MYTH: Kagan banned military recruiters from Harvard

Wash. Times: “Kagan banned military recruiters from campus.” The Washington Times reported on June 27 that “Kagan banned military recruiters from campus in protest over the Pentagon's policies on gays.”

REALITY: Harvard students had access to military recruiters during Kagan's entire tenure as dean

Kagan consistently followed the law, and Harvard students had access to military recruiters during her 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. 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 her confirmation hearing as solicitor general in 2009, Kagan pledged to defend the Solomon Amendment.

Harvard's nondiscrimination policy applied to all employers, not just the military. As Supreme Court expert and attorney Tom Goldstein noted in a May 8 SCOTUSblog post: “Some commentators have claimed that Kagan's position on the Solomon Amendment reflects an anti-military bias. That criticism is unsound. Harvard's position -- which predates Kagan's tenure as dean -- was not directed at the military but instead is a categorical nondiscrimination rule applicable to all potential employers. It is a position that is widely shared among American law schools.” Similarly, legal commentator Stuart Taylor stated:

But did she discriminate? On reflection, I think not. Rather, Kagan sought to subject military recruiters to the same rules as other employers. These rules included the law school's longstanding policy excluding from its Career Services Office any employer who discriminated against openly gay people.

MYTH: Kagan is “hostile” toward Second Amendment

Erickson: Kagan is “hostile to Second Amendment rights.” In a June 27 RedState post, Erick Erickson wrote: “If the NRA is really working with pro-guns Senators and Kagan is really hostile to Second Amendment rights, which she is, they will score her confirmation vote and actually make the score count this time, unlike they did on the confirmation of Sonya [sic: Sonia] Sotomayor.”

Malkin: “Kagan's hostility to the 2nd amendment is certain to be raised by Republicans.” In a June 28 post, Michelle Malkin stated that “Kagan's hostility to the 2nd amendment is certain to be raised by Republicans" during Kagan's confirmation hearings.

REALITY: Kagan's views on Second Amendment are within the mainstream

Report: In 1987 memo, Kagan wrote she was “not sympathetic” to argument that Second Amendment protected civilian gun rights. Many conservatives have attacked Kagan over a 1987 memo, in which she wrote she was “not sympathetic” to the argument that the Second Amendment protected civilian gun rights. As a May 13 Bloomberg News article reported:

Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man's appeal.

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.”

Scalia agrees with Kagan that Second Amendment rights are “not unlimited.” In her solicitor general confirmation hearing, Kagan said that following the 2008 Supreme Court case of District of Columbia v. Heller, “there is no question ... that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation.” Kagan's statement that Second Amendment rights are “not unlimited” is not controversial. The majority opinion in Heller, which was written by Antonin Scalia and joined by the Supreme Court's most conservative members, stated:

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.

[...]

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.

Supreme Court has upheld gun restrictions. In his majority opinion, Scalia listed gun restrictions that the courts have long upheld as constitutional, including “prohibitions on carrying concealed weapons,” prohibitions on “the carrying of 'dangerous and unusual weapons' ” such as an M-16 rifle, and “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.”

Kagan's 1987 statement that she was “not sympathetic” to a gun rights argument was consistent with generally accepted constitutional scholarship at the time. A May 13 Bloomberg News article reported:

Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man's appeal.

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.”

In fact, the view that the Second Amendment does not protect civilian gun rights was generally accepted at the time Kagan wrote those words.

In 2008, Stevens and three other justices agreed that the Second Amendment did not protect gun rights for nonmilitary purposes. In a dissent to 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. From Stevens' dissent:

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U. S. 174 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature's authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.

In 1987, no Supreme Court or federal appellate court decision had found that the Second Amendment protected the right to carry guns for nonmilitary purposes. In Heller, a 2008 case, 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 the legal context, the phrase “not sympathetic” does not connote personal political views. Contrary to suggestions by conservatives, 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.

Myth: Kagan is unqualified because she hasn't been a judge

FoxNews.com forwards Sessions' “concerns about Kagan's level of experience,” including that she “does not have a judicial background.” A June 27 FoxNews.com article stated:

Sen. Jeff Sessions, R-Ala., ranking Republican on the Judiciary Committee, said he has concerns about Kagan's level of experience -- she is the Obama administration's solicitor general, but does not have a judicial background. Every other member of the Supreme Court came from federal appeals court posts.

“She has the least experience of any nominee at least in the last 50 years,” Sessions said on CBS' “Face the Nation.” “And so I think that raises questions.”

REALITY: Kagan's experience is comparable to conservative justices, and at least 38 justices had no judicial experience before being nominated to the court

Kagan's legal experience is comparable to that of conservative justices, and experts agree that she is qualified for the Supreme Court. As Media Matters has noted, the American Bar Association gave Kagan its highest rating: well qualified. Justice Antonin Scalia reportedly said that he was “happy to see that this latest nominee” is “not a judge at all.” Retired Justice Sandra Day O'Connor said it didn't matter that Kagan had not been a judge. In addition, other legal experts and prominent conservatives reject claims that Kagan isn't qualified. At least 38 justices -- including two of the past four chief justices -- had no judicial experience when they were first nominated for the Supreme Court. And Kagan's legal experience is comparable to that of several recent conservative justices at the time of their nominations: William Rehnquist, Clarence Thomas, and John Roberts.

