Ed Whelan and Volokh Conspiracy blogger Stewart Baker are attacking Elena Kagan for a brief the Solicitor General's office filed asking the Supreme Court to overturn one aspect of an Arizona law dealing with illegal immigration. (No, not the controversial SB 1070 that was passed earlier this year, but another law, which was passed in 2006 and punishes businesses for hiring undocumented immigrants.) Their attack is bizarre.
First, as Whelan and Baker acknowledge, the brief -- which was submitted by the Solicitor General's office on May 28 -- does not bear Kagan's name, because Kagan had recused herself before the brief was filed. Second, another blogger at the conserviative-leaning Volokh Conspiracy, Jonathan Adler has taken issue with the attacks on the Solicitor General's brief. And third, the overwrought is internally contradictory.
Baker, a former Bush administration official attacked the Solicitor General's office for filing a brief in Chamber of Commerce v. Candelaria that argues that the Supreme Court should strike down a portion of an Arizona law that imposes punishment on businesses that hire illegal immigrants. Baker states: "The brief takes positions that from a political and policy point of view are hard to square with, well, sanity. In leaving little room for states to address a problem the feds haven't solved, the brief gets to the left of the Ninth Circuit, which upheld this law." Later in the blog post, Baker states: "What does all this say about Elena Kagan, woman of mystery and Solicitor General until two weeks ago? Nothing good, I fear."
Whelan highlighted Baker's comments about Kagan, stating: "I'll highlight here Baker's harsh criticism of Elena Kagan's presumed role in the matter:
In fact, though, as Baker acknowledges in a portion of his post quoted by Whelan, Kagan "stopped acting as Solicitor General on May 17, and this brief was presumably filed on May 28, when it was released." Indeed, Kagan's name is not on the brief that Baker and Whelan attack. Baker's and Whelan's attack is based solely on pure speculation about how much work Kagan did on the brief before recusing herself from working as Solicitor General because of her Supreme Court nomination. Furthermore, even if they did have such evidence, it wouldn't be evidence of Kagan's personal views on the issue. As Kagan said in written questions regarding her Solicitor General nomination:
I understand that role [of the Solicitor General] 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.
Is Ed Whelan's Google still broken?
Last year, my colleague Sarah Pavlus noted that Ed Whelan speculated that there may be "Political Corruption" at the Congressional Research Service because it issued a report on selected opinions by Justice Sonia Sotomayor. Concluding his post, Whelan asked: "Has CRS ever before prepared an assessment of the record of a Supreme Court nominee?" A simple Google search would have answered the question for him. Even after Whelan updated his post to acknowledge that CRS had issued a report on Alito, Whelan suggested that CRS might not have issued reports prior to its reports on Alito and Sotomayor. Again, a simple Google search would have revealed that CRS did a report on Clarence Thomas as well.
The article reveals that Kagan may have been the only law school dean who used the Third Circuit's ruling as an excuse to discriminate against military recruiters (for background, see my point 2 here):
Boston College law professor Kent Greenfield, who founded the law school coalition, which ultimately lost its case at the Supreme Court, said he thinks that Harvard was the only school that stopped welcoming recruiters right after the 3rd Circuit ruling, although no one kept complete track.
Following a ruling by the U.S. Court of Appeals for the Third Circuit that a law requiring schools to give military recruiters equal access to campuses Kagan briefly applied Harvard's anti-discrimination to military recruiters. For one semester in 2005, Kagan barred Harvard Law School's Office of Career Services (OCS) from working with military recruiters due to the military's discriminatory "Don't Ask, Don't Tell policy." Nevertheless -- as the Post makes clear -- military recruiters continued to have access to Harvard students during that semester. During the rest of her deanship, Kagan made an exception to Harvard's anti-discrimination policy and allowed OCS to work with military recruiter.
Contrary to Whelan's suggestion that no other law schools restricted military recruiters, according to 2005 articles in the Yale Daily News and The New York Times, after the Third Circuit ruling, Yale Law School also refused to allow military recruiters to avail themselves of the facilities of its career office. In addition, according to the Yale Daily News, New York Law School, Vermont Law School, and William Mitchell College of Law also took actions similar to Harvard following the 3rd Circuit ruling.
Furthermore, 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.
Ed Whelan highlighted a Rasmussen Reports assertion that "[v]oters have an increasingly unfavorable opinion of Supreme Court nominee Elena Kagan" based on a recent Rasmussen poll. In fact, Rasmussen's findings are contradicted by other recent polls.
In a National Review Online blog post titled " 'Increasingly Unfavorable Opinion' of Kagan," Whelan stated: "By a margin of 47% to 41%, voters hold an unfavorable rather than a favorable view of Kagan." Whelan also claimed: "Voters also oppose Kagan's confirmation by a 3-point margin, 39% to 36%." Both these findings are contradicted by other polls. For instance, as noted by Pollingreport.com a Quinnipiac University poll of registered voters conducted between May 19-24 found that 48 percent of respondents "approved ... of President Obama's nomination of Elena Kagan to the Supreme Court," compared to 30 percent who disapproved.
