In a Washington Times column accompanied by an image of Elena Kagan in a turban, Frank Gaffney attacked Kagan for allowing Harvard Law School to sponsor an Islamic Finance Project during her deanship. However, sponsorship of Islamic finance programs is not extreme; the Bush administration sponsored such programs, as have major banks.
Last week, conservatives got very excited by a Wall Street Journal editorial speculating that Elena Kagan must have given an opinion on litigation Florida and other states filed challenging the constitutionality of the health care reform legislation. Conservative activist and National Review Online blogger Carrie Severino co-wrote a letter demanding that senators "clarif[y]" whether Kagan had participated in the case. And all seven of the Judiciary Committee Republicans signed a letter asking her a series of questions about whether she had given any advice about the constitutionality of the health care bill or strategies for defending that bill in court.
In response to the Judiciary Committee Republicans, Kagan said that she did not comment on the constitutionality of the health care reform legislation or the litigation challenging that legislation.
That should end matters. But not for Severino. She has written an NRO blog post basically accusing Kagan of lying. Severino complained about the "utter implausibility of the idea that she never discussed of any issues surrounding health care" and spins a conspiracy theory that "Kagan, the White House, and Senator Leahy are not taking this process seriously, and instead are cooperating to push her vote through as quickly as possible."
Of course, Kagan didn't say she has never discussed "any issues surrounding health care." Regarding what Kagan actually said, it's not Kagan's job to comment on the constitutionality of a statute pending before Congress. That's the job of the Justice Department's Office of Legal Counsel and the attorney general (who, on very rare occasion, might ask others for an opinion if he or she disagrees with the Office of Legal Counsel's findings -- something that apparently didn't happen in this case).
Furthermore, as Severino acknowledges, Kagan said she stopped attending the attorney general's morning meetings "some time in early-to-mid-April." Kagan also wrote that she scaled back her participation "in more general departmental matters (which were not extensive to begin with)" soon after March 5, the date on which she was informed that the president was considering her for a possible Supreme Court nomination.
President Obama signed the health care bill on March 23 and the lawsuit challenging that law was filed the same day. That means that within a couple of weeks of the health care legislation becoming law and the filing of the case challenging the health care litigation, Kagan stopped attending the very meetings that the Journal identified as ones in which she must have spoken on the issue.
Rather than proof of any nefarious conspiracy theories, Kagan's responses have settled the recusal issue for everyone but the diehards.
Media Matters for America has compiled an updated list of 45 myths and falsehoods about Solicitor General Elena Kagan's Supreme Court nomination.
From the July 19 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Right wing bloggers are promoting Americans United for Life's false suggestion that Elena Kagan lied about her involvement with the American College of Obstetrics and Gynecology's (ACOG) statement on "partial-birth abortion." In fact, Kagan's testimony is completely consistent with the evidence AUL cites.
National Review Online's Ed Whelan and Carrie Severino attacked President Obama for nominating Louis Butler to a federal judgeship after he lost his electoral bid to retain his seat on the Wisconsin Supreme Court. In fact, there is nothing unusual about Butler's appointment: President Bush successfully appointed federal judges who lost a state court election race.
From the July 13 broadcast of ABC Radio Networks' The Mark Levin Show:
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In a Washington Times column, Tony Blankley essentially calls for senators to filibuster the nomination of Elena Kagan to "save the Republic." His sole reason for calling for the filibuster is Kagan's testimony that "I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and the laws of the United States." In fact, as we've documented, Kagan's testimony about natural rights is consistent with testimony given by conservative Justice Clarence Thomas at his confirmation hearing.
In his column, Blankley attempts to contrast Kagan's testimony on natural rights with statements by Abraham Lincoln and former Chief Justice John Marshall. Blankley even concludes, "senators have had their warning: Side with Abraham Lincoln and the republic or with Elena Kagan."
Blankley quotes Kagan saying:
"To be honest with you, I don't have a view of what are natural rights independent of the Constitution, and my job as a justice will be to enforce and defend the Constitution and the laws of the United States."
"I'm not saying I do not believe that there are rights pre-existent [to] the Constitution and the laws. But my job as a justice is to enforce the Constitution and the laws. You should not want me to act in any way on the basis of such a belief [in an inalienable right to life, liberty and the pursuit of happiness] if I had one [said on being asked if she disagreed with the Declaration of Independence's enunciation of inalienable rights]."
But this testimony is not controversial. In fact, Clarence Thomas similarly stated at his hearing that he didn't "see a role for the use of natural law in constitutional adjudication." He testified:
As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.
