In a June 25 editorial, The Washington Times compiled the numerous distortions and falsehoods that have run on its opinion pages into one editorial headlined “The Case Against Kagan.”
Times myth: Kagan is unqualified to be a justice
Times claim: “Kagan is remarkably lacking in courtroom experience.” From the editorial:
We know she is remarkably lacking in courtroom experience. Until Ms. Kagan became solicitor general, she not only had never been a judge, but she also had not even argued a single appeals case in her entire career. Her few arguments as solicitor general have been undistinguished. In one, the justices had to remind her that she was to answer their questions, not ask them questions of her own.
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: NPR reports Justice Scalia “likes” Kagan and her performance in Citizens United oral argument. Contrary to the Times assertion that Kagan's “arguments as solicitor general have been undistinguished,” 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 solicitor general have also drawn praise from legal commentator Stuart Taylor and legal expert Lawrence Lessig. On the May 11 edition of Imus in the Morning, Brookings Institution senior fellow Stuart Taylor Jr. rebutted dissenters 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.
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: Scalia reportedly said he was “happy to see that this latest nominee” is “not a judge at all.” From a report on ABCNews.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 Kagan would be confirmed. From the ABC News transcript of George Stephanopoulos' interview with former Justice Sandra Day 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: 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.
Times myth: Kagan kept military recruiters off campus and is anti-military
Times claim: “We know she deliberately ignored the law while at Harvard, and unfairly besmirched our military in time of war.” From the Times editorial:
We know she deliberately ignored the law while at Harvard, and unfairly besmirched our military in time of war. The facts are simple. A law known as the Solomon Amendment made it illegal to keep military recruiters off of college campuses. An appeals court ruled that the law should be overturned but immediately made its own ruling inapplicable until it could be reviewed by the Supreme Court. Then-Dean Kagan barred the recruiters from campus anyway, thus flouting the law. She called the military's “Don't Ask, Don't Tell” rule on homosexual practices “a moral injustice of the first order,” even though she herself had served in the Clinton White House that developed the “Don't Ask, Don't Tell” rule in the first place. Then, when she supported a challenge to the Solomon Amendment, the Supreme Court ruled against her position 8-0 -- an overwhelming rejection of her anti-military stance.
Somebody who openly flouts the law should not be one of the law's ultimate arbiters.
FACT: Kagan consistently followed the law, and Harvard students had access to military recruiters during her entire tenure as dean. Contrary to the Times' false claim that Kagan “barred the recruiters from campus,” throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard's Office of Career Services (OCS) 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 the 2009 hearing for her confirmation as solicitor general, Kagan pledged to defend the Solomon Amendment.
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: Kagan repeatedly praised military, cadets, and veterans. Contrary to the Times' assertion that Kagan has “besmirched our military,” in an October 17, 2007, speech at the U.S. 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 also has repeatedly praised the military, veterans, and cadets at other times.
FACT: Harvard Law veterans have said “Kagan has great respect for the military.” Three Iraq war veterans attending Harvard Law School wrote in a letter to the editor of the Times 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 veterans also stated that their support for military recruiting at the school “has not diminished our appreciation for Miss Kagan's embrace of veterans on campus.” The Harvard Law Record later reported on the veterans' letter, quoting Iraq veteran Hagan Scotten as saying, “Kagan has great respect for the military.”
FAVT: GOP Sen. Brown said Kagan is “very supportive of the military as a whole.” The Hill reported on May 13 that Sen. Scott Brown (R-MA) stated after meeting with Kagan and discussing the military recruiter issue: "[I]t was very clear to me after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole." Brown added, “I do not feel that her judicial philosophy will be hurting men and women who are serving.”
