Writing on RedState.com, the Heritage Foundation's Brian Darling rehashed a variety of debunked myths to claim that Elena Kagan is "anti-Second Amendment" (criticizing Media Matters by name in the process). We've debunked most of these claims multiple times before, and we stand by those responses.
But there's one claim Darling made that we haven't dealt with for more than a month because it was proven to be so utterly false that almost no one has bothered to even raise it again until now: The claim that Kagan's decision not to file a brief in the Supreme Court case regarding Chicago's gun rights shows an anti-Second Amendment bias.
Elena Kagan has shown hostility to Second Amendment rights in her duties as President Obama's Solicitor General. General Kagan failed to find a federal interest in the McDonald v. Chicago case decided this week and failed to file a brief in the case. The McDonald case held that the Second Amendment applies to the states.
Hans Von Spakovsky and Todd Gaziano wrote for National Review Online the following before the McDonald case was decided:
The Supreme Court is in the process of deciding a landmark Second Amendment issue in McDonald v. Chicago that also raises an even more profound question related to the meaning of the Fourteenth Amendment. As all appellate lawyers know, the Court took the case and heard oral argument to decide whether state and local governments are bound by the Second Amendment, and if so, whether Chicago's restrictive gun ban is constitutional. Even if the first question is of no interest to Kagan -- despite the fact that the Fourteenth Amendment theory advanced by the main party and being considered by the Court has every constitutional law professor in America engaged -- the second question implicates many federal firearms laws. Yet in her capacity as solicitor general, Elena Kagan decided not to file a brief or participate in what may be the most important Second Amendment case in our nation's history -- and potentially the most important constitutional law case of any type this decade.
First, how in the world does not filing a brief in the case establish Kagan's supposed "hostility to Second Amendment rights"? After all, there were two sides to the case. If she had filed a brief, she could have sided with either the parties that were defending the Chicago handgun laws or the parties that were challenging those laws. Since she didn't file a brief in the case, isn't the logical conclusion that you can't identify Kagan's position on the issue? (And even if Kagan had filed a brief, that would not necessarily be evidence of her personal legal view.)
Equally importantly, as we've noted before, Kagan was actually following well-established Solicitor General precedent by not weighing in on McDonald v. City of Chicago, a case in which the federal government was not a party. Ken Blackwell and Ken Klukowski previously claimed that it is normal practice for the Solicitor General's office to file briefs in incorporation doctrine cases and cited the fact that, in 1969, the Solicitor General filed a brief in Benton v. Maryland -- a case dealing, in part, with whether the Double Jeopardy Clause of the Fifth Amendment applies to the states.
In fact, as the Constitutional Accountability Center's Doug Kendall has noted, the Solicitor General's brief in Benton v. Maryland did not even mention the incorporation issue. Kendall also noted that, contrary to Blackwell and Klukowski's assertion, the Solicitor General actually "has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case."
In written testimony on the nomination of Elena Kagan, Colorado political commentator and law professor David Kopel advances a mélange of distortions of Kagan's record on gun issues.
Kopel, who is scheduled to be a Republican witness at Kagan's hearing, wrote his prepared testimony with attorney Stephen P. Halbrook. While Kopel and Halbrook note that Kagan has shown some solicitude for gun owners in her career, they claim that "[e]vidence of a hostile attitude towards the Second Amendment can be found at the beginning of [Kagan's] legal career." As evidence, Kopel and Halbrook point to the fact that, as a clerk to Justice Thurgood Marshall in the 1987, Kagan said she was "not sympathetic" to a person who asked the Supreme Court to hear a challenge to the District of Columbia's handgun laws.
This is an old smear forwarded more than a month ago by The Drudge Report and we've debunked it before. First, as Justice John Paul Stevens has noted, before 2001, no federal appeals court had ever held that the Second Amendment protected individual rights and the Supreme Court certainly had not done so. And when the Supreme Court found that such an individual right existed in 2008, four justices dissented. So it was hardly out of the mainstream for Kagan to advise Marshall to vote not to hear the case.
