for those of us who know her, that flash of directness and courage was perfectly in character for this woman who knows what she wants, and how to get it.
In a line: She marries the brilliance and strength of the very best Justices, a practical skill not of compromise but argument, and deep experience inside the executive branch. It is a broad base of experience, producing an understanding of what is possible, and skill to produce what is right.
CLAIM: Kagan "flunk[ed]" her own criteria that a nominee has "master[ed] the 'craft' aspects of being a judge." In a May 3 post, Ed Whelan wrote that "Elena Kagan would seem to flunk the 'threshold' test that she set forth for Supreme Court nominees. In particular, she seemed to put a much higher premium on the value -- indeed, the apparent necessity -- of previous judicial experience than those who now promote her candidacy." After including an excerpt from an article Kagan wrote, Whelan stated: "I don't doubt Kagan's 'skills' and 'aptitude,' but I see nothing in her record that indicates that she has 'master[ed] the 'craft' aspects of being a judge.' " Likewise, in a May 10 MSNBC appearance, Whelan claimed, "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."
REALITY: Kagan specifically stated that judicial service isn't necessary. Whelan has since apologized for misrepresenting Kagan's quote. Kagan actually wrote that a judicial nominee must demonstrate the "ability ... to master the 'craft' aspect of being a judge." Indeed, in the same paragraph from which Whelan quoted, Kagan made clear that judicial experience is not required. Kagan said she believes a nominee may instead "demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind." Kagan has served as an academic, practiced law before the Supreme Court as solicitor general, and served in government both as solicitor general and a policy adviser to Clinton.
FACT: Whelan later apologized for his false claim. In a May 12 post, Whelan wrote:
In a post last week, I stated that Elena Kagan, in a book review on the Supreme Court confirmation process, "seemed to put a much higher premium on the value -- indeed, the apparent necessity -- of previous judicial experience than those who now promote her candidacy." I'm embarrassed to say that I somehow missed a previous passage from the very paragraph that I quoted in which Kagan makes clear her view that a nominee need not have previous judicial experience but may instead "demonstrate the requisite intelligence and legal ability through academic scholarship, the practice of law, or governmental service of some other kind." My apologies for the error.
FACT: Solicitor general is known as the "tenth justice." As The New York Times reported, author Lincoln Caplan said that being the solicitor general is exceptionally good preparation to become a Supreme Court justice:
On the other hand, service as solicitor general, or S.G., is exceptionally good preparation for a job as a justice, said Lincoln Caplan, the author of "The Tenth Justice: The Solicitor General and the Rule of Law."
"The S.G.'s office reads the Supreme Court, both its personnel and its opinions, as closely as anyone in the universe," Mr. Caplan said.
The office's approach is, moreover, a practical one, aimed at capturing the votes of a majority of the nine justices. "The S.G. learns to count to five," he said.
FACT: Legal experts agreed that Kagan had the skills to be superb solicitor general. Legal luminaries, including all of the people who served as solicitors general from 1985-2009, six former assistant solicitors general, the NAACP Legal Defense and Education Fund president and director-counsel John Payton, former Bush administration White House counsel Bradford Berenson, Harvard Law professors Charles Fried and Laurence Tribe, and many others supported Kagan's nomination to be solicitor general, and said she would be outstanding in that role.
FACT: Kagan spent years as constitutional law professor. According to her biographical information on the Office of the Solicitor General website, Kagan taught constitutional law while on the faculty at Harvard University.
FACT: Kagan clerked for Thurgood Marshall. Kagan clerked for Justice Thurgood Marshall in 1988.
CLAIM: Kagan "lacks the judicial record that would enable" Republicans on Senate Judiciary Committee "to have a vigorous debate about the law" and would therefore be controversial. From an April 9 Daily Caller article:
Senate Judiciary Republicans indicated Friday that if President Obama nominates Solicitor General Elena Kagan to replace Supreme Court Justice John Paul Stevens, he will have a fight on his hands. Multiple sources told The Daily Caller that Kagan lacks the judicial record that would enable them to have a vigorous debate about the law, and that of the three people most likely to be nominated, she is the least desirable.
"A record like hers is harder to nail down than, say, a judge who has lots of opinions," one Republican staffer on the Senate Judiciary Committee said. "The debate is, or should be, really about the criteria."
FACT: Conservative groups immediately embraced Roberts despite the lack of public information on his views on controversial issues. The Washington Post reported on July 23, 2005: "Although little may be known about Roberts's specific views, conservative groups have embraced him as one of their own" (from Nexis). Additionally, a July 21, 2005, The New York Times article reported:
In recent years, Judge Roberts has left little in the way of a paper trail on the abortion issue, in legal writings or public speeches, which heightens the focus on his work as a deputy solicitor general. Abortion rights groups are trying to highlight those years, suggesting that President Bush has found an appealing ''stealth'' nominee with a hidden agenda.
''They want to pass it off that he was just a lawyer, a mouthpiece,'' said Eleanor Smeal, the president of Feminist Majority. ''But he was more than that.''
Nancy Keenan, president of Naral Pro-Choice America, added: ''There's a record of clear legal activism. They trusted him to write the briefs.''
A measure of that trust, some Democratic and liberal strategists said, was the striking approval of the Roberts nomination by social conservatives and abortion opponents, in contrast to their reaction to the potential nomination of Attorney General Alberto R. Gonzales.
Leading social conservatives said they were pleased with the selection. Dr. James Dobson, the founder of Focus on the Family, told reporters, ''I don't think there is any evidence that he is going to be another Souter,'' alluding to Justice David H. Souter, a Republican appointee whose rulings have disappointed conservatives.
An e-mail message to supporters of the Christian conservative group American Family Association offered reassurance that Judge Roberts's deference to Roe as established precedent during his appellate confirmation hearing should not be held against him.
CLAIM: Kagan is possibly "[t]he next Harriet Miers" in that she has never served as a judge and has a "thin legal paper trail." Various media figures have likened Kagan to Harriet Miers, President Bush's failed nominee. For example, Fox News' Monica Crowley said that Miers' nomination "did not survive" and "one of the main reasons was because she had never served as a judge." Crowley added: "There was no paper trail. We have no idea what her governing legal philosophy was. I think the same criticisms hold true for Elena Kagan."
FACT: Legal experts reject comparison. Numerous legal experts have rejected the comparison, saying it is "inapt" and that Kagan "is no Miers" and "couldn't be farther" from her.
- Attorney Floyd "dispose[s] of the Harriet Miers analogy once and for all." On the May 12 edition of Fox News' Fox & Friends, attorney Jamie Floyd said the analogy is "entirely unfair," saying: "Harriet Miers, with all due respect, was a functionary. This woman [Kagan] is a brilliant scholar. ... Then, in terms of whether or not she's had a real job, solicitor general is indeed a real job. It's one of the heaviest jobs you can carry." She then noted: "In the history of the court, there have been 40-some judges who have not been -- justices who have not been judges before, and some of the best justices have not been judges before."
- Meltzer says of comparison: "I think that's so easy and unfair." On the May 12 Fox & Friends, best-selling author Brad Meltzer stated that the comparison is "easy and unfair," going on to say that "solicitor general is not a political-favor job. That's a job you give to the smartest person around, and that's why you see the other solicitor generals like her so much."
- Manhattan Institute legal blog rejected the comparison as unreasonable. In a May 10 post, Manhattan Institute adjunct fellow Ted Frank wrote: "It's fair to say that Kagan's academic record isn't especially distinguished, but there's much more there there than there was with Miers. Kagan has held government positions where real legal thinking was required and a much better resume than Miers. (Update: Eugene Volokh makes a good case that Kagan's academic publishing record is above average. I'm persuaded.)"
- Cohen: "Kagan is no Miers." In a May 9 Politics Daily column, legal analyst Andrew Cohen wrote that "[d]espite [her] background, or perhaps because of it, Kagan will continue to be compared by some conservatives to Harriet Miers, the former White House counsel for President George W. Bush who became a failed Court nominee after just a few weeks." He added: "But Kagan is no Miers, who failed to get the job in part because she was notably unimpressive about constitutional law during her private round of meetings with senators."
- Aron: "She couldn't be farther from Harriet Miers." On the May 7 broadcast of Fox News' Special Report (accessed via Nexis), Nan Aron, president of the Alliance for Justice, stated, "She couldn't be farther from Harriet Miers in my view. She has stellar academic and professional qualifications."
FACT: Legal experts say Kagan is "better compared with" Chief Justice Roberts. Legal experts have said that Kagan more closely mirrors Chief Justice John Roberts rather than Miers.
- Cohen: Kagan is "better compared with" Roberts. In his May 9 column, Cohen wrote: "Kagan is perhaps better compared with the man with whom she would likely serve out the rest of her career; Chief Justice John G. Roberts Jr., who was at least as conservative when he was confirmed as Kagan's liberal supporters hope she turns out to be down the road."
- University of Pennsylvania law professor: Kagan is "like Justice John Roberts" in that "she's universally respected but hasn't written on divisive topics." On April 9, The Huffington Post reported that University of Pennsylvania law professor Theodore Ruger stated that "Kagan is unique in that, like Justice John Roberts, she's universally respected but hasn't written on divisive topics that could make confirmation difficult."
FACT: Kagan's legal experience is comparable to conservative justices. As legal scholars have noted, at least 38 justices had no judicial experience prior to being nominated for the Supreme Court; moreover, when Justices Clarence Thomas and Roberts were nominated, they had little judicial experience.
- At least 38 justices -- including Rehnquist -- had no judicial experience before being nominated to the Supreme Court. While right-wing media have objected to the fact that Kagan has not previously served as a judge, University of Virginia government professor emeritus Henry J. Abraham has found that 38 justices -- more than a third of the 111 who have served on the Supreme Court -- had no prior judicial experience. William Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their original appointments as justices. Both were nominated by Republican presidents.
- Thomas and Roberts had little judicial experience before being nominated to Supreme Court. Clarence Thomas had served as a judge for 16 months, and John Roberts had served for roughly two years at the time they were nominated to the Supreme Court by Republican presidents.
- Kagan's legal experience is comparable to that of Rehnquist, Thomas, and Roberts at the time of their nominations. Kagan has 23 years of legal experience (after law school). Rehnquist had 20 years of legal experience at the time of his nomination. Thomas had 17 years of legal experience at the time of his nomination. Roberts had 26 years of legal experience at the time of his nomination. None had served more than two years as a judge.
FACT: Many conservatives, including legal experts, have endorsed Kagan as qualified. Many conservative legal experts and journalists have endorsed Kagan or praised her qualifications. Those conservatives include former Reagan Solicitor General Charles Fried, Bush judicial nominee Miguel Estrada, George H.W. Bush Solicitor General Ken Starr, and former Bush Justice Department official and D.C. Circuit nominee Peter Keisler. In addition, Fox News legal analysts Judge Andrew Napolitano and Lis Wiehl, and Fox legal correspondent Shannon Bream have all praised her qualifications.
FACT: Conservatives previously smeared Sotomayor as "Obama's Harriet Miers." During Justice Sonia Sotomayor's nomination, conservatives also smeared her as "Obama's Harriet Miers."
- Levey: Sotomayor is like Harriet Miers because she is an "intellectual lightweight" who was "picked because she was a woman." As Think Progress noted, Curt Levey, executive director of the right-wing Committee for Justice, compared Sotomayor to Miers:
I would point you to the Harriet Miers nomination under the second President Bush. She was also many people felt and intellectual lightweight, picked because she was a woman, people felt. And even though Republicans controlled the senate, she ultimately had to withdraw. And that could happen here. This is someone who clearly was picked because she's a woman and Hispanic, not because she was the best qualified. I could certainly see red and purple state Democrats gawking at it and she may very well have to withdraw her nomination.
- Ponnuru called Sotomayor "Obama's Harriet Miers." As Think Progress also noted, National Review Online's Ramesh Ponnuru's "quick take" on Sotomayor's nomination was that she was "Obama's Harriet Miers."
