Kuhner attacks: Kagan is not a “serious nominee” but a “radical leftist” and a “partisan hack”

From Kuhner's May 14 Washington Times column:

President Obama is subverting the Supreme Court. His latest pick for the high court, Solicitor General Elena Kagan, is a radical leftist who would rubber-stamp Mr. Obama's transformative socialist agenda. She is not an independent, serious nominee, but an Obama ideological clone.

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This is why dictators and socialist autocrats often seek to control their nations' supreme courts: By imposing their will on the high court they can bend the nation's judiciary to submit to their rule. Dominating the high court removes a major institutional bulwark to consolidating state power. Hence, our Founding Fathers believed that Supreme Court justices should be individuals of the highest intelligence, character, moral integrity, political independence and fair-minded temperament. They are not -- and should never be -- partisan hacks.

Kuhner claims Kagan is “unfit to sit on the high court”; “She is neither an accomplished lawyer nor jurist”

From Kuhner's May 14 column:

Ms. Kagan is unfit to sit on the high court. She is an incompetent apparatchik, whose only purpose is to blindly advance Mr. Obama's revolutionary progressivism. She possesses no judicial experience; never once being a judge. Her litigation background is thin. She is neither an accomplished lawyer nor jurist. She is no Oliver Wendell Holmes.

In fact, Kagan's legal experience is comparable to conservative justices

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. William Rehnquist and Earl Warren -- two of the past four chief justices -- had never been judges before their original appointments as justices. Both were nominated by Republican presidents.

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.

Many conservatives, including legal experts, have endorsed Kagan as qualified. Many conservative legal experts and journalists have endorsed Kagan or praised her qualifications. Those conservatives include former Reagan Solicitor General Charles Fried, Bush judicial nominee Miguel Estrada, George H.W. Bush Solicitor General Ken Starr, conservative-leaning attorney Eugene Volokh, and former Bush Justice Department official and D.C. Circuit nominee Peter Keisler. In addition, Fox News legal analysts Judge Andrew Napolitano and Lis Wiehl, and Fox legal correspondent Shannon Bream have all praised her qualifications.

Kuhner falsely accuses Kagan of “turn[ing] a blind eye to plagiarism” by Harvard faculty

From Kuhner's column:

Moreover, Ms. Kagan was a corrupt administrator, who turned a blind eye to plagiarism by prominent Harvard faculty members. Confronted by overwhelming evidence that scholars Laurence Tribe and Charles Ogletree -- two leading liberals on campus -- had pulled word-for-word, direct material from other authors, she effectively gave them a slap on the wrist. If students had committed the same offense, they would have been rightly suspended or expelled. She oversaw the creation of a two-tier system: one set of rules for leftist academics, another one for the student body.

In fact, Kagan launched investigations into plagiarism allegations and they found no deliberate wrongdoing

Harvard Law Record: Internal investigation into Ogletree allegation found incident to be “an honest mistake.” In a September 2004 article, the Harvard Law Record reported that Kagan initiated an investigation after six paragraphs of Ogletree's book, All Deliberate Speed, were found to be identical to Yale Law Professor Jack Balkin's book, What Brown v. Board of Education Should Have Said. The article stated that Ogletree was “cleared of intentional plagiarism.” The article reported:

An internal law school investigation led by two former Harvard officials found the plagiarism incident to be an honest mistake. HLS Dean Elena Kagan appointed former Harvard University President Derek Box [sic] and former HLS Dean Robert Clark to investigate the matter. The investigation involved reviewing documents and interviewing research assistants in an attempt to single out how the error occurred. The investigation yielded a finding in agreement with Professor Ogletree's version of events.

Harvard spokesman: Kagan deemed the case “a serious scholarly transgression.” In a September 2004 article, The Boston Globe reported that former Harvard president Derek Bok -- who Kagan had asked to investigate the plagiarism allegations against Ogletree -- “characterized the borrowing as an accident” and quoted him saying, “There was no deliberate wrongdoing at all.” The Boston Globe also stated, “Based on their report, Kagan deemed the case 'a serious scholarly transgression,' according to [Harvard Law School spokesman Michael] Armini.”

From the article:

Ogletree said yesterday that Balkin and Kagan both received anonymous letters pointing out the use of Balkin's writing, and that Balkin called Ogletree to alert him. “He was distressed and said 'you should be aware of this.' I was shocked and immediately started to take a look at it,” he said.

Kagan asked former Harvard president Derek Bok and former law school dean Robert C. Clark to investigate. Based on their report, Kagan deemed the case “a serious scholarly transgression,” according to [Harvard Law School spokesman Michael] Armini.

Reached yesterday, however, Bok characterized the borrowing as an accident. “There was no deliberate wrongdoing at all,” he said.

NY Times: "[S]cholars say the increasing reliance of scholars upon research assistants in the quest to publish increases" errors. In a November 2004 article, The New York Times reported that "[s]ome scholars argued that Professor Ogletree's statement was a public humiliation more severe than any punishment that could be meted out to a student." It later added: “Along with the growing use of the Internet for research, some scholars say the increasing reliance of scholars upon research assistants in the quest to publish increases the risk of the sort of academic error made by Professor Ogletree.”