The Washington Times and The Wall Street Journal have attacked Elena Kagan for her testimony that the Supreme Court has said that Congress' power under the Commerce Clause extends to "anything that would substantially affect interstate commerce." In fact, Kagan's testimony accurately reflects what all current members of the Supreme Court have said about the Commerce Clause.
In a July 13 editorial, The Wall Street Journal counsels Elena Kagan to recuse herself from "sitting in judgment" on a case brought by Florida and other states against the health care reform law, and gives two reasons for recusal. First, the editorial speculates that the litigation "must have come up" at a Justice Department meeting she might have attended and asserts: "We doubt that Ms. Kagan would have stayed mum" at that meeting. The Journal calls for senators to submit written questions to Kagan about "whether the legal challenges to ObamaCare ever arose in her presence at Justice." Second, the editorial argues that because Kagan testified about the limits of the Commerce Clause at her hearing, she must recuse herself from the health care litigation.
The problem with the first reason the Journal gives for recusal is that senators had ample opportunity to question Kagan during the Judiciary Committee hearing on her nomination and subsequently submitted dozens of written follow-up questions for Kagan, and, according to the Journal editorial itself, no one thought the Journal's question was important enough to ask.
The problem with the second reason is that a standard requiring the recusal of any justice who has already discussed the limits of the Commerce Clause would result in all of the sitting justices being recused.
RedState.com's Brian Darling has responded to our debunking of his argument that Elena Kagan showed "hostility to Second Amendment rights" by not filing a brief in McDonald v. City of Chicago, the case that extended the individual right to bear arms to states and local government. While he doesn't say it in so many words, Darling essentially admits that we were right.
Darling acknowledges that the sole issue the Supreme Court decided in McDonald was whether the Second Amendment applied to states and local governments, not the scope of the protections of the Second Amendment. I.e., the Supreme Court decision has no implications for whether any federal gun laws are unconstitutional. He writes:
I stipulate to the point that the holding in the case answers the question of "whether the Second Amendment right to keep and bear Arms is incorporated as against the States by the Foureenth Amendment's Privileges or Immunities or Due Process Clauses."
Darling also does not contest Constitutional Accountability Center Doug Kendall's statement that the solicitor general's office has a "tradition of not weighing in" on cases like McDonald that decide whether the protections of the Bill of Rights apply to the states.
Furthermore, Darling also doesn't contest the fact that the solicitor general was free to choose to weigh in on either side in McDonald and does not explain why Kagan's decision not to weigh in at all shows hostility to gun rights.
Darling makes one additional argument on McDonald in his latest post. He writes: "It is my understanding that Kagan met with attorneys representing harmed parties in the McDonald case and decided not to file a brief. If the Solicitor General had no interest in the case, why did the Solicitor General's office meet with counsel?"
In fact, attorneys who have cases before the Supreme Court that do not directly involve the federal government regularly meet with the solicitor general to ask that the office file a brief supporting their side (or ask that the office not file a brief supporting the other side). Former assistant solicitor general Carter Phillips has stated in an article in The Journal of Appellate Practices and Process (via Nexis): "Actually, one of the better-kept secrets inside the beltway is how relatively easy it is for both private and government lawyers to meet with the Solicitor General on appellate issues."
Indeed, Patricia Millett, another former assistant solicitor general stated in the Journal of Appellate Practices and Process (via Nexis): "[C]ounsel in a case in which Supreme Court review has been granted would be well advised to contact the Solicitor General's Office about its potential participation in the case. As at the certiorari stage, counsel should call the Office and request a meeting or telephonic discussion with the Deputy Solicitor General and Assistant to the Solicitor General who are assigned to the case."
To sum up, Darling still does not explain why Kagan's decision not to file a brief in McDonald shows hostility to the Second Amendment. He does not contest the facts that no federal statutes were implicated by McDonald and the solicitor general generally does not weigh in on such cases. And his argument that Kagan's meeting with attorneys in the McDonald case is significant doesn't hold water.
It's simply not credible to argue that Kagan's actions in McDonald show hostility to gun rights.
National Review Online's Ed Whelan is posting a "series of posts explaining some of the respects in which I find [Elena Kagan's] testimony unsatisfactory." Based on the early examples, I don't think we can expect very much from them.
For instance, in one post, Whelan falsely suggests that Kagan has refused to defend the "Don't Ask, Don't Tell" policy.
Whelan has previously attacked Kagan for refusing to immediately challenge a decision by the Ninth Circuit that required the government to provide further evidence to support its contention that the "Don't Ask, Don't Tell" policy was constitutional.