CLAIM: Kagan's actions as solicitor general and an article she wrote as a professor show that she will give great deference to the president on national security issues. Referring to a law-review article written by Kagan and her record as solicitor general, Whelan wrote that a New York Times article presents concerns "Kagan 'may lean too far toward the middle.' Those concerns (and the corresponding hopes from some conservatives) may well be warranted on national-security issues and executive power more generally." Politico's Mike Allen has also suggested that Kagan may be attacked for being too deferential to presidential power on national security issues.
REALITY: Kagan's article dealt with domestic issues, not national security, and her actions as solicitor general do not show that she would take an expansive view of the president's national security powers. Kagan's article dealt with a president's power to direct administrative agencies and did not claim, as the Bush administration had, that the president had inherent power to act unilaterally on national security matters. Furthermore, Kagan's arguments in favor of the government's national security positions as solicitor general do not indicate that she would take an expansive view of the president's national security powers as a Supreme Court justice. As she has stated, her duty as solicitor general was to represent the federal government in court and defend federal laws whether or not she agreed with them. As a justice, her role would be to decide whether the federal government's actions are justified under the Constitution and federal laws.
FACT: In her article on "presidential administration," Kagan dealt with a president's power to control the executive branch bureaucracy. Kagan's article dealt with "the presidentialization of administration -- the emergence of enhanced methods of presidential control over the regulatory state." She summed up her views as follows:
I have argued here that this development, within broad but certain limits, both satisfies legal requirements and promotes the values of administrative accountability and effectiveness. Presidential administration as most recently practiced -- including, most controversially, the use of directive authority over executive branch agencies -- comports with law not because, as some have claimed, the Constitution commands straight-line control of the administrative state, but because, contrary to prevailing wisdom, Congress generally has declined to preclude the President from controlling administration in this manner.
FACT: In her article, Kagan did not even mention president's war powers or national security powers. At no point during her article did Kagan even discuss the president's national security or war powers.
FACT: In her article, Kagan specifically rejected the "unitary executive" concept that Congress cannot limit a president's power. In her article, Kagan specifically rejected the "unitary executive" that former Vice President Dick Cheney's aide David Addington, "torture memo" author John Yoo, and others in the Bush administration advanced in order to justify their national security agenda in the absence of -- or even in contravention of -- statutory direction from Congress. Kagan wrote: "I accept here the rudiments of the constitutional argument; more specifically, unlike the unitarians, I acknowledge that Congress generally may grant discretion to agency officials alone and that when Congress has done so, the President must respect the limits of this delegation." Kagan also wrote:
The unitarians would defend the practice simply by insisting, against the weight of precedent, that the Constitution provides the President with plenary authority over administration, so that Congress can no more interfere with the President's directive authority than with his removal power. I too defend the practice, but not on this basis. I accept Congress's broad power to insulate administrative activity from the President, but argue here that Congress has left more power in presidential hands than generally is recognized. More particularly, I argue that a statutory delegation to an executive agency official -- although not to an independent agency head -- usually should be read as allowing the President to assert directive authority, as Clinton did, over the exercise of the delegated discretion.
FACT: Kagan stated that as solicitor general, she would defend federal laws and actions as long as there was a reasonable basis for them. In response to a written question from Sen. Charles Grassley (R-IA), Kagan stated: "As Solicitor General, my function would be to advance the interests of the United States, and the interests of the United States call for the defense of federal statutes against constitutional challenge whenever there is a reasonable basis for doing so."
FACT: As a justice, Kagan's role would be to decide whether a government action was legal, not whether there was a reasonable basis for it. The Supreme Court, of course, often disagrees with the solicitor general's defense of the federal government's actions, as it did in numerous national security cases during the Bush administration, including in the 2004 cases of Hamdi v. Rumsfeld and Rasul v. Bush, the 2006 case of Hamdan v. Rumsfeld, and the 2008 case of Boumediene v. Bush.
Myth: Kagan's 23-year-old statements about the Establishment Clause suggest she's hostile to religion
CLAIM: Kagan's stance on the Establishment Clause could allow for discrimination against religious organizations. Days prior to Kagan's solicitor general confirmation hearing, Whelan cited as a cause for concern an October 22, 1987, memo "that Kagan wrote as a law clerk to Justice Thurgood Marshall" in which she supported a district court ruling "that the inclusion of religious organizations" in the Adolescent Family Life Act "violated the Establishment Clause." Whelan said of Kagan's 1987 memo: "If Kagan's current Establishment Clause views are anything like they were two decades ago, they ought to set off alarm bells for those who recognize that the Establishment Clause should not be misused to discriminate against religious organizations." An April 24 WorldNetDaily article cited Whelan's 2009 blog post as evidence of Kagan's supposed radical agenda.
REALITY: Kagan has disavowed the 23-year-old memo -- just like conservative nominees disavowed controversial statements from earlier in their careers. During her confirmation hearing for solicitor general -- two days after Whelan's blog post but more than a year before the WorldNetDaily article -- Sen. Arlen Specter asked Kagan about her 1987 memorandum. Kagan replied, in part, "Well, Senator, thank you for raising that memo. I -- I -- I first looked at that memo, thought about memo for the first time in 20 years I suppose just a couple of days ago when it was quoted on a blog post. And I looked at it and I -- I thought, 'That is the dumbest thing I've ever heard.' " Specter then told Kagan, "You don't have to go any further." Following her hearing, Sen. Jeff Sessions asked her to follow up on her response, since "time constraints and further questioning did not allow your explanation." Kagan wrote:
I indeed believe that my 22-year-old analysis, written for Justice Marshall, was deeply mistaken. It seems now utterly wrong to me to say that religious organizations generally should be precluded from receiving funds for providing the kinds of services contemplated by the Adolescent Family Life Act. I instead agree with the Bowen Court's statement that "[t]he facially neutral projects authorized by the AFLA-including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc. -- are not themselves 'specifically religious activities,' and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations." As that Court recognized, the use of a grant in a particular way by a particular religious organization might constitute a violation of the Establishment Clause -- for example, if the organization used the grant to fund what the Court called "specifically religious activity." But I think it incorrect (or, as I more colorfully said at the hearing, "the dumbest thing I ever heard") essentially to presume that a religious organization will use a grant of this kind in an impermissible manner.
FACT: Rehnquist walked back his memo supporting Plessy v. Ferguson. As The New York Times reported, "In 1971, Newsweek magazine revealed that in 1952, Mr. Rehnquist, then a law clerk to Justice Robert H. Jackson, prepared a memorandum called 'A Random Thought on the Segregation Cases.' It was written in the first person and bore Mr. Rehnquist's initials. It urged Justice Jackson to reject arguments made by lawyers in Brown v. Board of Education, the landmark school desegregation case, and to uphold Plessy v. Ferguson, the 1896 Supreme Court decision holding that 'separate but equal' facilities were constitutional. Mr. Rehnquist wrote, 'I realize that this is an unpopular and unhumanitarian position for which I have been excoriated by 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be re-affirmed.' " The Times further explained that "17 years later Mr. Rehnquist's memo created a storm. As opposition to Mr. Rehnquist mounted during the Senate debates, he submitted a letter to the chairman of the judiciary committee. 'I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use,' Mr. Rehnquist wrote." During his 1986 confirmation hearings, Rehnquist repeated his statement that "the bald statement that Plessy was right and should be reaffirmed was not an accurate reflection of my own views at the time."
FACT: Roberts disavowed statements about the "so-called right to privacy" in the Constitution. During his 2005 Supreme Court confirmation hearing, Specter asked about a 1981 memo Roberts wrote to then-Attorney General William French Smith, in which Roberts referenced "the so-called right to privacy" in the Constitution. Specter asked Roberts: "Do you believe today that the right to privacy does exist in the Constitution." Roberts replied, "Senator, I do. The right to privacy is protected under the Constitution in various ways." From the hearing:
SPECTER: Judge Roberts, the change in positions have been frequently noted. Early on, in one of your memoranda, you had made a comment on the "so-called right to privacy."
SPECTER: This was a 1981 memo to Attorney General Smith, December 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and you wrote, quote, that, "Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution."
Do you believe today that the right to privacy does exist in the Constitution?
ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.
It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.
It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.
It protects privacy in matters of conscience.
It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.
And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause.
The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.
And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.
SPECTER: So that the views that you expressed back in 1981, raising an issue about "amorphous" and "so-called," would not be the views you'd express today?
ROBERTS: Those views reflected the dean's speech. If you read his speech, he's quite skeptical of that right. I knew the attorney general was. And I was transmitting the dean's speech to the attorney general, but my views today are as I've just stated them.
So they weren't necessarily your views then, but they certainly aren't your views now?
ROBERTS: I think that's fair, yes.
CLAIM: Kagan "would face extraordinary recusal obligations" if she became a Supreme Court Justice. Whelan claimed that "if she were to make the transition from SG to the Supreme Court, Kagan would face extraordinary recusal obligations during her initial two or three years on the Court."
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 Justices Clarence Thomas or 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.
FACT: Supreme Court expert: As a Supreme Court justice, Marshall recused himself from dozens of cases; Kagan would have "far fewer recusals" Goldstein noted that Marshall recused himself from 57 cases due to his role as the solicitor general -- and more than 75 in total, due to other reasons. According to Goldstein, "Kagan would have far fewer recusals" than Marshall:
In no particular order, Kagan would have far fewer recusals principally because (i) she would be appointed earlier in the year, (ii) the Court's docket has fewer merits cases with the United States as a party, and (iii) a substantial amount of the time Marshall recused for reasons other than his service as Solicitor General.
The best estimate is that in her first Term, Kagan would recuse from 13 cases.
Beyond the numbers, Kagan's recusal would likely implicate only one arguably significant issue -- the government's litigation against tobacco companies.
Goldstein also noted that Kagan might have to recuse herself from Guantanamo detainee cases: "I don't know but think that, depending on the precise case, it is possible that Kagan would recuse from some detainee-related matters, if they came to the Court."
FACT: Supreme Court expert: Kagan's recusal level "would be roughly equal to (or lower than) Justices Thomas and Clark." According to Goldstein, if she became a Supreme Court justice, Kagan's level of nonparticipation "would be roughly equal to (or lower than) Justices [Clarence] Thomas and [Thomas] Clark. It would therefore not seem to be a significant basis for not appointing Kagan." A SCOTUSblog chart of recusals by first-term Supreme Court justices:
FACT: Supreme Court expert: Kagan's recusal obligations would not be significant in her second and third term. According to Goldstein, "commentators have assumed that Kagan's recusal obligations would continue to be very substantial for two to three years. That is not correct." Goldstein noted, "In his second Term, Marshall recused from 8 cases because he served as Solicitor General. The number for Kagan would likely be 5." He later added, "Absent an unusual circumstance, the greatest body of cases triggering recusal -- those in which Kagan actually participated in the Supreme Court as the Solicitor General -- would all be finalized during the upcoming Term. After that, her recusal would be triggered by cases in which she had the approval role, discussed above, which arrive at the Supreme Court far less frequently."
CLAIM: Kagan's "record shows that she can become emotionally involved on issues she deeply cares about." In his May 9 "Playbook," Politico's Mike Allen claimed Kagan's "critics will say" that "her record shows that she can become emotionally involved on issues she deeply cares about," a completely baseless accusation.
REALITY: Baseless "emotional" smear is a tired gender stereotype often used to attack women. Many prominent female figures have been attacked by invoking the stereotype that women are too emotional.
FACT: The Handbook of Social Psychology lists as one "gender stereotype" that "women are (too) emotional." The Handbook of Social Psychology -- edited by Daniel T. Gilbert, Susan T. Fiske, and Gardner Lindzey and described by its publisher as "the standard professional reference for the field of social psychology for many years" -- cites being too "emotional" as a gender stereotype applied to women: "In addition, the content of gender stereotypes is heavily prescriptive -- that is, telling how men and women should behave. Men should be competent; women should be nice. Other gender stereotype content is more descriptive: Men are (too) aggressive; women are (too) emotional" [Page 378].