In addition, a May 18-19 Fox News/Opinion Dynamics poll of registered voters found that 39 percent of respondents said that they would vote to confirm Kagan's nomination, compared to 29 percent who said they would vote against her nomination. The Fox News poll also found that 45 percent of respondents said that Kagan "is qualified to serve as a justice on the Supreme Court" compared to 26 percent who said she was not qualified.
Ed Whelan claimed that, as dean of Harvard Law School, Elena Kagan "selectively" applied Harvard Law School's anti-discrimination policy when she restricted military recruiters from working with the law school's Office of Career Services (OCS). In doing so, Whelan makes a false contrast between Harvard's treatment of the American Red Cross and its treatment of military recruiters.
Most important, Whelan's continued suggestion that Kagan acted out of anti-military animus rather than because of Harvard Law School's antidiscrimination policies is contradicted by numerous facts: Kagan has repeatedly praised the military, veterans, and members of the armed forces. 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." according to the Harvard Law Record Iraq veteran Geoff Orazem said, "Kagan has great respect for the military."
Robert Merrill, a captain in the Marine Corps who is serving as a legal adviser to a Marine infantry battalion in Afghanistan and who graduated from HLS in 2008 wrote in a Washington Post op-ed that Kagan "treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association." And at Volokh Conspiracy, a group blog run by mostly conservative and libertarian 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." Furthermore, according to data Media Matters for America obtained from Harvard Law School, military recruitment did not drop as a result of Kagan's decision to bar OCS from working with military recruiters during the spring 2005 semester.
In addition, Kagan's specific argument is nonsensical. To back up his attack that Kagan selectively applied Harvard's anti-discrimination policy, Whelan falsely contrasted Kagan's banning of military recruiters from working with the Office of Career Services with Harvard's decision to allow the "law school's Republican Club to sponsor a blood drive by the American Red Cross even though the Red Cross does not allow gay men to give blood. (The Red Cross currently supports a "data-based reconsideration" of the FDA ban on blood donations by gay men.)
Matt Drudge posted a headline stating that Elena Kagan is " 'Not Sympathetic' to Gun Rights Argument," referencing comments Kagan reportedly made in a 1987 memo about an appeal to the Supreme Court. In fact, the view that the Second Amendment does not protect civilian gun rights was generally accepted at the time Kagan wrote those words.
Sean Hannity and Glenn Beck have falsely suggested Elena Kagan's college thesis shows she is a socialist or radical. 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.
Conservative media figures have attacked Elena Kagan for having grown up in New York City, arguing that her New York origins indicate she "has no clue how real Americans live."
As we've noted, National Review Online blogger Ed Whelan has falsely claimed that Solicitor General Kagan said prior judicial experiences is an "apparent necessity" for Supreme Court nominees. Whelan spread the falsehood on MSNBC Live, stating to MSNBC host Tamron Hall: "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":
Whelan has now acknowledged that he was wrong: Kagan did not claim that judicial experience was a necessary qualification for Supreme Court nominees and that Kagan indeed said the opposite -- that other legal experience may also be sufficient.
Ed Whelan baselessly claimed that, as Solicitor General, Elena Kagan has "indulged her own ideological views ... on gay rights" rather than defend federal law. In fact, neither of the cases Whelan cites support his claims that Kagan did not vigorously defend federal laws in court -- as the Solicitor General is required to do.
Ed Whelan claimed that Elena Kagan excluded military recruiters "from the Harvard law school campus" and "treated military recruiters worse than she treated the high-powered law firms" that represented terror suspects. But this comparison is flawed because Kagan's military recruiting policy was guided by the school's decades-old anti-discrimination policy; moreover, students had access to military recruiters throughout Kagan's tenure as dean.
National Review Online and the Fox Nation distorted a Daily Princetonian article in order to suggest Supreme Court nominee Elena Kagan's senior thesis shows that she supports socialism. Both NRO and the Fox Nation excerpted from the article but edited out statements from Kagan's thesis adviser disputing those claims.
National Review's Ed Whelan throws the kitchen sink at Supreme Court nominee Elena Kagan:
In addition to her kicking military recruiters off Harvard's campus during wartime* and being paid for a comfy position on a Goldman Sachs advisory board, this passage (from this article) nicely captures Elena Kagan's remoteness from the lives of most Americans:Kagan ... is such a product of New York City that she did not learn to drive until her late 20s. According to her friend John Q. Barrett, a law professor at St. John's University, it is a skill she has not yet mastered.
Now, my first reaction to that was shock that Whelan would actually criticize a woman nominated to the nation's highest court for being a bad driver. I can only assume Whelan is now hard at work on a follow-up post portraying Kagan as bad at math.