Following panel inquiry, Kagan, Summers “firmly convinced” Tribe's “error was the product of inadvertence rather than intentionality.” In an April 2005 article, The Boston Globe reported that "[then-Harvard president Lawrence] Summers and Kagan appointed former president Derek Bok, former dean of the Faculty of Arts and Sciences Jeremy Knowles, and Sidney Verba, a government professor and the university librarian, to conduct an inquiry." The article also stated that based on the findings of the inquiry, “Summers and Kagan said, 'The unattributed material relates more to matters of phrasing than to fundamental ideas. 'We are also firmly convinced that the error was the product of inadvertence rather than intentionality,' they continued. 'Nevertheless, we regard the error in question as a significant lapse in proper academic practice.' ”

Kuhner falsely claims Kagan “prevented” military recruiters from coming on campus

From Kuhner's column:

As dean, she prevented military recruiters from coming on campus. The reason: She opposed the “Don't ask, Don't tell” policy on homosexuals serving in the military. Her active opposition to military recruitment took place during a time of war. American troops were fighting -- and dying -- in Iraq and Afghanistan. They needed every soldier and official possible. Ms. Kagan's dogmatic liberalism trumped patriotism.

In fact, students had access to military recruiters during Kagan's entire tenure as dean

Harvard law students had access to military recruiters throughout Kagan's tenure as dean. Media Matters for America has repeatedly noted that Harvard students had access to military recruiters during Kagan's entire tenure as dean, and that Kagan consistently followed the law. Moreover, contrary to Kuhner's suggestion that Kagan's actions denied the troops needed soldiers, Harvard's data show that her actions did not adversely affect military recruitment.

Robert C. Clark 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.

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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.

Kuhner falsely claims Kagan's thesis shows she “celebrated” socialism

From Kuhner's column:

Ms. Kagan is not simply a traditional liberal. Like her master, Mr. Obama, she seeks to erect a European-style socialist state. She is anti-capitalist. Her undergraduate thesis discussed the glories of socialist agitation in America during the early part of the 20th century. She celebrated their goal of overthrowing the free-market system.

Kagan is not and was not a radical or socialist; her thesis explored historical questions about socialism

Kagan did not endorse socialism in her thesis. Kagan did not express personal support for socialism or radicalism in her 130-plus-page undergraduate senior thesis, which she wrote as a history student at Princeton in 1981. Rather, she explored the historical question of why socialism did not become a major political movement in the United States as it had elsewhere in the world. Specifically, Kagan discussed the rise and fall of socialism in New York City in the early 20th century, with a particular emphasis on why the movement collapsed.

Kagan's peers and thesis adviser are quoted extensively saying she is not a socialist. A May 15, 2009, Daily Princetonian article about Kagan's thesis quoted Kagan's peers saying there was “nothing dogmatic about her approach,” and that she's “very balanced in her judgments.” Kagan's thesis adviser, Princeton history professor Sean Wilentz, is also quoted as saying she's “the opposite of an ideologue.” Wilentz reiterated that position in a May 3 Daily Princetonian article about Kagan, saying she “is about the furthest thing from a socialist. Period.”:

Under [history professor Sean] Wilentz's direction, Kagan spent her senior year conducting research for her thesis on the history of the socialist movement, which was titled “To the Final Conflict: Socialism in New York City, 1900--1933.” Her thesis has been criticized by her opponents for revealing sympathies with the Socialist Party and became a source of controversy when she was a potential nominee for Associate Justice David Souter's seat on the Supreme Court last spring -- a position which instead went to Sonia Sotomayor '76 -- and when she was nominated for her current position of solicitor general in January 2009.

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But Wilentz defended Kagan against her critics, noting that she was adept at removing her personal beliefs from her academic research on labor and radical history. “Sympathy for the movement of people who were trying to better their lives isn't something to look down on,” he explained. “Studying something doesn't necessarily mean that you endorse it. It means you're into it. That's what historians do.”

Kagan said in her thesis acknowledgements that her brother's “involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.”

Yet even if a deeper understanding of the Socialist movement helped Kagan understand her own beliefs, she did not follow her brother's path.

“Elena Kagan is about the furthest thing from a socialist. Period. And always had been. Period,” Wilentz explained.

Kuhner misrepresents Kagan's views on regulating " 'ideas' in the marketplace"

Kuhner suggests Kagan wants to “unskew” the balance of ideologies in the marketplace. In his column, Kuhner said that in a 1996 Chicago Law Review article, Kagan “argues that the government has the 'right' to 'unskew' an 'overabundance of ideas' in the marketplace. In other words, if there is too much of an idea that the ruling liberal elite does not like, then speech can be 'redistributed' to ensure a more 'level playing field.' It echoes the left's long-held goal of smashing the dominance of conservatives on talk radio.”

Kagan did not advocate to “unskew” radio through government regulation

Kagan did not endorse regulating political opinions on talk radio or elsewhere. In her article, Kagan was arguing that the Supreme Court has usually based its decisions about government regulation of speech on the government's motives rather than on the consequences of the regulation.

In the specific portion of the article that Kuhner distorted, Kagan was not endorsing government attempts to regulate or “unskew” talk radio or any other medium. Rather, Kagan was discussing the 1992 case R.A.V. v. City of St. Paul, which invalidated an anti-hate speech law enacted in St. Paul, Minnesota. Kagan argued that the R.A.V. decision was based on St. Paul's “illegitimate, censorial motives” in passing the law -- not on the ways in which the law might have impermissibly “skewed” public debate.