FACT: Sotomayor's intellect and temperament were attacked using gender and racial stereotypes. As Media Matters noted, Supreme Court Justice Sonia Sotomayor's critics frequently employed gender and racial stereotypes in attacking her temperament and intellect. Conservative media figures and others would attack Sotomayor as being an "angry" justice who is a "bully" and "not that intelligent," which many argued reflected negative stereotypes about women and Latinos.
FACT: Pelosi's judgment was attacked as being "based on emotions and not good sense." Following Democratic victories in 2006 that paved the way for Nancy Pelosi to become the first female speaker of the House, many media figures trotted out tired, gender-based stereotypes in discussing Pelosi's judgment and leadership. For instance, as Media Matters noted, CNN political analyst Bay Buchanan asserted that Pelosi's "judgment is based on emotions and not good sense."
FACT: During presidential campaign, media diagnosed Clinton with "mood swings," depression and "multiple personality disorder." As Media Matters documented, during the 2008 presidential campaign, Hillary Clinton was often the subject of sexist attacks and commentary, with members of the media asserting that she displayed "mood swings," "could be depressed," "[r]esembl[ed] someone with multiple personality disorder," and "has turned into Sybil," an apparent reference to a book and movie about a woman who developed multiple personality disorder after being severely abused as a child.
CLAIM: Kagan does not have "the proper temperament to be a judge" and her record is "not of a fair-minded, impartial judge." Mike Allen also wrote that "critics will say" that "there is nothing in [Kagan's] record to suggest she has the proper temperament to be a judge. ... Her record is one of an advocate and an activist, not of a fair-minded, impartial judge."
REALITY: Kagan has been widely praised by conservatives and legal experts for her "fair-minded" temperament. Numerous conservatives and legal experts have praised Kagan's "fair-minded consideration" of all viewpoints and the respect with which she treats those with whom she disagrees.
FACT: Hayes: "Kagan treats conservative arguments with respect." On the May 7 edition of Special Report, Steve Hayes praised Kagan's fair-mindedness and intellect, saying, "She is, by all accounts from people who have dealt with her personally and intellectually, someone who can make convincing and compelling arguments and martial her arguments in a way that is persuasive to people who might not otherwise be predisposed to agree with her. And I think you're seeing that to a certain extent in the sort of half-embrace that she's getting from some conservatives, particularly conservative academics. You know, it goes beyond just the fact she hired three conservatives at Harvard, and certainly that is to her credit, but I think it's also the fact that she treats conservative arguments with respect, that she seems to genuinely be interested in understanding where conservative jurists are coming from." [Fox News' Special Report, 5/7/2010]
FACT: Former Bush lawyer Berenson lauded Kagan's "fair-minded consideration of competing views." From a letter sent by former Bush administration assistant White House counsel Bradford Berenson supporting Kagan's solicitor general nomination:
Her legal acumen is more than equal to the task she faces, as reflected in her scholarship. The spirit of toleration and fair-minded consideration of competing views she brought to the Deanship reflect the sort of temperament and judgment that will inspire confidence in the Justices of the Supreme Court as well as the private parties with whom she will need to interact as SG. The same institutional loyalty that has enabled her to put Harvard Law School's interests ahead of her own will undoubtedly cause her to do likewise in service of the United States.
FACT: Reagan Solicitor General Charles Fried praised Kagan's temperament and "ability to put aside disagreements with a candidate's political or intellectual disposition." In a letter supporting her nomination for solicitor general, Charles Fried -- solicitor general during the Reagan administration -- said Kagan "is a superb lawyer and awesomely intelligent person." He added: "Her judgment was unerring. But more strikingly, she showed an ability to put aside disagreements with a candidate's political or intellectual disposition and to see only the quality of the candidate's intellectual ability and potential contribution. The result has been the most vibrant and intellectually diverse faculty I have know [sic] since coming to the Harvard Law School in 1961." Fried offered the following anecdote that he argued "sums up her temperament and her effect on others":
Some years ago, it came Harvard Law School's turn to host the national convention of the student chapter of the Federalist Society. There was a dinner of some 1,000 guests from all over the country and it was her duty as dean to offer the welcome to our many guests. When she rose she was greeted by prolonged and thunderous applause. Enduring it for awhile, she finally raised her hands -- a big grin on her face -- and said "You are not my people...." There was loud and friendly laughter in the hall, almost drowning out her next words: "But I love the Federalist Society." This was met by applause more lively and prolonged than before. I would guess she loves the American Constitution Society too, but I do not go to those meetings."
FACT: Bush judicial nominee Estrada said Kagan's time at Harvard proves she is "someone who can create consensus," praised her for "work[ing] tirelessly to bring intellectual diversity" to the school. In a letter supporting her nominations for Solicitor General, Miguel Estrada -- who Bush nominated to be a D.C. Circuit judge -- stated that Kagan's "tenure as Dean [of Harvard Law School] demonstrates that she is a uniquely gifted administrator -- someone who can create consensus even in an institution that had become notorious for its fractiousness. For good measure, she has worked tirelessly to bring intellectual diversity to an institution that for too long had too little of it."
FACT: Bush official and judicial nominee Keisler praised Kagan's "way of dealing respectfully with everybody." Former Bush Justice Department official and D.C. Circuit nominee Peter Keisler wrote in support of Kagan's nomination to be solicitor general: "I am confident that it is precisely this combination of strong intellectual capabilities, thoughtful judgment, and her way of dealing respectfully with everybody that enabled her to become such a unifying and universally respected figure at Harvard."
FACT: Bush assistant AG Goldsmith spoke of Kagan's ability to judge problems "without ideological suppositions." In a letter supporting Kagan's nomination for solicitor general, Jack Goldsmith -- former assistant attorney general for the Office of Legal Counsel during the Bush administration -- stated: "Good judgment is a hard quality to describe, but Kagan has it. She understands problems in all their dimensions, she thinks about them clearly and without ideological suppositions, and she has a knack for understanding well the consequences and ramifications of various courses of action." He added: "Her success at Harvard also resulted from her shrewd ability to bridge disagreement. Kagan does this by listening to all sides of an argument, by engaging interlocutors honestly and empathetically, and by exercising her judgment openly and with good reasons."
FACT: Laurence Tribe: Kagan is "respectful of the views of others." Harvard Law School professor Laurence Tribe wrote: "No-one I have met at this or any other university has been better at orchestrating the abilities and energies of faculty, staff, and students without ruffling anyone's feathers or leaving hard feelings among those who cannot, by the nature of things, always get their way. That Elena Kagan was able to achieve that kind of harmony and cooperation while creating genuine intellectual excitement as she spearheaded the expansion of the Harvard Law School faculty in size, ideological range, and substantive depth is nothing short of remarkable." He added:
Simultaneously respectful of the views of others and capable of diplomatically identifying and correcting gaps in their understanding, Elena Kagan is the ideal advocate for an administration that seeks common ground among partisan opponents and that must grapple with the most difficult domestic and foreign challenges any incoming President has had to face in many generations.
FACT: Former assistant solicitors general: "Kagan is a person of great legal and personal skills, intellect, integrity, independence, and judgment." Six former assistant solicitors general -- four of whom also served as deputy solicitors general -- wrote: "In sum, Dean Kagan is a person of great legal and personal skills, intellect, integrity, independence and judgment. We therefore believe, based on extensive personal experience, that she has all the attributes that are essential to an outstanding Solicitor General."
CLAIM: "The First Amendment is something she doesn't like." Conservatives have distorted several statements Kagan has made about the First Amendment, falsely claiming that these statements indicate she is a threat to free speech and will allow the government to suppress conservative opinions. Rush Limbaugh, for example, has claimed, "The First Amendment is something she doesn't like," and Glenn Beck has falsely suggested that Kagan has endorsed government intervention "if there's too much dangerous Glenn Beck or Rush Limbaugh."
REALITY: Kagan's First Amendment views are mainstream and "generally pretty speech-protective." Conservatives' claims are based on a series of gross distortions of Kagan's writing. Kagan has specifically written that government cannot restrict speech because it "disagrees with or disapproves of the ideas espoused by the speaker" and also cannot "restrict speech because the ideas espoused threaten officials' own self-interest." Libertarian First Amendment expert Eugene Volokh has analyzed Kagan's scholarship and predicts that she will be "generally pretty speech-protective," and Fox News legal analyst Megyn Kelly said that "on free speech, Elena Kagan ... seems pretty middle of the road." The New York Times reported, "There are indications ... that [Kagan's] views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens."
CLAIM: Kagan wants government to "disappear" certain speech. In a May 12 post, Fox Nation falsely suggested that Kagan argued that speech promoting "racial or gender inequality" could be "disappeared" by the government. Fox Nation featured the headline: "Kagan: Some Speech Can Be 'Disappeared,' " linking to a WorldNetDaily article with the same headline.
FACT: Kagan actually wrote that "the uncoerced disappearance of such speech would be cause for great elation." In the article Fox Nation cited, Kagan actually stated that "the uncoerced disappearance of such speech would be cause for great elation"; she did not advocate for a government ban on all such speech. Indeed, Kagan specifically stated that government attempts to regulate such speech may violate the Constitution:
This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation. I do not take it as a given that all governmental efforts to regulate such speech thus accord with the Constitution.
FACT: Kagan said the First Amendment presumption against allowing the government to engage in "viewpoint discrimination" "has real worth." Kagan wrote in conclusion:
The presumption against viewpoint discrimination, relied upon in Hudnut and further strengthened in R.A.V., has come to serve as the very keystone of First Amendment jurisprudence. This presumption, in my view, has real worth, in protecting against improperly motivated governmental action and against distorting effects on public discourse. And even if I assign it too great a value, the principle still will have to be taken into account by those who favor any regulation either of hate speech or of pornography.
CLAIM: Kagan endorsed government action against an "overabundance" of conservative opinion. In a segment on his Fox News show warning that the Obama administration is somehow trying to restrict freedom of speech, Beck grossly distorted a 1996 University of Chicago Law Review article written by Kagan. Beck falsely claimed that Kagan endorsed government intervention to "unskew" public debate "if there's too much dangerous Glenn Beck or Rush Limbaugh":
Well, we've got to read a 1996 paper in which she wrote, quote, "If there is an 'overabundance' of an idea in the absence of direct governmental action -- which there might well be when compared with some ideal state of public debate -- then action disfavoring that idea might 'unskew,' rather than skew, public discourse."
OK, so that -- so if that's too much -- if there's too much dangerous Glenn Beck or Rush Limbaugh, or too much talk radio, action by the government can unskew things and balance out the opinion. You see? That's your new Supreme Court nominee.
FACT: Kagan did not endorse regulating political opinions on talk radio or elsewhere. In her article, Kagan was arguing that the Supreme Court has usually based its decisions about government regulation of speech on the government's motives rather than on the consequences of the regulation. In the specific portion of the article that Beck distorted, Kagan was not endorsing government attempts to regulate or "unskew" talk radio or any other medium to "balance out" Beck and Limbaugh. Rather, Kagan was discussing the 1992 case R.A.V. v. City of St. Paul, which invalidated an anti-hate speech law enacted in St. Paul, Minnesota. Kagan argued that the R.A.V. decision was based on St. Paul's "illegitimate, censorial motives" in passing the law -- not on the ways in which the law might have impermissibly "skewed" public debate. Kagan wrote:
Finally, the notion of a skewing effect, as an explanation of R.A.V. or any other case, rests on a set of problematic foundations. The argument assumes that "distortion" of the realm of ideas arises from -- and only from -- direct governmental restrictions on the content of speech. But distortion of public discourse might arise also (or instead) from the many rules of property and other law that, without focusing or intending to focus on any particular speech, determine who has access to expressive opportunities. If there is an "overabundance" of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might "unskew," rather than skew, public discourse. Suppose, for example, that racists control a disproportionate share of the available means of communication; then, a law like St. Paul's might provide a corrective.
A court well might -- as the R.A.V. Court did -- refuse the government the power to provide this corrective, but to do so, the court must discard a rationale focused purely on effects and adopt a rationale focused on motive.