But that was quickly followed by annoyance at the silly regional warfare Whelan is trying to provoke by painting Kagan as an out-of-touch New Yorker. First, as Matt Gertz notes, that's a mindless smear of millions of residents of New York City (and, by the way, the kind of geographic bigotry conservatives would rage about if it were directed at Southerners or Midwesterners.)
I was also amused by Whelan's linking of not learning to drive with being a subway-riding city-slicker. See, though I (barely) learned to drive when I was 16, I never got around to getting a driver's license and haven't driven a car since my learner's permit expired shortly thereafter. But I didn't grow up in mid-town Manhattan; I grew up in a town of about 300 people -- a town with no gas station, no stop lights, no ... well, no anything. The nearest movie theater, for example, was about 20 miles away. But I didn't have a car, or the money to buy one. Getting a driver's license would have been a largely symbolic exercise. (Since then, I have lived in Washington, DC, where driving is not particularly necessary.)
To be sure, most people I knew growing up -- and most people I know now -- know how to drive. But I'm quite certain that there are plenty of other adults who have negligible driving experience not because they are the embodiment of the conservative caricature of a limo-riding New York City elitist but because they couldn't afford to drive. And I'm quite certain you can find people like that in small cities and towns throughout America. Whelan reveals his own elitist assumptions when he links a lack of driving experience with purported big-city elitism.
* No, Whelan isn't telling the truth: Kagan did not "kick military recruiters off Harvard's campus."
In the latest evidence that National Review Online's Ed Whelan is just throwing everything he can at the wall and hoping something sticks to Supreme Court nominee Elena Kagan, Whelan is now attacking her for... not learning to drive until her late 20s. According to Whelan, this "nicely captures Elena Kagan's remoteness from the lives of most Americans."
Putting aside for a second the deeply bizarre idea that one's ability to drive should be a qualification or disqualification for high office, as the article Whelan quotes from points out, Kagan grew up in New York City, which is one of the most walkable cities in the country and has one of the best public transportation systems nationwide. You don't need a license if you live in NYC, and in fact a large percentage of New Yorkers don't have one: New York City has 5.6 million residents over age 25, but only 3.3 million residents have drivers' licenses.
My 90-year old grandmother is one of those New Yorkers without a license; in fact, all four of my grandparents lived in the city either from birth or since immigrating to the U.S., and none of them ever learned to drive. My parents grew up in New York City, and also did not learn to drive until their late 20s.
Whelan, though, wants his readers to think this makes Kagan deeply weird, and somehow unsuitable to be a Supreme Court justice. And the only way that works is if he tars a large percentage of New Yorkers as being different from "real Americans."
After Media Matters for America pointed out flaws in his argument, Ed Whelan has attempted to defend his claim that Ninth Circuit Judge Sidney Thomas' decision in Harper v. Poway Unified School District showed that Thomas was on "the far Left." Most laughably, Whelan complains that Media Matters "cites a quote from a Montana district judge that Thomas 'has never let his politics get in the way of sound judgment.' " Whelan asks: "What evidence is there that that district judge has familiarized himself with the controversial aspects of Thomas's record?" What evidence exists? Is Whelan serious?
The judge in question, Chief Judge for the U.S. District Court for the District of Montana Richard Cebull -- an appointee of George W. Bush -- has been a district judge in the Ninth Circuit for close to nine years. Before that, Cebull was a federal magistrate judge for more than two years. During that time as a magistrate and district judge, Cebull has published hundreds of decisions -- and likely presided over thousands of cases. Cebull has been applying binding precedents written by Thomas during all that time. During that time, Thomas has also presided over appeals of Cebull's cases. If Thomas was an ideologue, would it really have escaped Cebull's notice for all these years?
In addition, Media Matters showed that conservative appellate court Judge Richard Posner had ruled -- like Thomas did -- that schools have broad leeway to ban derogatory speech. Whelan's response is that unlike Posner, Thomas was "approving of viewpoint discrimination restrictions" because the school in Harper allowed -- in the words of the dissent -- "pro-gay speech" but was trying to "gag other viewpoints." Completely undermining Whelan's response, however, is the fact that Posner was also dealing with a school that had allowed "pro-gay speech" as Whelan and the Harper dissent defined it but was trying to ban statements that were derogatory about gays and lesbians.
We just pointed out in response to Ed Whelan's comments about Elena Kagan that military veterans at Harvard Law School strongly criticized the notion that Kagan was anti-military. But we need to highlight one other line in Whelan's post . Whelan writes of Kagan's decision to allow the military full recruiting access despite her opposition to "Don't Ask Don't Tell": "But, as George Bernard Shaw would have said to Kagan for selling out her supposedly deeply held principles, 'We've already established what you are, ma'am. Now we're just haggling over the price.' "
Update: Immediately after the portion I quoted, Whelan states "(My point isn't that Kagan deserves the Bernard Shaw slam--she doesn't--but rather that she evidently doesn't believe her own rhetoric.)"