Sunday talk show hosts allow GOP attacks on Kagan to go unchallenged

CNN's Crowley allows Cornyn to attack Kagan as having “expressed hostility to Second Amendment rights” and claimed Kagan “refus[ed] to allow military recruiters to come to Harvard.” On the June 27 edition of CNN's State of the Union, host Candy Crowley failed to challenge Sen John Cornyn (R-TX) as he promoted misleading attacks on Elena Kagan. Cornyn claimed Kagan “has expressed hostility to Second Amendment rights, saying she wasn't sympathetic to arguments of gun owners.” Cornyn also claimed she “has been very much involved” in “hot-button issues of the day.” Cornyn cited her involvement in the military recruiting at Harvard Law School, claiming she “refus[ed] to allow military recruiters to come to Harvard, notwithstanding the fact that they received federal dollars and it violated the congressionally passed Soloman Amendment.” Crowley then asked Cornyn if “the President could have nominated anybody that you would have liked” but did not challenge any of his earlier attacks.

Fox's Wallace does not challenge Graham's misleading remarks on military recruitment at Harvardand Kagan's past praise of Judge Barak. On Fox Broadcasting Company's Fox News Sunday, host Chris Wallace did not challenge any of Sen. Lindsey Graham's (R-SC) attacks on Elena Kagan. Graham said “the one thing that bugs me about her is when she embraces Judge Barak from Israel...as her hero, that to me is embracing liberal activism, not mainstream liberalism.” Graham indicated that if Kagan did not explain her past praise of Barak to his satisfaction, he may be inclined to vote against her confirmation. Graham also pushed the military recruitment attack, claiming “this policy at Harvard about not allowing military recruiters to come to law school is going to be problematic for most Americans.” Wallace did not challenge either of these attacks.

NBC's Gregory does not challenge McCain's false claim that Kagan had “zealous opposition to military recruiters, to the presence of the military” at Harvard, instead asks, “Is that disqualifying?” On NBC's Meet the Press, host David Gregory did not challenge Sen. John McCain's (R-AZ) misleading statement about Kagan and military recruitment. McCain said “I'll tell you one thing I am disturbed about, was her obvious steadfast and even zealous opposition to military recruiters, to the presence of military on the campus of the most prestigious university, in the view of many, in America.” Instead of challenging this statement, Gregory asked “Is that disqualifying?”

In fact, Kagan did not ban military recruiters from Harvard Law campus

Harvard students had access to military recruiters during Kagan's entire tenure as dean. Contrary to the claim that Kagan “banned” military recruiters from Harvard Law School, throughout Kagan's tenure as dean, Harvard law students had access to military recruiters -- either through Harvard Law's Office of Career Services (OCS) or through the Harvard Law School Veterans Association.

Kagan became dean of Harvard Law in June 2003 and continued the school's policy of granting the military a special exception to its nondiscrimination policy so that the military could work with the law school's OCS. In accordance with the nondiscrimination policy, Kagan barred 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.

Former Harvard Law dean debunked claim that Kagan banned military recruiters. In a May 11 Wall Street Journal op-ed, Robert C. Clark -- Kagan's predecessor as dean of Harvard Law School -- explained:

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 2002, however, the Air Force took a hard line with Harvard and argued that this pattern did not provide strictly equal access for military recruiters and thus violated the 1996 Solomon Amendment, which denies certain federal funds to an education institution that “prohibits or in effect prevent” military recruiting. It credibly threatened to bring an end to federal funding of all research at the university.

[...]

After much deliberation with the president of Harvard and other university officials, we decided to make an exception for the military to the school's nondiscrimination policy. At the same time, I, along with many faculty and students, publicly stated our opposition to the military's policy, which we considered both unwise and unjust, even as we explicitly affirmed our profound gratitude to the military. Virtually all law schools affiliated with large universities did the same.

When Ms. Kagan became dean in July of 2003, she upheld this newer policy. Military recruiters used OCS services, but at the beginning of each interviewing season she wrote a public memorandum explaining the exception to the school's nondiscrimination policy, stating her objection to “don't ask, don't tell,” and expressing her strong view that military service is a noble and socially valuable career path that should be encouraged and open to all of our graduates.

Harvard's data show that Kagan's actions did not hurt military recruitment. Data Media Matters for America obtained from Harvard Law School's public information officer shows that military recruitment does not appear to have been hurt by Kagan's actions. The prohibition on Harvard Law's (OCS) working with military recruiters existed during the spring 2005 semester, meaning that it could have affected only 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.