The worry in a case like R.A.V. is not with skewing effects per se; the fear of skewing effects depends upon, and becomes meaningless without, the fear that impermissible considerations -- call them for now "censorial" or "ideological" considerations -- intruded on the decision to restrict expression.
The R.A.V. Court made this concern about illegitimate, censorial motives unusually evident in its opinion, all but proclaiming that sources, not consequences, forced the decision. [Kagan, "Private Speech, Public Purpose," 1996, Pages 420-421]
Kagan: Government "may not restrict" speech "because it disagrees with ... the ideas espoused by the speaker." In defining what constitutes an impermissible government motive for regulating speech, Kagan specifically wrote in the article Beck distorted that government cannot regulate speech because it "disagrees with or disapproves of the ideas espoused by the speaker" and also cannot "restrict speech because the ideas espoused threaten officials' own self-interest." From her article:
Consider the following snapshot of impermissible motives for speech restrictions. First, the government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker; it may not act on the basis of a view of what is a true (or false) belief or a right (or wrong) opinion. Or, to say this in a slightly different way, the government cannot count as a harm, which it has a legitimate interest in preventing, that ideas it considers faulty or abhorrent enter the public dialogue and challenge the official understanding of acceptability or correctness. Second, though relatedly, the government may not restrict speech because the ideas espoused threaten officials' own self-interest -- more particularly, their tenure in office.
FACT: Experts say Kagan's First Amendment views are mainstream and "generally pretty speech-protective."
- First Amendment scholar Volokh predicts that -- like Justice Ginsburg -- Kagan will likely be "generally pretty speech-protective." Libertarian law professor and First Amendment expert Eugene Volokh examined Kagan's scholarship on the First Amendment and concluded that "the likeliest bet" is that Kagan would be "generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view." Volokh wrote:
On then to my own evaluation of the First Amendment articles: I think they're excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan's Private Speech, Public Purpose article, see, e.g., PDF pp. 8-9). But I like them a lot.
My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is -- generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.
- Former Chicago Law School Dean Stone: Kagan approached First Amendment issues "without even a hint of predisposition." Geoffrey R. Stone, a law professor at the University of Chicago who was dean when Kagan was hired there, wrote in a May 10 article:
In her formative years as a scholar, Kagan wrote a series of illuminating articles about freedom of speech. They were illuminating not only because they shed interesting light on the First Amendment, but also because they reveal a lot about Kagan. In an area rife with ideology, her articles addressed complex and weighty legal questions without even a hint of predisposition.
In one early essay, she addressed the provocative issue of hate speech. After examining the question in a rigorous, lawyerlike manner, she came out in full support of a highly controversial 5-4 decision authored by none other than conservative Justice Antonin Scalia, which held that the government cannot constitutionally ban hate speech. Kagan reached this result even though it was clearly contrary to the liberal orthodoxy at the time.
- Even Fox News' Megyn Kelly says Kagan "seems pretty middle of the road" on "free speech matters." From the May 11 edition of The O'Reilly Factor (retrieved from Nexis):
KELLY: Well, I have to say on free speech, Elena Kagan, so far this is something she's written a lot about, seems pretty middle of the road. I don't expect her to be a far left liberal on free speech matters.
- NY Times reports there are indications Kagan's "views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia." The New York Times reported in a May 14 article:
In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.
CLAIM: As solicitor general, Kagan argued that the government can ban books. David Bossie falsely claimed that in a 2009 case, Kagan "came out in oral arguments in our case before the Supreme Court and stated that books could be banned."
FACT: The argument that campaign books paid for by corporate funds could be banned was actually made by a deputy solicitor general five days after Kagan was confirmed. Bossie's group was the plaintiff in Citizens United v. FEC, a Supreme Court case dealing with the constitutionality of the Federal Elections Commission's decision that Citizens United could not air a movie advocating against Hillary Clinton's presidential candidacy if that movie was paid for by corporate funds. On March 24, 2009 -- five days after the Senate confirmed Kagan -- the Supreme Court heard oral arguments in the case. Deputy Solicitor General Malcolm Stewart stated during the oral argument that, in addition to a movie, the federal government could "prohibit the publication of [a] book using the corporate treasury funds" if that book ended by saying "vote for X."
FACT: When the case was reargued, Kagan specifically argued that federal law had never banned books and likely could not do so. In June 2009, the Supreme Court decided to postpone its decision in Citizens United, asked the litigants to brief additional issues, and ordered the lawyers to reargue the case in September 2009. Kagan argued on behalf of the federal government. She stated that if the government tried to ban books under campaign finance laws, "there would be quite good as-applied challenge" to the law, meaning that the corporation attempting to publish the book would have a good constitutional case that the book couldn't be banned. Kagan later added: "[W]hat we're saying is that there has never been an enforcement action for books. Nobody has ever suggested -- nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that."
CLAIM: Kagan wanted to "ban pamphlets" by "modern Thomas Paines." The Washington Examiner falsely suggested that Elena Kagan wanted to "ban pamphlets" written by individuals. In a May 17 blog post, Examiner political editor Chris Stirewalt claimed "[a]ll [Kagan] really wanted to do was ban pamphlets" by "modern Thomas Paines."
REALITY: Kagan specifically discussed government prohibiting corporations and unions -- not individuals -- from spending funds on pamphlets to influence elections. In fact, in Citizens United, Kagan argued that government could prohibit corporations and unions -- not individuals -- from spending general funds on pamphlets to directly support or oppose political candidates. Indeed, Chief Justice John Roberts' concurring opinion said that the government's position would allow prohibition against corporations and unions participating in political speech through pamphlets.
FACT: Kagan argued for interpretation of Supreme Court precedent that would protect shareholders and the public. Kagan argued that "when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves, but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations." From Kagan's September 9, 2009, oral argument in Citizens United v. F.E.C.:
KAGAN: For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.
I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a (.) is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.
You know, an individual can be the wealthiest person in the world but few of us (.) maybe some (.) but few of us are only our economic interests.
We have beliefs, we have convictions; we have likes and dislikes.
Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.
CLAIM: Kagan's statements about the Second Amendment are outside the mainstream. The Drudge Report highlighted the following out-of-context Kagan quotes to falsely suggest that Kagan's statements indicate her views on gun rights are outside the mainstream:
FACT: Scalia agrees with Kagan that Second Amendment rights are "not unlimited." In her solicitor general confirmation hearing, Kagan said that following the 2008 Supreme Court case of District of Columbia v. Heller, "there is no question ... that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation." Kagan's statement that Second Amendment rights are "not unlimited" is not controversial. The majority opinion in Heller, which was written by Antonin Scalia and joined by the Supreme Court's most conservative members, stated:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
FACT: Supreme Court has upheld gun restrictions. In his majority opinion, Scalia listed gun restrictions that the courts have long upheld as constitutional, including "prohibitions on carrying concealed weapons," prohibitions on "the carrying of 'dangerous and unusual weapons' " such as an M-16 rifle, and "longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms."
FACT: Kagan's 1987 statement that she was "not sympathetic" to a gun rights argument was consistent with generally accepted constitutional scholarship at the time. The May 13 Bloomberg News article Drudge linked to reported:
Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was "not sympathetic" toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.
Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man's appeal.
The man's "sole contention is that the District of Columbia's firearms statutes violate his constitutional right to 'keep and bear arms,' " Kagan wrote. "I'm not sympathetic."
In fact, the view that the Second Amendment does not protect civilian gun rights was generally accepted at the time Kagan wrote those words.
FACT: In 2008, Stevens and three other justices agreed that the Second Amendment did not protect gun rights for non-military purposes. In a dissent to District of Columbia v. Heller, the case that struck down Washington, D.C.'s handgun ban, Justice John Paul Stevens, who Kagan has been nominated to replace, stated that "there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution." Stevens' dissent was joined by Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer. From Stevens' dissent:
Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.
The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.
FACT: In 1987, 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 Heller, a 2008 case, 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.
FACT: In the legal context the phrase "not sympathetic" does not connote personal political views. Contrary to suggestions by conservatives, 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.
CLAIM: In handwritten notes, Kagan compared the National Rifle Association to the Klan. A June 18 National Review Online blog post headlined "Did Kagan Compare the NRA with the KKK?" stated: "Kagan apparently tied the NRA to the KKK." The blog post referred to handwritten notes Kagan took as a member of the Clinton administration in which she wrote: "Bad guy orgs -- not NRA ... not KKK." Fox Nation also posted a headline asking "Kagan Compares NRA to KKK?" which linked to the NRO post.
REALITY: Kagan was not comparing the NRA to the Klan. In the handwritten notes, 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.
FACT: Kagan was taking notes about effects of legislation to protect volunteers for nonprofits from lawsuits. The documents in question related to legislation that would have protected volunteers for nonprofit organizations from lawsuits. The Washington Post's Greg Sargent wrote:
Here's the White House version of events. At the time, two separate things were going on simultaneously. First, Clinton officials were concerned that the proposal would make it tougher for victims of gun violence to pursue liability claims. Officials viewed the bill as a major giveaway to the gun industry and the NRA. As part of analyzing the impact in this area, Clinton lawyers looked at how it would benefit the NRA.
In a second, separate development, Democratic members of Congress were worried that the act could protect the KKK and other hate groups from liability. Senator Patrick Leahy branded it the "KKK protection act." That prompted Clinton lawyers to analyze how it would impact such groups -- the KKK included.
FACT: White House says Kagan was simply "writing down notes" about another lawyer's memo. CNN's Ed Henry reported on June 18 that the White House is "trying to make the point that this is not Elena Kagan herself calling them bad guys or lumping them together with a racist group like the KKK" and that in her notes, Kagan was simply repeating the language of the memo and the broader public "debate at the time." Henry explained:
[W]hat they're saying is, it's important to note that Elena Kagan did not write the original memo suggesting perhaps that the KKK and NRA would be lumped together and would be known as "bad guys." Instead, she was on phone, talking about this memo and writing down notes about it. Now, obviously we weren't there in 1996. We don't know all the details, but what the White House is insisting is that she did not lump the KKK and the NRA together originally. She was repeating the debate at the time. [emphasis added]
A June 18 CNN.com article reported that the White House explained that Kagan's notes simply "track[ed]" another lawyer's memo and that the White House said that "the organizations discussed reflect the public debate over the legislation at that time":
"Kagan's notes from a conversation with DOJ Attorney Fran Allegra track an earlier memo Allegra sent to her outlining which organizations would be shielded under volunteer and nonprofit liability legislation," said White House spokesman Ben LaBolt. "Allegra's memo notes that neither the KKK nor the NRA would be shielded from liability under the bill, after Democrats in Congress and others raised concerns that the provision swept too broadly. It's simply not credible to suggest that these jotted down notes represent anything but preliminary research on legal questions about what organizations would be covered under the legislation, and the organizations discussed reflect the public debate over the legislation at that time."
FACT: "Bad guy" language in Kagan's notes echoes language from memo she was reportedly discussing. The memo Kagan was reportedly discussing was written on March 27, 1996, by then-Justice Department lawyer Fran Allegra. It suggested that the NRA and the Klan would likely not receive protection under the act and said, "[W]e probably need to be careful about suggesting that 'bad' organizations will qualify for the provision in the bill as it would suggest that we are allowing 'bad' organization to qualify for tax-exempt status." In the notes she took the same day, reportedly while discussing Allegra's memo, Kagan similarly wrote, "Bad guy orgs -- not NRA ... not KKK" -- presumably summarizing Allegra's analysis that the NRA and KKK would not be protected by the legislation.
FACT: There's no evidence of any comparison between the NRA and the Klan. Nowhere in Kagan's notes did she "compare" or "tie" the NRA to the Klan. As Sargent explained:
There's nothing in the docs that draws an explicit comparison between the NRA and the KKK. The White House will argue that it's incidental that they happened to be listed next to each other -- they were only two of many groups that lawyers were examining in order to determine how they'd be impacted by the law.