Whelan notes that at her hearing, Kagan stated that she thought it would be a stronger litigation strategy not to pursue an immediate appeal to the Supreme Court for tactical reasons.
Whelan does not attempt substantively to challenge Kagan's argument that further proceedings would have given the government a stronger argument that the Ninth Circuit's decision was overly-burdensome should Supreme Court review have become necessary. He just claims that the Ninth Circuit's decision was clearly wrong, and the Supreme Court would have clearly recognized that.
Whelan then engages in a bit of mindreading. He writes:
What did not seeking immediate review really achieve? It enabled those in the Obama Administration, like Kagan, who opposed Don't Ask, Don't Tell to buy time as they worked to reverse it. And it enabled Kagan to duck taking a public position on a hot-button issue that might have complicated her prospects for a Supreme Court nomination.
But Kagan proved Whelan's claim to be utterly false at her hearing. Kagan did "take a public position" on behalf of the Obama administration on the constitutionality of Don't Ask, Don't Tell.
As Kagan testified (via Nexis):
KAGAN: So take the Pietrangelo case first, which was the First Circuit case, where the First Circuit upheld the "don't ask/don't tell" policy, and Mr. Pietrangelo brought a challenge to that decision, and the question was -- you know, he was challenging a decision that the -- the government very much approved of, which was a decision that upheld the "don't ask/don't tell" policy.
And we told the court, in no uncertain terms, not to take the case, and we defended the statute vigorously. We told the court not to take the case because the statute was constitutional.
So in that Pietrangelo brief that I filed -- and it's a brief on which I'm counsel of record -- the -- the -- the argument is made vigorously that the "don't ask/don't tell" statute is fully constitutional, given the appropriate standard of review, and particularly given the deference that courts properly owe to the military.
So the Pietrangelo brief is a brief -- and, again, I'm counsel of record on that brief -- in which the U.S. government vigorously defended the "don't ask/don't tell" policy and statute, more importantly, and told the court not to take a case which challenged a decision upholding that statute. [emphasis added]
And indeed, the brief Kagan filed in Petrangelo v. Gates did exactly what Kagan said. The brief Kagan filed stated:
Petitioner contends (Pet. i, 5-6) that this Court should grant a writ of certiorari to determine whether 10 U.S.C. 654 violates his substantive due process, equal protection, and free speech rights. The decision of the court of appeals is correct and does not conflict with any decision of this Court.
The brief then went on to defend the constitutionality of Don't Ask, Don't Tell on all of these grounds.
(It should be noted that the Solicitor General has an obligation to defend the constitutionality of federal statutes and, thus, her defense of Don't Ask, Don't Tell does not necessarily reflect her personal views on the subject.)
The Las Vegas Review-Journal charged Elena Kagan with taking an extreme position while defending a statute written to ban animal "crush videos." In fact, the Supreme Court stated that Kagan's brief was grounded in precedent, Justice Samuel Alito sided with the government in the case, and Kagan has said that she was doing her best to defend the statute, as is consistent with her solicitor general duties.
From the July 1 edition of Talk Radio Network's The Savage Nation:
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My colleague Ben Dimiero has pointed out that blogger Pam Geller posted a photoshopped a picture of Elena Kagan in a Nazi uniform in an unhinged attack against Kagan.
But Geller appears not to be alone in having developed Kagan Derangement Syndrome. Today, Jeffrey Kuhner uses his Washington Times column to accuse Kagan of treason.
Kuhner repeats many myths and falsehoods about Elena Kagan, including the myth that she supported Shariah at Harvard, the myth that she favors government redistribution of speech, the myth that she banned military recruiters on Harvard's campus, the myth that she "manipulated medical findings" related to so-called "partial birth abortion," and the myth that she is unqualified.
But Kuhner appears angry that his debunked claims against Kagan aren't whipping people up sufficiently. He writes "If the Republicans cannot stand up against such a blatantly unqualified nominee and irresponsible ideologue, it is time conservatives consider abandoning the GOP and creating a third party."
Clearly frustrated by such inaction, Kuhner upped the rhetoric about ten notches, claiming that Kagan's actions toward military recruiters constituted "treason":
Moreover, her decision to bar military recruiters was not simply a matter of political judgment. It was an act of treason. At the time, America was fighting two bloody wars in Iraq and Afghanistan. Our troops were dying. Ms. Kagan sought to deny access to potential military recruits when they were most needed.
Of course, the number of law students who joined the military did not decrease during Kagan's tenure as Harvard Law School dean. But that fact doesn't mesh with Kuhner's argument against Kagan's nomination, which now rests on the accusation that she's guilty of a crime punishable by life imprisonment (or arguably even death).