On first day of hearing, Special Report pushes Kagan myths

››› ››› FAE JENCKS

Fox News' Special Report used the first day of her Supreme Court confirmation hearing to push several myths and falsehoods about Elena Kagan.

MYTH: Kagan supported a "ban on campus military recruitment" at Harvard Law

CLAIM: Kagan supported a "controversial wartime ban on campus military recruitment." During a recap of the first day of Kagan's confirmation hearings, Fox News chief political correspondent Carl Cameron claimed that "as dean of the Harvard Law School, she made headlines" for "supporting a controversial wartime ban on campus military recruitment."

FACT: Harvard students had access to military recruiters during Kagan's 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. Kagan became dean of Harvard Law in June 2003. In accordance with Harvard's pre-existing nondiscrimination policy, she barred the school's Office of Career Services (OCS) from working with military recruiters for the spring 2005 semester after the U.S Court of Appeals for the 3rd Circuit ruled that law schools could legally do so. During that one semester, students still had access to military recruiters via the Harvard Law School Veterans Association. During the fall 2005 semester, after the Bush administration threatened to revoke Harvard's federal funding, Kagan once again granted military recruiters access to OCS.

FACT: Military recruitment continued throughout Kagan's tenure at Harvard. The notion that military recruitment was banned during Kagan's tenure is contradicted by data Media Matters obtained from Harvard Law School's public information officer, which indicated that graduates entered the military during each year Kagan served as dean. Moreover, the prohibition on Harvard Law's OCS working with military recruiters existed only during the spring 2005 semester, meaning that it could only have affected the classes of 2005, 2006, and 2007. However, the number of graduates from each of those classes who entered the military was equal to or greater than the number who entered the military from any of Harvard's previous five classes.

FACT: Former Harvard Law School Dean said "[T]he practical effect on recruiting logistics was minimal." In a Wall Street Journal op-ed, former Harvard Law School Dean Robert Clark wrote (emphasis added):

As dean, Ms. Kagan basically followed a strategy toward military recruiting that was already in place. Here, some background may be helpful: Since 1979, the law school has had a policy requiring all employers who wish to use the assistance of the School's Office of Career Services (OCS) to schedule interviews and recruit students to sign a statement that they do not discriminate on the basis of race, gender, sexual orientation, and so on.

For years, the U.S. military, because of its "don't ask, don't tell" policy, was not able to sign such a statement and so did not use OCS. It did, however, regularly recruit on campus because it was invited to do so by an official student organization, the Harvard Law School Veterans Association.

The symbolic effect of this special treatment of military recruiters was important, but the practical effect on recruiting logistics was minimal.


In November 2004, however, the Third Circuit Court of Appeals found that the Solomon Amendment infringed improperly on law schools' First Amendment freedoms. So Ms. Kagan returned the school to its pre-2002 practice of not allowing the military to use OCS, but allowing them to recruit via the student group.

Yet this reversion only lasted a semester because the Department of Defense again threatened to cut off federal funding to all of Harvard, and because the U.S. Supreme Court reversed the Third Circuit's decision. Once again, military recruiters were allowed to use OCS, even as the dean and most of the faculty and student body voiced opposition to "don't ask, don't tell."

MYTH: Kagan lacks "courtroom experience"

CLAIM: "We don't have a lot of specifics about Kagan because of her lack of courtroom experience." Host Bret Baier advanced the false claim that Kagan does not have courtroom experience by introducing a segment on Kagan by stating, "While we don't have a lot of specifics about Kagan because of her lack of courtroom experience, there are some signals of what kind of justice she might be."

FACT: Kagan worked for two years in private practice as an associate at Williams & Connolly. Kagan worked in private practice as an associate in the Washington, D.C., office of Williams & Connolly from 1989 to 1991. Kagan litigated cases during her time at Williams & Connolly.

FACT: Kagan has had six oral arguments before the Supreme Court as solicitor general. As she wrote in her Judiciary Committee questionnaire, Kagan has argued before the Supreme Court six times as solicitor general.

FACT: Kagan has signed over 170 briefs as solicitor general. Kagan has also filed more than 170 briefs as solicitor general.

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.)

MYTH: Kagan's praise of Israeli Supreme Court Justice Barak is troubling

CLAIM: Kagan's "judicial hero" Justice Barak is "way out of the American mainstream," calling her own beliefs into question. Baier introduced a segment profiling retired Israeli Supreme Court Justice Aharon Barak by stating, "not that much is known about Kagan, but we might gain some insight by looking at someone she admires." The segment went on to forward the claims of Robert Bork and other conservatives that they are "concerned" that Kagan called Barak her "judicial hero" because some of Barak's views are supposedly "way out of the American mainstream." Additionally, on Special Report's All-Star Panel, Weekly Standard editor Fred Barnes claimed that Kagan is "a liberal activist who likes that type of judge -- you know, her favorite judge is that Israeli judge who thinks that judges should rule not on the rule of law but on whatever is their concept of justice."

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."

Fox News Channel
Bret Baier
Special Report with Bret Baier
Supreme Court Nominations, 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.