It's perhaps unfortunate for the White House that she happened to list the two names side by side. But there's no evidence of any comparison, aside from the fact that they appeared next to each other on two pieces of paper amid a lengthy and wide-ranging analysis.
CLAIM: As Harvard Law School dean, Kagan banned ROTC from campus. On the May 12 edition of his Fox News show, Sean Hannity aired Sen. John McCain's false suggestion that Kagan had something to do with Harvard's policy on ROTC. McCain said that "the members of the ROTC at Harvard had to go to MIT to do their training" and suggested that Kagan is responsible for preventing "ROTC to be conducted on their campus."
FACT: Kagan made clear that she had nothing to do with Harvard's ROTC policy. In response to written questions during her solicitor general confirmation process, Kagan made clear that she had nothing to do with Harvard's ROTC policy, writing: "My statements and actions defending the Law School's general nondiscrimination policy did not sweep more broadly. The position I took does not entail a view on the exclusion of ROTC from college campuses, and I never expressed a position on the exclusion of ROTC from Harvard."
FACT: Harvard's policy on ROTC took effect four decades ago -- many years before Kagan was dean. The Harvard Crimson reported in June 2009 that the policy was a result of protests against the Vietnam War, which fostered "a rising tide of opposition" to "ROTC's presence at Harvard." From the article:
In the late 1960s, amid student protests against the Vietnam War, a rising tide of opposition emerged to ROTC's presence at Harvard.
Students and faculty members expressed concerns about ROTC's recruitment of undergraduates for the war. Faculty members also questioned the academic rigor of ROTC courses, which were taught by military officers in the Departments of Military Science, Naval Science and Aerospace Studies. In April 1969 a group of students occupied University Hall in an act of protest against the Corps, and the Faculty subsequently voted to expel the ROTC program.
The process of removing army, navy and air force units was completed in June 1971, in accordance with a timeline mandated by the Harvard Corporation -- the University's governing body.
FACT: Many elite universities exclude ROTC programs from their campus. As an October 2009 New York Times article noted, antiwar protests in the 1960s led to the ban of ROTC programs at many elite universities, including Yale, Brown, Columbia, Stanford, the University of Chicago, and Tufts.
CLAIM: Kagan oversaw "whitewash" of plagiarism by liberal professors. In a May 9 blog post, Michelle Malkin accused Kagan of a "cover-up" and linked to a May 5 Jewish World Review article headlined "Kagan Whitewash," which reported that in 2004 and 2005, Kagan "treated two liberal law professors with kid gloves when they were busted for plagiarism. Her chicanery was so blatant that even a leftist academic said she should be fired for her 'whitewash.' " Likewise, in his May 14 Washington Times column, Jeffrey Kuhner claimed that Kagan "was a corrupt administrator, who turned a blind eye to plagiarism by prominent Harvard faculty members."
REALITY: Kagan launched investigations into plagiarism allegations that uncovered no deliberate wrongdoing. Under Kagan's leadership, Harvard investigated the allegations into the work of professors Charles Ogletree and Lawrence Tribe and found no deliberate wrongdoing, and there is no evidence that the findings were motivated by politics.
FACT: Internal investigation into Ogletree allegation reportedly found incident to be "an honest mistake." In a September 2004 article, the Harvard Law Record reported that Kagan initiated an investigation after six paragraphs of Ogletree's book, All Deliberate Speed, were found to be identical to Yale Law professor Jack Balkin's book, What Brown v. Board of Education Should Have Said. The article stated that Ogletree was "cleared of intentional plagiarism." The article reported:
An internal law school investigation led by two former Harvard officials found the plagiarism incident to be an honest mistake. HLS Dean Elena Kagan appointed former Harvard University President Derek Box [sic] and former HLS Dean Robert Clark to investigate the matter. The investigation involved reviewing documents and interviewing research assistants in an attempt to single out how the error occurred. The investigation yielded a finding in agreement with Professor Ogletree's version of events.
FACT: Harvard spokesman said Kagan deemed Ogletree case "a serious scholarly transgression." In a September 2004 article, The Boston Globe reported that former Harvard president Derek Bok -- who Kagan had asked to investigate the plagiarism allegations against Ogletree -- "characterized the borrowing as an accident" and quoted him saying, "There was no deliberate wrongdoing at all." The Boston Globe also stated, "Based on their report, Kagan deemed the case 'a serious scholarly transgression,' according to [Harvard Law School spokesman Michael] Armini."
FACT: NY Times reported that "scholars say the increasing reliance of scholars upon research assistants in the quest to publish increases" errors. In a November 2004 article, The New York Times reported that "[s]ome scholars argued that Professor Ogletree's statement was a public humiliation more severe than any punishment that could be meted out to a student." It later added: "Along with the growing use of the Internet for research, some scholars say the increasing reliance of scholars upon research assistants in the quest to publish increases the risk of the sort of academic error made by Professor Ogletree."
FACT: Following panel inquiry, Kagan, Summers were "firmly convinced" Tribe's "error was the product of inadvertence rather than intentionality." In an April 2005 article, The Boston Globe reported that "[then-Harvard president Lawrence] Summers and Kagan appointed former president Derek Bok, former dean of the Faculty of Arts and Sciences Jeremy Knowles, and Sidney Verba, a government professor and the university librarian, to conduct an inquiry." The article also stated that based on the findings of the inquiry, "Summers and Kagan said, 'The unattributed material relates more to matters of phrasing than to fundamental ideas. ... We are also firmly convinced that the error was the product of inadvertence rather than intentionality. ... Nevertheless, we regard the error in question as a significant lapse in proper academic practice.' "
Myth: Kagan's citation of Marshall's statement that the original Constitution was "defective" is controversial
CLAIM: Kagan's citation of Marshall's claim that the Constitution as originally written was "defective" is controversial. On his May 10 program, Limbaugh attacked Kagan for citing former Justice Thurgood Marshall's statement that the Constitution as originally written was "defective" in an article praising Marshall.
REALITY: As prominent Republicans have done, Marshall was noting that Constitution was flawed because it permitted slavery. In the speech Kagan was quoting, Marshall said the Constitution was "defective" because it permitted slavery and did not guarantee women's suffrage. President George W. Bush and Secretaries of State Colin Powell and Condoleezza Rice have offered similar comments.
FACT: Marshall stated original Constitution was "defective" because it permitted slavery. In his May 6, 1987, speech to the San Francisco Patent and Trademark Law Association, Marshall -- the first African-American Supreme Court justice -- stated:
I cannot accept this invitation, for I do not believe that the meaning of the Constitution was forever "fixed" at the Philadelphia Convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the Framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today. When contemporary Americans cite "The Constitution," they invoke a concept that is vastly different from what the Framers barely began to construct two centuries ago.
For a sense of the evolving nature of the Constitution we need look no further than the first three words of the document's preamble: 'We the People." When the Founding Fathers used this phrase in 1787, they did not have in mind the majority of America's citizens. "We the People" included, in the words of the Framers, "the whole Number of free Persons." On a matter so basic as the right to vote, for example, Negro slaves were excluded, although they were counted for representational purposes at threefifths each. Women did not gain the right to vote for over a hundred and thirty years.
FACT: Kagan cited Marshall's comments in tribute after his death. In a 1993 article in Texas Law Review following Marshall's death, Kagan wrote:
During the year that marked the bicentennial of the Constitution, Justice Marshall gave a characteristically candid speech. He declared that the Constitution, as originally drafted and conceived, was "defective"; only over the course of 200 years had the nation "attain[ed] the system of constitutional government, and its respect for ... individual freedoms and human rights, we hold as fundamental today." The Constitution today, the Justice continued, contains a great deal to be proud of. "[B]ut the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of 'liberty,' 'justice,' and 'equality,' and who strived to better them." The credit, in other words, belongs to people like Justice Marshall. As the many thousands who waited on the Supreme Court steps well knew, our modem Constitution is his.
FACT: Bush said "[m]oral vision" of abolitionists led Americans to "correct our Constitution." In July 8, 2003, remarks made at Goree Island in Senegal, Bush said that the "moral vision" of abolitionists "caused Americans to examine our hearts, to correct our Constitution, and to teach our children the dignity and equality of every person of every race." He added: "The racial bigotry fed by slavery did not end with slavery or with segregation. And many of the issues that still trouble America have roots in the bitter experience of other times."
FACT: Rice said slavery was the Constitution's "great birth defect." At a July 19, 2008, event at the Council on Foreign Relations, Rice said: "In our first Constitution, my ancestors were three-fifths of a man. What does that say about American democracy at its outset? I've said it's a great birth defect. And we have had to overcome a birth defect. And, like any birth defect, it continues to have an impact on us. It's why we have such a hard time talking about race, and dealing with race."
FACT: Powell said "we could not live our Constitution truly unless we eliminated slavery." During a July 10, 2003, interview on CNN's Larry King Live, Powell said: "It took us a while to recognize that we could not live our Constitution truly unless we eliminated slavery, and hundreds of thousands of young men fought a civil war to end slavery and then it took us a long time to get rid of the vestiges of slavery and we're still working on it to this very day."
CLAIM: Kagan's memos prove she is outside of the mainstream on abortion and marriage. Media have used memos Kagan wrote as a law clerk to Justice Thurgood Marshall to paint her as outside of the mainstream on constitutional issues relating to abortion or marriage.
REALITY: Legal expert says the memos show Kagan "doing what she was supposed to do." According to legal expert Eugene Volokh, Kagan's memos to Marshall "show her doing what she was supposed to do" as a law clerk for Justice Marshall. And the memos do not show her taking extreme positions on abortion or marriage.
FACT: Contrary to reports, Kagan did not advise Marshall to find that prisoners have a right to state funding for abortions. In a CBS Evening News report, Jan Crawford falsely suggested that in one memo, Kagan advised Marshall to embrace a constitutional right to public funding for all prisoners' abortions. In fact, in her memo to Marshall, Kagan wrote that the argument that prisoners have an Eighth Amendment right to elective abortion is "ludicrous." She also noted that "non-prisoners have no rights to funding for abortions":
[T]he CA [Court of Appeals] held that the denial of elective abortions to inmates constitutes a breach of the duty to attend to inmates' medical needs and therefore contravenes the Eighth Amendment. In this part of the analysis, the CA strongly suggested that the county must assume the cost of providing inmates with elective abortions in order to comply with the Eighth Amendment. Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous. Since elective abortions are not medically necessary, I cannot see how denial of such abortions is a breach of the Eighth Amendment obligation to provide prisoners with needed medical care. And given that non-prisoners have no rights to funding for abortions, I do not see why prisoners should have such rights. Of course, I recommend that you deny this petition, but I think the Court will probably grant it. Judge Higginbotham simply went too far; this case is likely to become the vehicle that this Court uses to create some very bad law on abortion and/or prisoners' rights. [emphases added]
FACT: Reports distorted Kagan's advice to Marshall about marriage. Crawford and The Washington Times falsely suggested that Kagan advised Marshall to find that states must recognize same sex marriages performed in other states. In fact, the case with which Kagan was dealing did not involve same-sex marriage. Rather, Kagan was dealing with a case in which Robert F. Miner -- a prisoner sentenced to life in prison in New York State -- married a woman in Kansas, Laurie Marion, through a proxy. The marriage was void in New York, because prisoners sentenced to life in prison are considered "civilly dead" in that state and are not allowed to marry. Miner challenged the constitutionality of New York's decision not to recognize the Kansas marriage. New York's highest court rejected Miner's challenge, and Miner appealed to the Supreme Court. The Supreme Court ultimately decided not to hear the case. Neither the lower court decisions (retrieved via Lexis) nor Kagan's memo mentioned same-sex marriage.
FACT: In marriage case, Kagan was actually merely advising Marshall to call for a response from New York State. According to Kagan's memo, New York State initially waived its right to respond to Miner's request for the Supreme Court to hear the case. (According to a 2009 George Mason Law Review article written by David C. Thompson, a clerk for Justice Antonin Scalia at the time, and Melanie F. Wachtell, an attorney, the respondent waives the right to respond "[i]n the vast majority of cases.") Kagan -- having read only the petitioner's brief -- advised Marshall to issue "a CFR," a "call for response" from New York State. Kagan wrote:
Petr [petitioner] contends that respt [respondent] must, under the Full Faith and Credit Clause, recognize a proxy marriage that is valid in the State where contracted as valid in New York. The state courts did not address this Full Faith and Credit issue. I think petr's position is at least arguably correct and would recommend a CFR.