Times myth: Kagan “cut corners in order to preserve partial-birth abortions”
Times claim: Kagan “deliberately withheld” American College of Obstetricians and Gynecologists' findings in order to preserve “partial-birth” abortion. From the Times editorial:
We know she cut corners in order to preserve partial-birth abortions. Vast majorities of the American public oppose partial-birth abortion, which involves crushing the skull of a partially born baby and which the late Sen. Daniel Patrick Moynihan characterized as, for all intents and purposes, open “infanticide.” Yet when serving as a legal adviser to former President Bill Clinton, Ms. Kagan deliberately withheld from the president a finding by the American College of Obstetricians and Gynecologists that partial-birth abortion is virtually never “the least risky, let alone the 'necessary,' approach.” As accurately summarized by the National Right to Life Committee, the result was this: “Ms. Kagan played a key role in keeping the brutal partial-birth abortion method legal for an additional decade.”
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.
Times myth: Kagan will ban pamphlets written by individuals
Times claim: “We know she is willing to undercut First Amendment free speech for political purposes.” From the Times editorial:
We know she is willing to undercut First Amendment free speech for political purposes. Ms. Kagan argued before the Supreme Court that the law should be read to allow the government to prohibit the publication of political pamphlets. In a nation stirred to its own founding by political pamphlets such as “Common Sense” and “The Federalist Papers,” this is an extremely disturbing position. Ms. Kagan also has written of the benefits of 'redistribution of expression,' and has written that speech rights are to be “dol[ed] out” as a “favor” from government rather than being pre-existing rights that government cannot take away. She has argued that government would be justified in “disfavoring [an] idea [to] 'unskew,' rather than skew, public discourse.”
FACT: Kagan argued that government could restrict corporations and unions -- not individuals -- from using funds to influence federal law. The Times' claim that Kagan told the Supreme Court that the government had the power to ban pamphlets such as “Common Sense” is false. In Citizens United v. FEC, Kagan was arguing for the constitutionality of a ban on corporations and unions making electioneering expenditures. From 2 U.S.C. 441(b)(a), which was struck down as a result of Citizens United v. FEC:
It is unlawful for ... any corporation ... to make a contribution or expenditure in connection with any election to any political office ... or for any labor organization, to make a contribution or expenditure in connection with any election...
FACT: Roberts acknowledged that the government's position was that government could prohibit corporations and unions from participating in political speech through pamphlets. From Roberts' concurring opinion in Citizens United v. F.E.C.:
The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations -- as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.
FACT: Kagan did not endorse regulating political opinions to “unskew” speech. The Times distorted Kagan's comments that “government would be justified in 'disfavoring [an] idea [to] ” unskew," rather than skew, public discourse.' " In the article from which the Times quote, 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 the Times distorted, Kagan was not endorsing government attempts to “redistribut[e]” or “unskew” public discourse in order to amplify or diminish certain opinions. 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]
FACT: Kagan said 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 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: Kagan's First Amendment views are mainstream and First Amendment expert says that they are “generally pretty speech-protective.” Libertarian First Amendment expert Eugene Volokh has analyzed Kagan's scholarship and predicts that she will be “generally pretty speech-protective.” Further, 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.”
Times myth: Kagan “is hostile to gun rights”
Wash. Times claim: Kagan is anti-gun rights because she did not object to gun laws as a Clinton administration official. From the editorial:
We know Ms. Kagan is hostile to gun rights. Curt Levey of the conservative Committee for Justice has closely and fully analyzed the record. His conclusion is worth quoting in full: “When it comes to firearms, Elena Kagan's liberal bias stands out again and again throughout the documents. The Second Amendment consistently plays second fiddle to gun control in Kagan's analysis across issues such as gun-show regulations, trigger-lock mandates, the Brady Bill, municipal lawsuits against gun manufacturers, the congressional ban on assault weapons, an executive order banning semiautomatic weapons, use of executive agencies to push gun safety, use of state and local police to conduct background checks, and even the fundamental question of whether individuals have any Second Amendment rights.”
