Hannity Myth: Kagan OK with “telling Americans what to eat”

Hannity falsely claimed Kagan said it would be “acceptable” for government to “tell Americans what to eat.” On the July 1 edition of his Fox News program, Hannity falsely claimed that Kagan has “openly talked about the idea that the Supreme Court -- it would be acceptable to her that the government can write laws and legislation and it wouldn't be unconstitutional telling Americans what to eat.”

Kagan didn't claim “it wouldn't be unconstitutional telling Americans what to eat.” During Kagan's June 29 confirmation hearing, Sen. Tom Coburn (R-OK) asked whether a hypothetical law that required Americans to “eat three vegetables and three fruits every day” would “violate the Commerce Clause.” Kagan replied that it was a “dumb law,” but that “the question of whether it's a dumb law is different from whether the question -- of whether it's constitutional.” Kagan went on to state that “the Commerce Clause has been interpreted broadly. It's been interpreted to apply to regulation of any instruments or instrumentalities or channels of Congress. But it's also been applied to anything that would substantially affect interstate commerce. It has not been applied to noneconomic activities... And I think that that would be the question that the court would ask with respect to any case of this kind.” Kagan's views place her in the Supreme Court mainstream.

Hannity Myth: Kagan “supports a book ban”

Hannity falsely claimed Kagan “supports a book ban.” Hannity asserted that Kagan “supports a book ban, which was quite shocking to me, with the rationale that, well, they're not going to enforce it anyway.”

Kagan never claimed she “supports a book ban”; she specifically argued that federal law had never banned books and likely could not do so. In Kagan's September 2009 Supreme Court argument in Citizens United v. FEC, in which she represented the Obama administration as solicitor general, Kagan stated that if the government tried to ban political books published by corporations or unions under the then-existing campaign finance laws, “there would be quite good as-applied challenge” to the law -- in other words, 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." Conservatives have cropped and distorted these statements to claim that she said banning books would be constitutional.

Gingrich Myth: Dems would block nominee who didn't release docs

Gingrich: Republicans should not allow a vote without access to Kagan solicitor general memos, Dems “would have blocked the nomination” if such documents were withheld. On Hannity, Gingrich stated:

GINGRICH: Well, I think first of all, the Republicans should refuse to bring her up until the White House releases her memos on the health act. The fact is that the decision about whether or not the individual mandate is constitutional may be one of the biggest decisions the court faces in the next few years. She must have written articles and had opinions when she was the counsel during the period of drafting this legislation. They are refusing to release it. In fact, the Justice Department issued an utterly cynical and arrogant comment that they weren't quite sure what “Obama health legislation” referred to, and they have refused to release it. Now, liberal Democrats would have known exactly what to do. They would have blocked the nomination from moving forward until they got to see all the documents.

Bush White House refused to release Roberts' deputy solicitor general documents. The Washington Post reported in August 2005 that “government archivists working in concert with the Bush White House” had withheld “more than 2,100 memos and letters” by then-Supreme Court nominee John Roberts related to his work in the Reagan White House. The article further reported that “The Bush team ... is refusing to make public Roberts's documents for his tour as deputy solicitor general in George H.W. Bush's administration, an effort to keep confidential litigation deliberations in cases involving the federal government.” Politico reported on June 21 that “Gary Stern, general counsel of the National Archives and Record Administration, said the decision to withhold the [Kagan] documents was 'consistent' with how the agency approached the Roberts nomination and were withheld because of 'personal privacy' concerns.”

Gingrich Myth: Kagan “deeply opposed” to gun rights

Gingrich falsely claimed Kagan is “deeply opposed to the Second Amendment.” Gingrich stated:

GINGRICH: Second, I'd look at the National Rifle Association message today, which points out that she is deeply opposed to the Second Amendment. Well, I think that's an issue people ought to look at it carefully. And frankly, there are a lot of Democrats from rural America who ought to be looking at it very carefully, because if her position on the Second Amendment is as radically opposed as the National Rifle Association suggests, I suspect there are millions of Americans who would find her unacceptable.

Kagan's views on Second Amendment are within legal mainstream. As Media Matters has documented, Kagan's statement that Second Amendment rights are “not unlimited” concurs with the opinion of Supreme Court justice Antonin Scalia, and Kagan's 1987 statement that she was “not sympathetic” to the idea that the Second Amendment applied to individual rights was consistent with generally accepted constitutional scholarship at the time.

Gingrich Myth: Kagan made “fundamentally false” claims in abortion memo

Gingrich falsely suggested Kagan's “fundamentally false” memo contradicted medical group's “scientific position.” From Hannity:

GINGRICH: And finally, the maneuvering she engaged in on partial-birth abortion, in which she wrote the language that a supposedly private group then released as though it was the group's own language, is something somebody should be asking her about in detail. Because it's a remarkable effort to have her -- and she admits in her internal memos which were released that what she was doing was fundamentally false, and that in fact the original technical scientific position of the medical group on partial-birth abortion totally undercut the Clinton administration's position.

Kagan's edits to memos weren't “fundamentally false”; they were consistent with views of group. In 1996, the American College of Obstetricians and Gynecologists (ACOG) issued a draft statement on the issue of so-called “partial-birth abortion,” stating it “could identify no circumstances under which this procedure ... would be the only option,” but that the decision should be “based upon the woman's particular circumstances.” Kagan wrote in a memo that it would be a “disaster” if the ACOG issued this draft statement as its final statement. Kagan's files also include handwritten notes titled “suggested options,” which suggested a way to make clear that ACOG's position was that while an intact D&X procedure isn't the only procedure that could be used to terminate late-term pregnancies, in some cases it could be the best option and this decision should be left up to the doctor and patient, not politicians. ACOG's final statement retained its original assertion that it “could identify no circumstances under which this procedure ... would be the only option,” but added a statement suggested by Kagan that the procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision.”

Kagan: “There was no way I could have or would have intervened with ACOG to get it to change its medical views on the question.” During her confirmation hearing, Sen. Orrin Hatch (R-UT) asked Kagan about her memo in which she said it would be a “disaster” if ACOG issued their draft statement. Kagan explained that “the disaster would be, if the statement did not accurately reflect all of what ACOG thought. Both, I mean, that there were two parts of what ACOG thought. And, I recall generally, not with any great specificity, but recall generally talking to ACOG about that statement and about whether that statement was consistent with the views that we knew it had because they had stated them -- that it was both, not the only procedure, but also that it was in some circumstances the medically best procedure. And in their final statement that sentence, that it was not the only procedure, of course, remained because that is what they thought. But, we did have some discussions about clarifying the second aspect of what they also thought, which was that it was in some circumstances the medically most appropriate procedure.” After Hatch said that it “bother[ed]” him that Kagan “intervened in that particular area in that way,” Kagan said: “Senator Hatch, there was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians, to get it to change its medical views on the question. The only question that we were talking about was whether this statement that they were going to issue accurately reflected the views that they had expressed to the President, to the President's staff, to Congress, and to the American public.”