FACT: Although Kagan's Marshall memos have long been publicly available, no one took issue with her statements on abortion or marriage prior to her Supreme Court nomination. Kagan's Marshall memos have long been publicly available at the Library of Congress, and she was asked about them during her SG hearing. Pennsylvania Sen. Arlen Specter (then a Republican) asked Kagan about the memos during her solicitor general confirmation hearing in 2009, notably describing "a whole series of memos which you [Kagan] sent to Justice Marshall." In his written questions, Sen. Jeff Sessions (R-AL) also asked Kagan about a memo she wrote as a Marshall clerk. But none of the senators took issue with Kagan's statements in the memos on abortion or marriage.
FACT: Legal expert says Kagan's Marshall memos "show her doing what she was supposed to do." Legal expert Eugene Volokh wrote in a June 10 post titled, "Judicial Law Clerks' Memos to Their Bosses," that, in fact, Kagan's memos to Marshall "show her doing what she was supposed to do." From the post:
And of course Kagan was a lawyer working for Justice Marshall. Justice Marshall's job was to decide whether to grant certiorari based on whether the Court's decision was likely to clarify or improve the law. Her job was to give Justice Marshall advice based on whether the Court's decision was likely to clarify or improve the law from Justice Marshall's perspective.
Sens. Sessions and Kyl reportedly "highlighted a memo in which Kagan says she's 'shocked' by a government sting operation to catch a child pornographer that involved a Postal Service newsletter called 'Love Land' including ads offering sexually oriented material. Sessions said the language suggests 'a rather personal view, not the dispassionate legal view that you would expect from a law clerk.'"
I don't think that's right: A law clerk working for his Justice has no obligation to be "dispassionate" in a casual exchange, any more than Sen. Sessions' legal aides have such an obligation in casual exchanges with him about proposed legislation (or for that matter about a judicial nominee). And while it's pretty clear that the decision whether to grant certiorari shouldn't be made based on a clerk's "personal view," it's equally clear that Justice Marshall doesn't much care whether his clerk was shocked by something: He would decide based on his views, personal or otherwise, not based on hers
FACT: Kagan said purpose of memos was to "channel" Marshall. 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]
FACT: Even NRO's Whelan commented: "Kagan's views 23 years ago don't necessarily reflect her views today." Even Whelan, in a blog post that referenced a memo Kagan had written as a Marshall clerk, commented (emphasis in the original):
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.
CLAIM: Kagan's donations to Democratic candidates are unusual. In a May 10 tweet, Laura Ingraham stated: "2000-2008 Kagan donated $12,550 to Democrats, more than half of it to Barack Obama."
FACT: Roberts donated to Republican candidates, including George W. Bush. According to a July 20, 2005, Associated Press report, John Roberts "has contributed more than $3,700 to Republican candidates, including $1,000 to George W. Bush's successful bid for the presidency in 2000."
FACT: Roberts had a history of involvement in GOP campaign activity. According to his Senate Judiciary questionnaire for his Supreme Court nomination, Roberts was a member of the "Executive Committee, D.C. Lawyers for Bush-Quayle '88" and "Lawyers for Bush-Cheney" in 2000 and "assist[ed] those working on behalf of George W. Bush on various aspects of the recount litigation."
FACT: Dozens of Bush-appointed judges "made political contributions to key Republicans or to the president himself while under consideration for their judgeships." According to a 2006 study by the Center for Investigative Reporting:
At least two dozen federal judges appointed by President Bush since 2001 made political contributions to key Republicans or to the president himself while under consideration for their judgeships, government records show.
A four-month investigation of Bush-appointed judges by the Center for Investigative Reporting reveals that six appellate court judges and 18 district court judges contributed a total of more than $44,000 to politicians who were influential in their appointments. Some gave money directly to Bush after he officially nominated them.
CLAIM: Kagan "helped shield Saudi Arabia from lawsuits" by 9-11 families. WorldNetDaily reported on May 12 that Kagan "helped shield Saudi Arabia from lawsuits filed by families of 9/11 victims seeking to target countries and leaders who helped finance al-Qaida" by asking the Supreme Court not to hear a case against the Saudi royal family.
REALITY: Kagan's actions as solicitor general not evidence of her personal legal views; both Bush administrations offered similar arguments. All the courts involved agreed with the solicitor general's position that members of the Saudi royal family should be dismissed from the case; Kagan's actions as solicitor general are not evidence of her personal legal views; and the administrations of Presidents George H.W. Bush and George W. Bush similarly argued that civil cases alleging torture or terrorism by foreign governments interfered with the conduct of foreign policy.
FACT: Courts agreed with solicitor general's position in Saudi case. In 2005, in In re Terrorist Attacks on September 11, 2001 (retrieved via Westlaw), the U.S. District Court for the Southern District of New York dismissed members of the Saudi royal family from a lawsuit by 9-11 victims on the grounds that the court did not have jurisdiction over certain defendants and that the others were immune from suit under the federal Foreign Sovereign Immunities Act. In 2005, a 2nd Circuit Court of Appeals panel, in an opinion written by Chief Judge Dennis Jacobs -- an appointee of George H.W. Bush -- unanimously affirmed the decision. In May 2009, the solicitor general's office filed amicus curiae brief arguing that the Supreme Court should decline to hear the plaintiffs' appeal. The Supreme Court ultimately declined to hear the appeal.
FACT: Legal experts say that Kagan's personal legal views can't be inferred from her actions as solicitor general. Pamela Harris, the head of Georgetown University's Supreme Court Institute, has said, "I don't think you can read almost anything" into the personal views of a solicitor general based on her representation of the United States. Lincoln Caplan, an expert on solicitors general, recently told The Washington Post, "It's a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy."
FACT: Kagan stated during her SG confirmation hearings that she will represent the U.S. government rather than follow her personal views. In response to written questions submitted by senators as part of the confirmation process for Kagan's nomination as solicitor general, Kagan stated: "I am fully convinced that I could represent all of these interests with vigor, even when they conflict with my own opinions."
FACT: Republican administrations have also argued against lawsuits against foreign governments for terror, torture. In Republic of Iraq v. Beaty, Gregory Garre, the solicitor general at the time under President George W. Bush, argued on behalf of the administration that Iraq was immune from suit against American citizens who were tortured and held hostage in Kuwait and Iraq. He argued that allowing the suit against Iraq would "pose an 'unusual threat to the national security and foreign policy of the United States.' " In a decision written by Justice Antonin Scalia, the Supreme Court agreed, and held that Iraq was immune from suit. Likewise, in Saudi Arabia v. Nelson, the plaintiffs brought suit for injuries Scott Nelson suffered due to torture inflicted upon him while under arrest in Saudi Arabia. Kenneth Starr, as solicitor general, argued on behalf of the George H.W. Bush administration that the Foreign Sovereign Immunities Act did not allow jurisdiction over Nelson's suit because their actions were not "based upon" a commercial activity. He stated that (via Westlaw) "[t]he commercial activity involved here -- Saudi Arabia's recruitment of Scott Nelson to work at its overseas hospital -- does not provide a basis for the intentional injury and related spousal derivative claims that the Nelsons assert in their complaint." The Supreme Court agreed to dismiss the case.
CLAIM: By supposedly allowing Harvard to accept a gift from a Saudi prince, Kagan took part in a "concerted and ominous campaign under way to bring Shariah to America." Conservative media, including Frank Gaffney and The Washington Times have attacked Kagan for supposedly allowing Harvard University to accept a gift by Saudi Prince Alwaleed Bin Talal without protesting Saudi Arabia's regime. Some of these reports have claimed or suggested that Kagan is part of a plot to bring Shariah law to the United States.
REALITY: Harvard University, not Harvard Law School, accepted the gift, and the gift was given by a major News Corp. shareholder. Harvard University, not Harvard Law School -- where Kagan served as dean -- accepted the $20 million gift that created the Islamic Studies Program from Saudi Prince Alwaleed Bin Talal, a major News Corp. investor. Furthermore, neither Gaffney nor the Times editorial cited any evidence that discrimination had resulted from the creation of the Islamic Studies Program.
FACT: Gift was accepted by Harvard University, not Harvard Law School. Contrary to a claim by WorldNetDaily, Harvard University, not Harvard Law School - where Kagan served as dean - accepted the Saudi prince's gift. Prince Alwaleed Bin Talal's 2005 gift to Harvard University established the Islamic Studies Program at Harvard University. According to the university, the program "bring[s] together faculty, students, and researchers from across the University and coordinat[es] their activities through one Program housed within the Faculty of Arts and Sciences."
FACT: Conservative media have cited no evidence of discrimination as a result of the Islamic Studies Program. Conservative media attacks have cited no evidence of discrimination resulting from the creation of Harvard University's Islamic Studies Program. The program offers a wide variety of courses, including "Religion in Global Politics," "Early Iranian Civilizations," and "Christianity Along The Silk Road."
FACT: Harvard has reportedly rejected gift from donor it believed was tied to "anti-American and anti-Jewish" sentiment. From a December 13, 2005, Boston Globe article:
Gifts to Harvard from wealthy Arabs also have been controversial in the post-9/11 environment.
Donations during the 1990s to the schools of law and design from relatives of Osama bin Laden were criticized after 9/11. But the money had no known ties to bin Laden or terrorism, and Harvard kept the gifts. Last year, Harvard Divinity School returned a $ 2.5 million gift from the president of the United Arab Emirates because of the president's ties to an Arab League think tank with alleged anti-American and anti-Jewish leanings.
But problems with the Alwaleed donation do not seem probable. The prince, who is a nephew of Saudi King Abdullah, is widely known for his pro-American views and for his major investments in the United States.
FACT: Prince Alwaleed Bin Talal is a major investor in News Corp. Foxnews.com reported attacks on Kagan over the gift, but did not note that the Saudi prince who gave the gift is a major holder of News Corp. stock.
FACT: Gift did not establish a "Center for Islamic Studies and Shariah Law." In a Washington Times column attacking Kagan, Frank Gaffney quoted Sen. Jeff Sessions (R-AL) saying:" Around the same time that Dean Kagan was campaigning to exclude military recruiters - citing what she saw as the evils of 'don't ask, don't tell' - Harvard University accepted $20 million from a member of the Saudi royal family to establish a Center for Islamic Studies and Shariah Law." In fact, no program named the "Center for Islamic Studies and Shariah Law" exists at Harvard. The gift established the "Islamic Studies Program."
CLAIM: Kagan "defended" someone who allegedly leaked information to protesters in 1996. In a May 12 Washington Examiner article, Byron York reported on allegations made by two House Republicans in 1999 that as associate White House counsel, Kagan supposedly defended a White House staff member who allegedly leaked information to logging protesters in the Warner Creek area of Oregon.
REALITY: Decade-old allegations stem from a "politically motivated" report by two discredited GOP representatives. The task force was criticized by Democrats for "failing to meet even minimum standards of objectivity," and even Ed Whelan has said the allegations are "highly speculative." According to the Clinton White House, which said Kagan's actions in the matter were "above reproach," the task force never even asked to speak to Kagan. One of the Republican members of the task force is a discredited conspiracy theorist, while the other member and the committee chair who appointed them have been tarnished by numerous ethics scandals.
FACT: Whelan: Allegations were "highly speculative." In an April 7 National Review Online post, Whelan wrote that "the allegations of wrongdoing by Kagan ... strike me as highly speculative."