FACT: At the time Kagan was writing these memos, no federal appellate court had found that the Second Amendment protected the right to carry guns for non-military purposes. In District of Columbia v. Heller, the 2008 case that ruled that the Second Amendment protects an individual's right to keep and bear arms, 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: Supreme Court has acknowledged that many gun laws do not violate the Second Amendment. In his majority opinion in Heller, Justice Antonin Scalia stated: “Like most rights, the right secured by the Second Amendment is not unlimited.” Scalia stated that “dangerous and unusual weapons” may be prohibited and that laws may impose “conditions and qualifications on the commercial sale of arms,” among other gun laws that did not violate the Second Amendment. Scalia added in a footnote: “We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.” From Scalia's opinion:
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. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , 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.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
FACT: Kagan's views are not necessarily reflected in her Clinton-era memos. As noted above, former Bush administration aide Tevi Troy cautioned not to read any “policy bias” into Kagan's White House papers.
FACT: Wash. Times previously distorted Kagan's record on gun rights. In a June 10 editorial headlined “Kagan's threat to gun owners,” the Times pushed the myth that memos Kagan had written as a clerk to Justice Thurgood Marshall showed that she was hostile to gun rights.
Times myth: Kagan replaced constitutional law requirement with international law requirement at Harvard
We know she believes foreign law is highly relevant to U.S. law. 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.” To be clear, she said, “I think the solicitor general's office should offer reasonable foreign law arguments.” While she was dean, Harvard Law added “International- Comparative Law” as a course requirement for graduation, but the school dropped the requirement for constitutional law.
FACT: Kagan didn't “drop” con-law -- it wasn't required in the first place. 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).” Kagan didn't “drop” or “replace” con-law -- it wasn't required in the first place.
FACT: There's nothing unusual about Kagan saying she would make foreign law arguments as solicitor general. It is the role of the solicitor general to defend federal laws and actions, as long as there is a reasonable basis for them. Indeed, Sen. Orrin Hatch (R-UT) stated that during her solicitor general hearing Kagan “properly affirmed that the Solicitor General must make every reasonable argument defending the constitutionality of federal statutes” -- and the Supreme Court has a history of citing decisions by foreign courts in its rulings. A majority of the Supreme Court recently reaffirmed the relevance of international law in Graham v. Florida, 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: Even Scalia has relied on foreign law. Moreover, 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 reference to “transnational” perspectives is not controversial. In the 2008 speech, which the Times has previously criticized as well, Kagan described the curriculum reforms she had instituted at Harvard and attempted to put them in “real world context.” From Kagan's 2008 speech:
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.
Times myth: Kagan's praise of Israeli Judge Aharon Barak is controversial
Times attacks Kagan for calling Barak her “judicial hero.” From the editorial:
We know she believes judges should automatically favor certain classes of people and impose their own values to reach desired outcomes. ... She has acclaimed as her greatest “judicial hero” the radical Israeli judge Aharon Barak, who openly bragged that his “judicial philosophy is enshrined in the recognition that his role is to create rights.” Not enforce rights recognized by the people, but create those rights himself.
FACT: Kagan is not alone in praising Barak; Scalia reportedly sang Barak's praises. 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 Award 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.”
FACT: Former Reagan solicitor general praised Barak at same event where Kagan praised Barak. Indeed, at the same event where Kagan praised Barak, Former Reagan administration Solicitor General Charles 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.
Times myth: Kagan's statements on marriage are out of the mainstream
Times distorts Kagan memo to Justice Marshall on marriage. From the Times editorial:
She believes states should be forced to recognize purported marriages performed in other states (presumably such as homosexual “marriage” ) even if their own policies forbid it.
FACT: Kagan's memo to Marshall in marriage case was not controversial. In the case at issue, 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 New York and are not allowed to marry. Miner challenged the constitutionality of New York's decision not to recognize the Kansas marriage, and New York's highest court rejected Miner's challenge. Miner then appealed to the Supreme Court, and 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: Contrary to the Times' suggestion, Kagan did not say that a state must recognize all out-of-state marriages. Kagan's memo did not advise Justice Marshall to find in favor of Miner; rather, she advised Justice Marshall to call for a response from New York state to Miner's filing. 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. Kagan -- having read only Miner's brief -- advised Marshall to issue “a CFR,” a "call for response" from New York State. Kagan wrote:
Petr [the petitioner, Miner] 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.