Kagan urged Clinton to support a ban on cloning human beings

Blackwell falsely claims that Kagan “support[s] ... cloning human beings.” From a June 21 post by Ken Blackwell on Andrew Breitbart's BigGovernment.com:

Most interesting, perhaps, is Kagan's support for cloning human beings. Clinton Library documents show that she opposed any effort by Congress to prevent human beings from being cloned specifically to create embryos that would be experimented upon, then killed. Gallup recently reported that 88% of Americans oppose cloning human beings. Kagan does not.

Kagan actually recommended that Clinton “submit legislation banning human cloning.” In a May 29, 1997, memo written when Kagan was deputy assistant to the president for domestic policy, Kagan and White House science and technology adviser Jack Gibbons stated:

We recommend: (1) that you support domestic legislation banning human cloning, and that you announce specific legislation at the top of your June 10th press conference; and (2) that the U.S. support the gist of France's proposed cloning paragraph while insisting on critical modifications.

Kagan also recommended that such legislation allow stem-cell research to continue. In the same memo, Kagan recommended that the legislation not be written in a way that would ban stem-cell research, which uses cloned DNA. The memo said:

We recommend that you embrace NBAC's [National Bioethics Advisory Commission] proposal to establish a narrowly crafted time-limited legislative moratorium. Legislation is the only way to establish a comprehensive, enforceable prohibition .on cloning entire human beings in all publicly and privately funded research and clinical activities. If carefully written, the ban will not preclude important research.

President Clinton's NBAC supported a ban on cloning that would not ban stem-cell research. According to a fact sheet in Kagan's files, the NBAC stated that “it is morally unacceptable for anyone to attempt to create a child with the technology used to create Dolly the sheep.” The fact sheet further stated that "[t]he Commission also found that the new technology may have many agricultural and medical benefits" and that “cloning of DNA, cells, tissues, and non-human animals” for research purposes is “not ethically problematic.”

American Society for Reproductive Medicine also supported ban on cloning humans but opposed bill that would shut down stem-cell research. The American Society for Reproductive Medicine and the Federation of American Societies for Experimental Biology opposed a cloning ban that did not contain a research exception.

Ban on cloning of DNA for stem-cell research purposes did not garner a majority in a Republican-controlled Senate. In 1998, the Republican-controlled Senate held a cloture vote on a bill that would have banned human cloning and made no exception for cloning of DNA for research purposes. The vote to move the bill forward failed, with 42 senators voting to move ahead with the bill and 54 senators, including 12 Republicans, voting against moving forward.

Kagan was making a policy recommendation, not a legal recommendation. Blackwell points to no evidence that Kagan was making a legal judgment about cloning. Her statements were focused on the policy and political implications of the various proposals regarding human cloning.

Blackwell falsely claims Kagan said government could ban books

Blackwell falsely claims that Kagan said government could ban books. From a section of Blackwell's post discussing the Supreme Court case of Citizens United v. FEC:

We also know, from her record as Solicitor General in the Obama administration, that there are circumstances in which Elena Kagan would vote to ban political books. President Obama famously attacked the Supreme Court-while its members sat robed before him-during his first State of the Union Address last January. He attacked the Court for its ruling in the case of Citizens United v. Federal Election Commission. The President said, incorrectly, that that ruling permitted corporations to contribute directly to political campaigns and would allow foreigners to come in and influence our elections.

What the Citizens United case did say was that unions and companies, and non-profit associations, do not lose their First Amendment rights to speak on public issues just because an election is less than sixty days away. In fact, the Supreme Court found, during election campaigns was the very time when political communication among citizens was most important.

At issue was a film produced by Citizens United that attacked the public record of Hillary Clinton. The McCain-Feingold law says that such communications are unlawful contributions.

Kagan was asked if, instead of making a movie, Citizens United had published a book criticizing Hillary Clinton and it hit the stands less than sixty days before an election? Could the government ban that book? Yes, she said, representing the Obama administration.

The argument that campaign books paid for by corporate funds could be banned was actually made by a deputy solicitor general five days after Kagan was confirmed. A group run by political activist David Bossie was the plaintiff in Citizens United v. FEC, a Supreme Court case dealing with the constitutionality of the Federal Election Commission's decision that Citizens United -- a non-profit corporation -- could not air a movie advocating against Hillary Clinton's presidential candidacy if that movie was paid for by its corporate funds. On March 24, 2009 -- five days after the Senate confirmed Kagan as solicitor general -- the Supreme Court heard oral arguments in the case. Deputy Solicitor General Malcolm Stewart stated during the oral argument that, in addition to a movie, the federal government could “prohibit the publication of [a] book using the corporate treasury funds” if that book ended by saying “vote for X.”

When the case was reargued, Kagan specifically stated that federal law had never banned books and likely could not do so. In June 2009, the Supreme Court decided to postpone its decision in Citizens United, asked the parties to address additional issues, and ordered the lawyers to reargue the case in September 2009. Kagan argued on behalf of the federal government. She stated that if the government tried to ban books under campaign finance laws, “there would be quite good as-applied challenge” to the law, meaning that the corporation attempting to publish the book would have a good constitutional case that the book couldn't be banned. Kagan later added: "[W]hat we're saying is that there has never been an enforcement action for books. Nobody has ever suggested -- nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that."