Wash. Times twists facts to bash Kagan, Sotomayor


A Washington Times editorial rehashed false attacks on Elena Kagan and falsely claimed that Sotomayor's dissent in a recent case relating to gun laws shows that she "lied" in her confirmation hearing about her views on the Second Amendment. In fact, the dissent is not inconsistent with Sotomayor's testimony.

CLAIM: Kagan "manipulated medical findings" to support "partial-birth abortion." A June 29 Washington Times editorial stated: "During the Clinton years, she manipulated medical findings to support the argument for partial-birth abortion." A previous Times editorial claimed that Kagan "deliberately withheld" American College of Obstetricians and Gynecologists' findings in order to preserve "partial-birth" abortion.

FACT: Kagan advocated for middle position that would have banned late-term abortions with a narrowly drawn health exception. In a May 1997 memo, Kagan and her boss Bruce Reed advised President Clinton to endorse a proposal that would ban abortions after the fetus has become viable with a narrowly-drawn health exception that would only apply if a physician "certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health." From the memo:

As you know, the Senate is taking up the Partial Birth Abortion Act (HR 1122) this afternoon. We expect Senator Daschle and Senator Feinstein to offer substitute amendments during the course of the debate. We recommend that you send a letter to Congress indicating that you would accept either of these substitute proposals.


Most critically, both amendments contain a health exception, though of different kinds. The Feinstein legislation would exempt an abortion if, "in the medical judgment of the attending physician, the abortion is necessary to ... avert serious adverse health consequences to the woman." This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician "certifies that continuation of the pregnancy would ... risk grievous injury to [the mother's] physical health." "Grievous injury" is then defined as "a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition."

FACT: Kagan informed Clinton of ACOG's final statement on "partial birth abortion" bans. A separate April 10, 1997, memo to Clinton that Kagan co-wrote stated that ACOG "could identify no circumstances" in which the procedure banned by the bill "would be the only option to save the life or preserve the health of the woman." In the same memo, Kagan also noted that ACOG opposed bills banning partial-birth abortion. From a memo from Kagan and fellow presidential advisers John Hilley and Tracey Thornton to Clinton:

Perhaps the most reliable opinion is from the American College of Obstetricians and Gynecologists (ACOG), which issued a statement in January addressing the procedure. (ACOG, like most other medical groups, calls the procedure an intact dilatation and extraction or intact D&X.) According to the statement, "A select panel convened by ACOG could identify no circumstances under which this procedure would be the only option to save the life or preserve the health of the woman." (Emphasis in original.) The statement then went on: "An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision." In sum, doctors have other options, but those other options may be more risky or otherwise more undesirable from a medical standpoint.

FACT: In 2000, the Supreme Court ruled that a more restrictive abortion law than the one Kagan advocated was unconstitutional. In Stenburg v. Carhart, the Supreme Court struck down Nebraska's "partial-birth abortion" statute, in part, because the law did not contain a health exception. Seven years later, in Gonzales v. Carhart, a case decided after Justice Samuel Alito replaced Justice Sandra Day O'Connor on the court, the Supreme Court upheld a federal ban on "partial-birth" abortion even though the statute did not contain a health exception. Four justices dissented in Gonzales v. Carhart, including Justice John Paul Stevens, whom Kagan has been nominated to replace.

FACT: Kagan's views are not necessarily reflected in her Clinton-era memos. In a piece for Politico, former Bush administration aide Tevi Troy cautioned not to read any "policy bias" into Kagan's White House papers:

The DPC job was Kagan's most senior White House position -- she also served as an associate White House counsel -- and those looking for any policy bias are likely to begin there.

But the DPC job is designed to make the White House policy process run fairly and efficiently. An administration makes thousands of policy decisions, almost all of which are difficult and time consuming. Time, however, is every president's most valuable resource -- and diminishes steadily from the moment of Inauguration.

Therefore, the policy councils need to tee up decisions to the appropriate levels, saving only the most difficult for the president. On issues requiring a presidential decision, the policy councils ensure that issues are ready for decision when they reach the president's desk and do not need to come back for protracted discussions.

As a result, the heads of the policy councils are supposed to synthesize the views of the various administration players, informing the president and the chief of staff of the source and extent of disagreements. In doing so, policy councils seek to avoid "process fouls" -- the unfair stifling of dissenting views -- as well as putting their thumbs too firmly on the scale.

When my own DPC memos are released eventually, they will reveal summaries of the various perspectives rather than full-throated defenses of my own personal beliefs.

CLAIM: Kagan "banned military recruiters" from Harvard Law School. A June 29 Washington Timeseditorial stated, "As Harvard Law School Dean, she banned military recruiters from the school to support the radical homosexual agenda."

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 U.S. Court of Appeals for 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."

CLAIM: Kagan said laws suppressing the First Amendment "are acceptable." A June 29 Washington Times editorial stated, "She argued before the Supreme Court as solicitor general that laws that suppress the First Amendment are acceptable because 'there has never been an enforcement action for books.'"

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.TheWashington Times is referencing 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: Sotomayor "lied" in confirmation about her views on Second Amendment. A June 29 Washington Times editorial stated that Sotomayor "lied" in her confirmation hearing "when she said the right to bear arms was guaranteed" because she subsequently "joined the Supreme Court minority in saying that there is 'nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as "fundamental," insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes.'" A June 29 Washington Times op-ed by David Kopel also stated that by joining a dissent that "argued forcefully and at length for overturning Heller," Sotomayor "contradict[ed] what she told the U.S. Senate and the American people last summer." Kopel suggested that Sotomayor "promis[ed]" to uphold Heller.

FACT: Sotomayor's testimony and her dissent are not inconsistent. The dissent Sotomayor joined on McDonald v. Chicago is not inconsistent with her 2009 testimony during her confirmation hearing. The dissent was critical of the reasoning in the Court's 2008 majority opinion in District of Columbia v. Heller -- the case that found that the Second Amendment protects an individual right to bear arms. But the dissent did not call for Heller to be overruled. Moreover, during her confirmation hearing, Sotomayor did not say that she would vote to uphold Heller as a Supreme Court Justice. Rather, Sotomayor said that she accepted and applied the decision as a lower court judge.

Posted In
Government, Nominations & Appointments, The Judiciary
Washington Times
Elena Kagan
We've changed our commenting system to Disqus.
Instructions for signing up and claiming your comment history are located here.
Updated rules for commenting are here.