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.

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.

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.

Thomas and Roberts had little judicial experience before being nominated to Supreme Court. Clarence Thomas had served as a judge for 16 months and John Roberts had served for roughly two years at the time they were nominated to the Supreme Court by Republican presidents.

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.

Scalia 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."

O'Connor said “I don't think” judicial experience should matter and predicted that Kagan would be confirmed. From the ABC News transcript of George Stephanopoulos' interview with 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.

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.

Conservatives, legal experts, journalists agree: Kagan is qualified.

• Reagan Solicitor General Charles Fried endorsed Kagan's nomination, describing her as “supremely intelligent,” “an effective, powerful person,” “and a very hardworking and serious person.” The Huffington Post reported on April 9 that Charles Fried -- solicitor general during the Reagan administration -- “said that he'd support a Kagan pick.” Fried reportedly said: “She is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically. ... She has quite a strong personality and a winning personality. I think she's an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person.” Fried reportedly added that Kagan was “not ideological” and advised Republicans to support her.

• Bush judicial nominee Estrada: Kagan is “a rigorous lawyer” who “should be confirmed” as the next Supreme Court justice. A May 10 New York Times article quoted Bush judicial nominee Miguel Estrada endorsing Kagan for Supreme Court justice:

“I would think that the president is looking for a bona fide left-of-center candidate with a progressive personal outlook who is a rigorous lawyer -- and he hit pay dirt,” said Miguel Estrada, who was nominated to a federal appeals court by President George W. Bush but was never confirmed. “She's highly capable and should be confirmed.”

• Fox's Bream: Kagan has a “fantastic resume.” During Fox News' breaking Supreme Court coverage, reporter Shannon Bream predicted that “no one will argue anything [against Kagan] but that she is a brilliant individual, she's got a fantastic resume, and she is known to be a consensus builder.”

• Fox's Napolitano: Kagan's “credentials are impeccable.” On the May 10 edition of Fox News Radio's Brian & The Judge, Fox News senior judicial analyst Andrew Napolitano said that Kagan's “credentials are impeccable.”

• Fox legal analyst Wiehl: Kagan “an absolute gem” with “excellent qualifications.” In a May 10 FoxNews.com opinion piece, legal analyst Lis Wiehl wrote that she found Kagan “to be an absolute gem” and added: “Some will question her lack of judicial experience, but that perceived prerequis[i]te is relatively new ... don't forget Justice Warren (of the Warren court) was never a judge before ascending to the Court. At Harvard, she was known as an avid listener, who could get to the heart of the matter with a measure of both logical analysis and compassion. Sound like excellent qualifications to me.”

• Ken Starr: Kagan is “very qualified.” On the May 12 edition of MSNBC Live, Ken Starr said that Kagan is “very qualified.”

Experts, conservatives, and journalists say judicial experience is not necessary to be a justice.

• NPR's Totenberg: The “big names in American jurisprudence [are] so often people who came to the court with no prior judicial experience.” On the May 12 broadcast of NPR's Morning Edition, Nina Totenberg said that the “big names in American jurisprudence [are] so often people who came to the court with no prior judicial experience.”

• Starr: Judicial experience is “certainly not necessary”; Kagan is “very qualified.” On the May 12 edition of MSNBC Live, Starr said that judicial experience is “certainly not necessary.”

• Napolitano explained that judicial experience is not necessary to be a justice. On the May 11 edition of Fox News' Fox & Friends, Napolitano explained that judicial experience is not necessary to be a justice.

• Scarborough, Zuckerman agree: Kagan being outside of judiciary is a “strength” and asset. On the May 10 edition of MSNBC's Morning Joe, co-host Joe Scarborough and guest Mort Zuckerman agreed that Kagan being outside of the judiciary is a “strength” and an asset.

MYTH: Kagan's praise for an Israeli Supreme Court justice is outside the mainstream

NY Post forwards conservative criticism of Kagan for reportedly calling Barak “my judicial hero.” From a June 28 New York Post article titled, “Eyes on Kagan's lib hero”:

Supreme Court nominee Elena Kagan came under fire from conservatives yesterday for calling super-liberal former Israeli Chief Justice Aharon Barak her “judicial hero.”

Sen. Lindsey Graham (R-SC), a member of the Senate Judiciary Committee, which opens confirmation hearings on Kagan today, said he' [sic] demand she explain her praise for Barak and his advocacy of an extreme activist judiciary.

“She'll have to convince me that all of this liberalism that she's lived with all her life can be put in a proper place and when she gets to be a judge she'll be left of center but within the mainstream of judging,” Graham said on “Fox News Sunday.”

Barak, who served as Israel's top justice from 1995 to 2006, has been controversial for his views that the judiciary should trump other branches of government.

Kagan, a former ex-Harvard Law School dean, introduced Barak there in 2006 as “my judicial hero,” and said he was a model for the US judiciary.

REALITY: Prominent conservatives have praised Barak as well

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. Scalia reportedly sang Barak's praises while presenting him an award. And former Reagan administration Solicitor General Charles Fried called Barak “superhuman.”

Fried praised Barak at same event in which Kagan praised Barak. At the same event in which Kagan praised Barak, 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.

Scalia reportedly praised Barak while presenting him with an award. In addition, 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 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.”