Second, contrary to Kopel's and Halbrook's assertion that "Obviously the phrase 'I'm not sympathetic' expressed Kagan's personal views," legal expert and former Supreme Court clerk Eugene Volokh has stated that the memos show Kagan "doing what she was supposed to do" which "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." Indeed, Kagan herself has said that the purpose of her memos was to "channel" Marshall.
Third, Kagan's 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.
On Fox News' Special Report, Carl Cameron and Fred Barnes promoted the myths that Supreme Court nominee Elena Kagan "bann[ed]" military recruiting at Harvard Law School, and that Kagan's opposition to the military's "Don't Ask, Don't Tell" policy contradicts her being "tremendously supportive of the military."
Conservatives media have falsely suggested that Justice Sonia Sotomayor testified untruthfully about her views on the Second Amendment and have used that false allegation to suggest that people should not believe Elena Kagan's testimony during her confirmation hearing.
The false allegation is based on (1) the fact that Sotomayor testified at her confirmation hearing that she "accepted" the Court's earlier decision that the Second Amendment created an individual right and (2) the fact that yesterday she dissented from a case that extended gun rights to states and local governments.
In fact, there is no inconsistency between Sotomayor's testimony and the dissent she joined yesterday on gun rights issues. The dissent she joined 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. Rather, the opinion stated that the individual right to bear arms should not be applied to state and local laws.
Moreover, the context of Sotomayor's testimony at her confirmation hearing makes clear that she was saying "accepted" the decision as a federal appellate judge -- the job she held at the time. Sotomayor was not that she would vote to uphold Heller as a Supreme Court justice.
Indeed, when discussing gun rights issues, Sotomayor testified that she "would not prejudge any question that came before me if I was a justice on the Supreme Court."
From the June 28 broadcast of Radio America's The G. Gordon Liddy Show:
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From the June 28 edition of MSNBC Live:
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From the June 25 edition of Fox News' Hannity:
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From the June 25 broadcast of Premiere Radio Networks' The Glenn Beck Program:
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What does it say about a news organization when its leader tells easily disproven lies?
WorldNetDaily editor and CEO Joseph Farah does exactly that in a June 21 WND article attacking Supreme Court nominee Elena Kagan. The article is headlined "Anti-military zealot on Supreme Court?" and quotes Farah as saying that "Kagan is a radical anti-military and pro-abortion zealot."
That is demonstrably false. Kagan is on the record as repeatedly praising the military for its "courage," "dedication" and "great service," and she has called military service "the greatest service a person can give for their country." And if Kagan is such a "zealot," would she be receiving the support of solicitors general from across the political spectrum, such as Democratic appointees Walter Dellinger, Drew Days, and Seth Waxman and Republican appointees Charles Fried, Kenneth Starr, and Theodore Olson?
This isn't the only lie Farah tells. He's also quoted as saying: "This woman, as president of her university, banned the U.S. military from recruiting on campus. … Just contemplate rewarding that kind of vehemently anti-American action with a lifetime appointment to the Supreme Court. Elena Kagan must be stopped."
First, Kagan is not "president of her university"; she is dean of her university's law school. Second, she did not "ban the U.S. military from recruiting on campus"; law school students had access to military recruiters during her entire tenure as dean, and she prohibited military recruiters from using the school's career services office for only a single semester.
The short answer to why a journalist would tell so many lies to his readers is that Farah is not a journalist -- he is an activist. And his WorldNetDaily is not a news organization; it is, for all practical purposes, a for-profit activist group.
Speaking of profit, there is a reason Farah is telling you these lies -- he has something to sell you. Farah would like to join his "Stop Kagan Campaign," in which you send him $24.95 to deliver "personalized, individually addressed, anti-Kagan letters to all 100 U.S. senators by Fed Ex." Farah adds: "It's a phenomenal bargain. … It makes it easy for you to sound off on this historically bad nomination. It's a small investment. And I am convinced that if enough Americans take advantage of it, Kagan will be stopped -- even by this Senate."
Ultimately, this isn't a "news" article at all -- it's an ad. It seems that Farah wants to make money so bad he's willing to tell blatant lies. And that tells you all you need to know about WorldNetDaily.
National Review Online's Robert VerBruggen falsely claimed that in a document she wrote as a Clinton administration official, Elena Kagan "apparently tied the NRA to the KKK." In fact, Kagan did no such thing.