FACT: Republicans did not raise matter during Kagan's solicitor general confirmation. If Republicans actually believed the 1999 task force report was evidence that Kagan somehow acted improperly, they presumably would have raised the issue during her confirmation for solicitor general in 2009. But at no point during Kagan's February 10, 2009, Senate hearing, the written questions following the hearing, or the March 19, 2009, floor debate on her nomination did any senator -- Republican or Democratic -- address Warner Creek. York explained this by stating: "The issue also stayed largely out of sight in 2009, when Kagan was confirmed to be the nation's Solicitor General. Few Republicans even knew about the story, and besides, Kagan was up for a job in which she would serve at the pleasure of the president -- not a lifetime appointment like a seat on the Court of Appeals."
FACT: Task force composed solely of Republicans. The task force, appointed by then-House Resources Chairman Don Young (R-AK), was composed of then-Rep. Jim Gibbons (R-NV) and then-Rep. Chris Cannon (R-UT). Rep. George Miller (D-CA), then the ranking member of the House Resources Committee, reportedly refused to "legitimize" its actions by appointing a Democratic member to it.
FACT: Democrats criticized task force as "politically motivated." Miller reportedly "criticized the creation of the task force for prolonging a matter the committee already had spent more than a year investigating, excluding Democrats from the reasoning behind holding more hearings, and issuing subpoenas for information without holding committee votes." He also reportedly said that "the yearlong investigation is politically motivated, unfair and violates various procedural rules of the committee." A White House spokesman reportedly stated in 1999 that "[t]his report was not balanced in any way."
FACT: Task force reportedly didn't even ask to question Kagan. The Washington Times reported on October 14, 1999, that White House spokesman Barry Toiv said of the allegations against Kagan: "[H]er participation in this issue was so above reproach that this partisan Republican-only task force never even asked to question her during their inquiry. It's obvious that they are raising her name now only because she has been nominated to the federal bench. Professor Kagen [sic] is a superb scholar and will make an excellent federal judge."
FACT: Task force member Cannon is a discredited conspiracy theorist. According to The Sunday Times, on the advice of Cannon, his brother-in-law Robert Fox offered $10,000 to Oxford professor Peter Millican to use a computer software program to prove that Obama's autobiography, Dreams From My Father, was actually written by William Ayers. After Millican's initial results indicated that the charge was "very implausible," and Millican demanded that "the results had to be made public, even if no link to Ayers was proved, interest waned."
FACT: Task force chair Gibbons linked to numerous ethics scandals. In 2006, Gibbons was accused of sexually assaulting a woman in a Las Vegas parking lot. Criminal charges were never filed, but a civil suit is pending. Gibbons also reportedly helped secure a no-bid contract for a company that hired Gibbons' wife as a consultant.
FACT: Task force appointed by Don Young, who has been plagued by ethics scandals. Young has numerous ties to former lobbyist Jack Abramoff, who in 2006 pleaded guilty "to fraud, tax evasion and conspiracy to bribe public officials." He is reportedly under investigation in connection with the scandal surrounding VECO Corp., an Alaska oil services company. In 2008, Young stepped down from his leadership position on the House Resources Committee, reportedly at the insistence of his GOP colleagues due to ethics allegations against him.
CLAIM: As SG, Kagan "indulged her own ideological views" rather than upholding laws "she is dutybound to defend." In a May 10 National Review Online blog post, Whelan claimed that as solicitor general, Kagan had "indulged her own ideological views" on gay rights by "act[ing] to undermine the Don't Ask, Don't Tell law and the Defense of Marriage Act that she is dutybound to defend." The post linked to a prior item Whelan wrote in which he attacked the Department of Justice for abandoning "strong grounds for defending DOMA" in asserting that it "does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing." The May 10 post also linked to two prior items attacking Kagan for not appealing a case related to the "Don't Ask, Don't Tell" policy to the Supreme Court.
REALITY: Kagan was guided by DOJ precedent, not "her own ideological views." In both of the cases Whelan cites, the DOJ followed precedent in its decisions. It is not unprecedented for the DOJ to abandon arguments it has previously made; the Bush administration did so in the Second Amendment case of United States v. Emerson. There is also significant precedent backing the decision not to appeal the "Don't Ask, Don't Tell" case to the Supreme Court, since the lower court decision was not yet finalized. The Supreme Court has repeatedly declined to hear cases prior to a "final judgment," and the solicitor general's office has repeatedly argued that the Supreme Court should not hear cases before a final ruling from lower courts.
FACT: It's not unprecedented for DOJ to abandon arguments like it did in the DOMA case; the Bush administration did so in a Second Amendment case. In the 2001 case of United States v. Emerson -- a criminal federal gun crime prosecution -- the U.S. Court of Appeals rejected the argument advanced by the federal government that "stare decisis requires us to reverse the district court's embrace of the individual rights model" of the Second Amendment and held that the Second Amendment did cover individual rights. The 5th Circuit nevertheless held that the statute at issue did not violate the Second Amendment. Subsequently, the defendant appealed to the Supreme Court. In its brief asking the Court not to hear the case, the Bush Justice Department abandoned the argument that the Second Amendment did not cover individual rights.
Attorney General Ashcroft: Justice is not best achieved "by making any available argument that might win a case." In a letter to U.S. Attorneys directing them not to argue that the Second Amendment did not protect individual rights, Ashcroft wrote:
Justice is best achieved, not by making any available argument that might win a case, but by vigorously enforcing federal law in a manner that heeds the commands of the Constitution.
FACT: Some courts have rejected the argument that same-sex marriage is related to "government interests in procreation and child-rearing." Some state courts have explicitly rejected the argument that procreation and child-rearing bear any relationship to same-sex marriage bans. For instance, in Goodridge v. Department of Public Health, the Massachusetts Supreme Judicial Court stated that the Massachusetts same-sex marriage ban was not based on a procreation rationale because Massachusetts law "contains no requirement that the applicants for a marriage license attest to their ability or intention to conceive children by coitus. Fertility is not a condition of marriage, nor is it grounds for divorce."
FACT: 9th Circuit "Don't Ask, Don't Tell" decision was not final. The 9th Circuit ruling referred to by Whelan did not find "Don't Ask, Don't Tell" unconstitutional, but rather sent the case back to trial court in order to determine whether or not the plaintiff's constitutional rights had been violated.
FACT: DOJ followed longstanding precedent in deciding not to appeal case. According to Whelan, Attorney General Eric Holder said that the case was not appealed to the Supreme Court based in part "on the longstanding presumption against Supreme Court review of" cases in which lower courts have not yet issued a final judgment. Indeed, the Supreme Court has repeatedly declined to hear cases prior to "final judgment" from lower courts, and the solicitor general's office has argued in both Republican and Democratic administrations that the Supreme Court should decide not to hear cases in which decisions by the lower court were not final. Furthermore, even after Kagan's decision not to appeal the case, the Justice Department went on to vigorously defend the "Don't Ask, Don't Tell" policy as late as April 26, 2010, in a brief for the case Log Cabin Republicans v. United States.
CLAIM: WH online video featuring Kagan "in her own words" was a ploy "to avoid traditional interviews." Fox News' Fox & Friends criticized the White House for releasing an online video featuring Kagan "in her own words," claiming that the interview should have been conducted "with a journalist" and that the White House is using the Internet "to avoid traditional interviews."
FACT: "Standard practice" for White House to shield nominees from interviews before confirmation. The Washington Examiner's Julie Mason explained that "[i]t's standard practice around the White House (going back administrations) for any big nominee pending confirmation to stay away from interviews and unscripted public utterances until the voting is over. It keeps things tidy and minimizes variables. No biggie."
CBS News: "[I]t seems to be unprecedented for the nominee to be heard from at all before the confirmation hearings." A CBS News article on how the video "rile[d] reporters" stated that, "[s]till, it's worth noting that it seems to be unprecedented for the nominee to be heard from at all before the confirmation hearings, other than in the initial introduction and in brief photo ops with senators."
CLAIM: Kagan agreed "under oath" that suspected terrorists can be "scooped up off the street, held without a trial, due process, indefinitely." On his radio show, Beck suggested that the Obama administration will declare tea parties to be terror groups and stated that the administration is "pushing people to be scooped up off the street, held without a trial, due process, indefinitely." Beck further stated that "Kagan agreed with it under oath." He later stated: "If you're funding radicalized Islam, you're suspected -- that's the key word -- suspected of funding a terror organization, you can be held without due process indefinitely." Beck repeated the claim a week later.
FACT: Kagan made clear that "substantial due process" was necessary when detaining suspected terrorists. In fact, Kagan testified that, when detaining terrorist suspects indefinitely as enemy combatants during a time of war, a transparent legal procedure that included "substantial due process" has to be used. During her February 10, 2009, confirmation hearing as solicitor general before the Senate Judiciary Committee, Kagan agreed with the proposition that the U.S. government could legally hold suspected terrorists as enemy combatants indefinitely. She further agreed that the process for making a determination that a detainee is an enemy combatant "has to have substantial due process" and that an "independent judiciary" should be involved in making that decision.
CLAIM: Kagan dropped constitutional law from Harvard Law's curriculum and believes foreign law trumps American law and the U.S Constitution. The Washington Times claimed that under Kagan, "Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in 'International/Comparative Law.' " The Times also asserted that Kagan's "views don't comport" with the judicial principle that "foreign law should not even 'influence' a U.S. court decision." From a May 25 Washington Times editorial headlined, "Kagan's Foreign law trumps con-law":
Solicitor General Elena Kagan's nomination to the Supreme Court should founder unless she adequately explains why she quite literally put "International/ Comparative Law" ahead of the U.S. Constitution. Senators should question Ms. Kagan in great depth about her views on the applicability of foreign law in American courts.
The available evidence suggests that Ms. Kagan's views don't comport with that judicial principle [that "foreign law should not even 'influence' a U.S. court decision"]. The first clue came during her confirmation hearings for her current position of solicitor general. Here's what she said: "At least some members of the court find foreign law relevant in at least some contexts. When this is the case, I think the solicitor general's office should offer reasonable foreign law arguments to attract these justices' support for the positions that the office is taking."
Well, no. Even to win a case, it is wrong to argue in favor of something on which it would be wrong to decide. Rather than playing into misguided prejudices of current justices, the solicitor general should argue her position based on the Constitution and laws of our own land, regardless.
The increasingly influential law-and-policy organization Americans United for Life, meanwhile, has raised several other red flags with regard to Ms. Kagan's views on the relative weight of foreign law and the U.S. Constitution. It was under Ms. Kagan's leadership while dean of Harvard Law School, for instance, that Harvard dropped constitutional law as a required course for graduation, while adding a requirement for a course in "International/Comparative Law." The de-emphasis on the Constitution itself is part of a horribly misguided trend in liberal academia. To replace con-law with international law is symbolic of a mindset that runs far afield from the basics of American legal tradition.
In a New Hampshire speech on Oct. 6, 2008, then-Dean Kagan referred to "a transnational perspective" as being "foundational" as "part of the core of legal thought and activity in this new century." The academic jargon is instructive: "Transnationalism" is, in the words of radical State Department counsel Harold Koh, the idea that "domestic courts must play a key role in coordinating U.S. domestic constitutional rules with rules of foreign and international law." Another key supporter of transnationalism goes so far as to argue that "international law is supreme over domestic law."
REALITY: Kagan didn't "drop" con-law, and her statements on foreign law are mainstream. The unanimously approved curriculum changes Kagan instituted as dean did not result in "dropping" constitutional law, and the added courses were designed to improve students' options in their second and third years. Kagan also did not endorse international law as "supreme" over domestic law. Furthermore, Supreme Court justices -- including Antonin Scalia -- consider foreign practices in some situations.
FACT: Constitutional law wasn't required at Harvard in the first place. Prior to her deanship - in 2001 and 2002, for example - a constitutional law class was not required. Harvard Law JD degree requirements included "required [first-year] courses in Criminal Law, Contracts, Civil Procedure, Torts, and Property," "Legal Reasoning and Argument (LRA)," "a first-year elective course; a course in professional responsibility; fifty-two credits in second- and third-year elective courses; and a satisfactory piece of written work." As is the case now, courses in both the second and third year were all elective.