Kagan's support for the military is well established. Responding to a January 30, 2009, Washington Times op-ed by Flagg Youngblood labeling Kagan an “anti-military zealot,” three 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." The veterans also stated that their support for military recruiting at the school “has not diminished our appreciation for Miss Kagan's embrace of veterans on campus.” The Harvard Law Record later reported on the veterans' letter, quoting Iraq veteran Geoff Orazem as saying, “Kagan has great respect for the military.” At Volokh Conspiracy, a group blog run by mostly conservative 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.” The Hill reported on May 13 that Sen. Scott Brown (R-MA) stated after meeting with Kagan and discussing the military recruiter issue: "[I]t was very clear to me after we spoke about it at length that she is supportive of the men and women who are fighting to protect us and very supportive of the military as a whole." Brown added, “I do not feel that her judicial philosophy will be hurting men and women who are serving.”

Kagan's memo on gun law was not controversial

Report: In 1987 memo, Kagan wrote she was “not sympathetic” to argument that Second Amendment protected civilian gun rights. 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 2008, Stevens and three other justices agreed that the Second Amendment did not protect gun rights for non-military 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 non-military purposes. Kagan wrote the memo Cornyn was citing in 1987. 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.

Supreme Court justices have often used the term “sympathetic” to refer to their agreement with legal arguments. As Media Matters has noted, Supreme Court justices often use the term “sympathetic” to refer to agreement with legal arguments. The term “not sypmathetic, in the legal context, does not connote personal political views.

Like Kagan, conservatives have praised Israeli Judge Barak

Scalia presented Barak with an award. The American Association of Jewish Lawyers and Jurists (AAJLJ) honored Barak with its Pursuit of Justice Award in March 2007 at its International Conference, hosted by American University's Washington College of Law. A program for the event said Scalia was scheduled to present the award to Barak during a reception at the U.S. Supreme Court; the Spring 2008 issue of Justice Magazine, a publication by the International Association of Jewish Lawyers and Jurists (IAJLJ) called Scalia's presentation the “highlight of the conference.”

The Jewish Daily Forward described Scalia's remarks as “singing Barak's praises.” In a July 10, 2007, profile in the Jewish Daily Forward, Benjamin Soskis wrote that during the reception, Scalia was “singing Barak's praises,” even as he “addressed the other obvious disparity between himself and the honoree.” From the article:

With the court's two Jewish justices looking on (Stephen Breyer and Ruth Bader Ginsburg, also two of the most enthusiastic champions of foreign court decisions as juridical resources), Scalia offered a moving tribute to his “good friend” Barak. No other living jurist has had a greater impact on his own country's legal system -- and perhaps on legal systems throughout the world -- Scalia argued. He went on to celebrate his fruitful and long-standing relationship with the Israeli judge, and to affirm a profound respect for the man, one that trumped their fundamental philosophical, legal and constitutional disagreements.

Forward: Scalia described Barak as a “judicial pioneer.” Soskis also reported in the article that while Scalia noted differences between his and Barak's judicial philosophies, he “exposed a crucial condition of their intellectual camaraderie: the recognition that the substantial differences of the constitutional systems in which they operated necessarily produced divergent judicial philosophies.” From the article:

In his celebration of Barak, Scalia had described him as a judicial pioneer, stressing that the Israeli judge had struggled with questions concerning the nature and limits of his responsibilities as a jurist that Scalia, as a resident of a more mature constitutional system, had not had to confront. With this pronouncement, Scalia exposed a crucial condition of their intellectual camaraderie: the recognition that the substantial differences of the constitutional systems in which they operated necessarily produced divergent judicial philosophies. This insinuation angered Boston University's Lahav. At the ceremony's conclusion, she approached Barak, her former teacher, to complain that Scalia had celebrated his friend only to sequester him within the exceptionality of the Israeli legal system. Why didn't you confront Scalia, she asked, and let him know that he, too, could follow your example, championing vulnerable rights and liberties, if he only willed to do so?

IAJLJ president: Holocaust survivor Barak's life exemplifies “a life filled with hope for a Jewish society based on freedom, justice and human dignity.” According to Justice Magazine, at the same conference at which Scalia presented Barak with an award, IAJLJ president Alex Hertman said:

“The life of Aharon Barak, a child survivor of the Holocaust, symbolizes the victory of the Jewish people over those who tried to destroy them,” said IAJLJ President Alex Hertman. “His life exemplifies a victory of values over violence, a victory of excellence over mediocrity, and a life filled with hope for a Jewish society based on freedom, justice and human dignity as opposed to a society living by the sword.”

Fried tied Dworkin's “picture...of a judge, superman, a mythical character, whom he calls Hercules” to Barak. At a 2002 event sponsored by the Harvard Law Review, Fried spoke immediately after Barak and said:

FRIED: The philosopher Ronald Dworkin -- in his, I think, chef-d'oeuvre, 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. (42:45 mark of the C-SPAN video)