From the June 18 broadcast of Premiere Radio Networks' The Glenn Beck Program:
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From the June 4 edition of Fox News' The O'Reilly Factor:
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The Los Angeles Times reported that "gun advocates have seized upon a short memo" Elena Kagan wrote as a clerk for Justice Thurgood Marshall in the late 1980s "in which she urged him not to hear the appeal of a man convicted of having an unlicensed gun." The Tmes added: "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.' But the Supreme Court ruled otherwise in 2008."
However, Kagan's statement was not an outside-the-mainstream position in 1987. In the 2008 case, 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.
Furthermore, in 1987, no Supreme Court or federal appellate court had found that the Second Amendment protected the right to carry guns for non-military purposes. In Heller, Stevens cited United States v. Miller, a 1934 Supreme Court case that upheld a ban on sawed-off shotguns, and stated: "Since our decision in Miller, hundreds of judges have relied on the view of the Amendment we endorsed there; we ourselves affirmed it in 1980." Stevens also stated:
Until the Fifth Circuit's decision in United States v. Emerson, 270 F. 3d 203 (2001), every Court of Appeals to consider the question had understood Miller to hold that the Second Amendment does not protect the right to possess and use guns for purely private, civilian purposes.
In addition, 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.
In a New York Times op-ed, John Yoo -- author of the infamous torture memos -- attacked Elena Kagan for agreeing with the Supreme Court majority rather than Yoo himself on the limits of presidential power. Yoo, a law professor and Philadelphia Inquirer columnist, previously urged a filibuster of anyone Obama nominated.
By attacking Kagan for not having the same extreme views as he does on executive power, Yoo does at least provide a rejoinder to those who forward the myth that Kagan will act as a rubber stamp on war on terror policies.
In his Times op-ed Yoo attacks Kagan for stating views of presidential power that are "in line with the views of a majority of the Supreme Court justices and many liberal scholars who feel the executive branch's powers are quite limited." Yoo goes on to attack Kagan for not adopting his own and Justice Scalia's views that congressional attempts to limit the president's control over the executive branch are unconstitutional:
In her law review article, Ms. Kagan also lauded Supreme Court holdings that Congress can prohibit presidents from firing subordinate officers, which effectively prevents the president from giving orders. This would place the executive agencies under the political thumb of the legislative branch. "I acknowledge that Congress generally may grant discretion to agency officials alone," Ms. Kagan wrote, and "the president must respect the limits of this delegation."
Under this approach, Congress could free the Justice Department, the Defense Department and any other agency created by Congress from presidential control. To be fair, Ms. Kagan thinks this would be a bad idea (she praised President Clinton's centralization of authority in the White House because it fostered "accountability" and "effectiveness"). But she argued that the Constitution gives the president no power to prevent Congress from doing so.
This is simply wrong. Article II of the Constitution vests in the president alone "the executive power" of the United States. As Justice Antonin Scalia wrote in his dissent from the court's 1988 decision upholding the constitutionality of the Office of the Independent Counsel, "this does not mean some of the executive power, but all of the executive power." (His argument was proved prescient in 1999 when Congress let the law authorizing the independent counsel lapse.)
It must be noted that the legal analysis of the president's inherent powers Yoo used in the torture memos was so shoddy the Bush administration was forced to withdraw them after they became public. Additionally, the Justice Department reportedly specifically repudiated Yoo's claim that the Fourth Amendment had "no application to domestic military operations."
Furthermore, at least one of the Bush administration's claims of executive authority went too far even for Scalia. In Hamdi v. Rumsfeld, a case in which a majority of justices rejected the Bush administration's power to hold U.S. citizens as enemy combatants on U.S. soil without access to civilian courts, Scalia went even further than the majority. In a dissenting opinion joined by Justice John Paul Stevens, Scalia argued that Congress had not authorized the suspension of habeas corpus and therefore the executive branch did not have the power to hold citizens like Hamdi. (Congress has since authorized detentions in the Military Commissions Act.)
Fox's John Stossel has repeatedly called for the repeal of part of the 1964 Civil Rights Act, saying that "private businesses ought to get to discriminate" and that free-market forces will resolve racial discrimination.