FACT: The curriculum changes were unanimously approved by Harvard Law faculty. The curriculum changes Kagan instituted as dean, which were unanimously approved by the Harvard Law School faculty, added "new first-year courses in international and comparative law, legislation and regulation, and complex problem solving" and condensed the "traditional first-year curriculum (contracts, torts, civil procedure, criminal law, and property)."
FACT: The courses added were designed to improve upper-level learning in constitutional law and other areas. According to Kagan, the addition of a 1L "Legislation and Regulation" requirement, was designed, in part, to "naturally lead into, and enable students to get more out of, advanced courses in the 2L and 3L years, on legislation, administrative law, a wide range of regulatory subjects (e.g., environmental law, securities law, telecommunications law), and constitutional law." Kagan has taught constitutional law at Harvard herself, and has earned praise from former Reagan Solicitor General Charles Fried, a constitutional law professor who taught at Harvard while Kagan was dean.
FACT: Supreme Court justices consider foreign practices in some situations. The Supreme Court has a history of citing decisions by foreign courts in their rulings. A majority of the Supreme Court recently reaffirmed the relevance of international law in Graham v. Florida, and, as a 2008 New York Times article reported:
The controversy over the citation of foreign law in American courts is freighted with misconceptions. One is that the practice is somehow new or unusual. The other is that to cite such a decision is to be bound by it.
Even conservative scholars acknowledge that American judges have long cited decisions by foreign courts in their rulings. "The Supreme Court has been doing it for basically all of our history, and with some degree of gusto," said Steven G. Calabresi, a law professor at Northwestern and a founder of the Federalist Society, a conservative legal group. Professor Calabresi said he generally opposed the citation of foreign law in constitutional cases.
Judicial citation or discussion of a foreign ruling does not, moreover, convert it into binding precedent.
FACT: Justice Scalia considers foreign practices in some situations. Legal expert Eugene Volokh, citing a majority opinion authored by conservative Supreme Court Justice Antonin Scalia, noted that "even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to ... consider foreign practices in some situations."
FACT: Kagan's statement that she'd cite foreign law as SG was consistent with the SG's role to vigorously defend federal laws. Sen. Orrin Hatch stated that at Kagan's solicitor general hearing, she "properly affirmed that the Solicitor General must make every reasonable argument defending the constitutionality of federal statutes." And Kagan specifically addressed citation to foreign law from the "perspective of an advocate," not the "perspective of a judge" during her solicitor general confirmation proceedings. From Sen. Arlen Specter's written questions for Kagan:
Constitutional and Statutory Interpretation
3. In your view, is it ever proper for judges to rely on contemporary foreign or international laws or decisions in determining the meaning of provisions of the Constitution?
a. If so, under what circumstances would you consider foreign law when interpreting the Constitution?
b. Would you consider foreign law when interpreting the Eighth Amendment? Other amendments?
c. Would you ever give weight to other nations' restrictions on gun rights when interpreting the Second Amendment?
Answer: This set of questions appears different when viewed from the perspective of an advocate than when viewed from the perspective of a judge. At least some members of the Court find foreign law relevant in at least some contexts. When this is the case, I think the Solicitor General's office should offer reasonable foreign law arguments to attract these Justices' support for the positions that the office is taking. Even the Justices most sympathetic to the use of foreign law would agree that the degree of its relevance depends on the constitutional provision at issue. A number of the Justices have considered foreign law in the Eighth Amendment context, where the Court's inquiry often focuses on "evolving standards of decency" and then on the level of consensus favoring or disfavoring certain practices. By contrast, none of the Justices relied on other nations' restrictions on gun rights in their opinions in District of Columbia v. Heller, 554 U.S. ___ (2008), and the grounded historical approach adopted in that case (and echoed even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right.
FACT: Kagan in no way suggested international law is "supreme over domestic law. Kagan's October 6, 2008 speech explored "the attributes -- and goals -- of a great law school in the 21st century." After discussing the changes she implemented to Harvard Law's first-year curriculum -- explaining that the newly-added "courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world" -- Kagan went on to put the curriculum reform "in real-world context."
Kagan said: "In recent weeks, I suspect that all of us watching the global credit meltdown and the desperate legislative efforts to resolve the crisis have a new appreciation for the powerful roles of legislation and regulation and a transnational perspective. These recent events underscore that these matters are foundational -- are part of the core of legal thought and activity in this new century. This reality must be reflected in the curriculum of the 21st-century law school, and I'm proud that HLS is leading the way in this direction." From Kagan's 2008 speech:
1L reforms: The foundation of legal education is the 1L curriculum. What students learn during their 1L year shapes their sense of what law is -- its scope, its limits, its possibilities. For this reason, we focused much of our attention on this critical first year.
What we did: Like most law schools, with minor variations, Harvard Law School's traditional first-year curriculum included civil procedure, criminal law and procedure, torts, property, and contracts - all worthy and important subjects but insufficient in themselves for all we need to accomplish. Ultimately, what we decided to do was to supplement this standard curriculum with three new required classes - one focusing on the statutory and regulatory aspects of law, one looking at law in a comparative or international framework, and one where students work in teams to resolve the sort of complex problems that lawyers so often confront. And to the traditionalists among you -- please don't despair! We didn't eliminate Civil Procedure or Contracts -- or any other basic 1L class. We made way for our new offerings by slightly paring the rest. Our students -- and our professors -- seem to have survived.
Curriculum update: The students who arrived last September -- members of the HLS Class of 2010 -- were the first to experience these new offerings, and early reports are everything we could have hoped for. Through intensive work with statutes and regulations from the start of law school, students are developing a rich understanding of the institutional frameworks and modes of the regulatory state -- and they and their professors have been happy to find fertile connections between these materials and the rest of the first-year program. Indeed, this course -- which students call LegReg for "legislation and regulation" -- was the most favorably evaluated of any course in the first-year program last year -- a remarkable accomplishment for a new class and its teachers. The courses in international and comparative law are opening up new questions and possibilities, showing choices made by different societies and challenges that arise from globalization, while also helping every student to locate American law in the larger map of laws, politics, and histories across the world -- a critically important endeavor.
1L reforms in real-world context: In recent weeks, I suspect that all of us watching the global credit meltdown and the desperate legislative efforts to resolve the crisis have a new appreciation for the powerful roles of legislation and regulation and a transnational perspective. These recent events underscore that these matters are foundational -- are part of the core of legal thought and activity in this new century. This reality must be reflected in the curriculum of the 21st-century law school, and I'm proud that HLS is leading the way in this direction.
CLAIM: Hitchens falsely claimed that Kagan said Vatican should be immune from child sex abuse lawsuit. Christopher Hitchens attacked Elena Kagan for a brief the Solicitor General's office filed arguing that the Vatican should be treated as a sovereign government and therefore a sex abuse case should be dismissed.
FACT: Kagan did not file a brief in the Vatican case. On May 17, Kagan notified the Supreme Court that, in light of her Supreme Court nomination, she was appointing her deputy, Neal Katyal to be acting Solicitor General and would not be participating in future Supreme Court cases. The brief Hitchens attacked -- which the Solicitor General's office filed after Kagan had recused herself -- does not bear Kagan's name.
FACT: None of the parties asked that the Supreme Court not to treat the Vatican as a sovereign state. In his article, Hitchens claimed that the argument that "the Holy See is in effect a sovereign state" is a controversial view. But the 9th Circuit decision that Hitchens lauded also stated that the Vatican is a sovereign state, and furthermore, neither side argued in their Supreme Court briefs that the Vatican should not be considered a sovereign state for purposes of the Foreign Sovereign Immunity Act.
FACT: Solicitor General's office has previously argued that foreign states should be entitled to immunity:
- George W. Bush administration argued that Iraq should be immune from lawsuits. In 1990, Iraq was deemed a state sponsor of terrorism, but following the coalition invasion in 2003, Congress enacted legislation that authorized the president to waive Iraq's liability under any provision creating a cause of action against a state sponsoring terrorism. In Republic of Iraq v. Beaty, Gregory Garre, the solicitor general at the time, argued on behalf of the administration that Iraq was immune from suit against American citizens who were tortured and held hostage in Kuwait and Iraq. He argued that allowing suit against Iraq would "pose an 'unusual threat to the national security and foreign policy of the United States.'" In a decision written by Justice Antonin Scalia, the Supreme Court agreed, and held that Iraq was immune from suit.
- George H.W. Bush administration argued that Saudi Arabia should be immune from suit. In Saudi Arabia v. Nelson, the plaintiffs brought suit for injuries Scott Nelson suffered due to torture inflicted upon him while under arrest in Saudi Arabia. Kenneth Starr, as solicitor general, argued on behalf of the George H.W. Bush administration that the Foreign Sovereign Immunities Act did not allow jurisdiction over Nelson's suit because their actions were not "based upon" a commercial activity. He stated that (via Westlaw), "[t]he commercial activity involved here -- Saudi Arabia's recruitment of Scott Nelson to work at its overseas hospital -- does not provide a basis for the intentional injury and related spousal derivative claims that the Nelsons assert in their complaint." The Supreme Court agreed to dismiss the case.
CLAIM: Kagan has shown "support for cloning human beings." On BigGovernment.com, Ken Blackwell asserted: "Most interesting, perhaps, is Kagan's support for cloning human beings. Clinton Library documents show that she opposed any effort by Congress to prevent human beings from being cloned specifically to create embryos that would be experimented upon, then killed."
REALITY: Kagan recommended that Clinton ban cloning for the purpose of creating a human baby while still allowing important stem-cell research to continue. Kagan co-wrote a memo recommending that then-President Bill Clinton "submit legislation banning human cloning." She also recommended that such legislation allow stem-cell research to continue. Her recommendation was in accordance with the recommendation of Clinton's National Bioethics Advisory Commission (NBAC) and the American Society for Reproductive Medicine. Furthermore, legislation that would have banned cloning for research purposes was rejected by a Republican-controlled Senate.
FACT: Kagan recommended that Clinton "submit legislation banning human cloning." In a May 29, 1997, memo written when Kagan was deputy assistant to the president for domestic policy, Kagan and White House science and technology adviser Jack Gibbons stated:
We recommend: (1) that you support domestic legislation banning human cloning, and that you announce specific legislation at the top of your June 10th press conference; and (2) that the U.S. support the gist of France's proposed cloning paragraph while insisting on critical modifications.
FACT: Kagan also recommended that such legislation allow stem-cell research to continue. In the same memo, Kagan recommended that the legislation not be written in a way that would ban stem-cell research, which uses cloned DNA. The memo said:
We recommend that you embrace NBAC's proposal to establish a narrowly crafted time-limited legislative moratorium. Legislation is the only way to establish a comprehensive, enforceable prohibition .on cloning entire human beings in all publicly and privately funded research and clinical activities. If carefully written, the ban will not preclude important research.
FACT: Clinton's National Bioethics Advisory Commission supported a ban on cloning that would not ban stem-cell research.According to a fact sheet in Kagan's files, the NBAC stated that "it is morally unacceptable for anyone to attempt to create a child with the technology used to create Dolly the sheep." The fact sheet further stated that "[t]he Commission also found that the new technology may have many agricultural and medical benefits" and that "cloning of DNA, cells, tissues, and non-human animals" for research purposes is "not ethically problematic."
FACT: American Society for Reproductive Medicine also supported ban on cloning humans but opposed bill that would shut down stem-cell research. The American Society for Reproductive Medicine and the Federation of American Societies for Experimental Biology opposed a cloning ban that did not contain a research exception.
FACT: Ban on cloning of DNA for stem-cell research purposes did not garner a majority in a Republican-controlled Senate. In 1998, the Republican-controlled Senate held a cloture vote on a bill that would have banned human cloning and made no exception for cloning of DNA for research purposes. The vote to move the bill forward failed, with 42 senators voting to move ahead with the bill and 54 senators, including 12 Republicans, voting against moving forward.
FACT: Kagan was making a policy recommendation, not a legal recommendation. Blackwell points to no evidence that Kagan was making a legal judgment about cloning. Her statements were focused on the policy and political implications of the various proposals regarding human cloning.
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