Fact Checking The Sunday Shows - May 16, 2010

May 17, 2010 10:07 am ET

On Sunday's political talk shows, Republicans echoed the fierce, false criticisms of Supreme Court nominee Elena Kagan that we heard throughout last week.  Newt Gingrich claimed that Kagan is "anti-military." Sens. Jeff Sessions (R-AL) and Jon Kyl (R-AZ) parroted Gingrich's lie that the military's prohibition on homosexuals began under President Clinton. And Sen. Mitch McConnell (R-KY) claimed that Kagan wants the government to ban books. Meanwhile, Gingrich advanced false narratives about health care reform and President Obama's attitude toward free enterprise, and Sen. McConnell attacked the Recovery Act.

Fox News Sunday

CLAIM: Newt Gingrich Claimed That Solicitor General Kagan Is "Anti-Military," Tried "To Block The American Military From Harvard Law School."

NEWT GINGRICH: I think the president should withdraw it. I think, the ver-you don't need a lot of hearings. The very fact that she led the effort which was repudiated unanimously by the Supreme Court to block the American military from Harvard Law School. We're in two wars, and I see no reason why you would appoint an anti-military Supreme Court justice, or why the Senate would confirm an anti-military Supreme Court justice.

FACT: Harvard's military recruitment policy had been in place since 1979.

Military Recruiters Have Accessed Students Through The Harvard Law School Veterans Association.  According to the New York Times: "Because of the military's policy against openly gay soldiers, the law school in 1979 barred military recruiters from using its Office of Career Services, the central clearinghouse through which employers from all over the world seek to recruit top-notch law students... Harvard reached its own accommodation in 1996. While the school did not allow military recruiters to use its main placement office, it did allow them on campus through the Harvard Law School Veterans Association, a student group. The recruiters met with students in the same classrooms, just under different sponsorship." [New York Times5/6/10]

FACT: The Solomon amendment revoked federal funding for schools who barred military recruiters.

2002: Solomon Amendment Expanded "To Say That All Federal Funds Could Be Revoked From An Entire University Even If Only One School, Like The Law School, Barred Recruiters." The New York Times reported:

...in the mid-1990s, Congress approved several versions of the Solomon Amendment - named for Representative Gerald B. H. Solomon, a conservative Republican from upstate New York - denying federal funds to schools that barred military recruiters.

The amendment forced many law schools to carve out a military exception to their recruitment policies, which said they would not help employers that discriminated in their hiring practices...

The atmosphere changed after the terrorist attacks of Sept. 11, 2001. In stepping up its recruitment efforts, the Bush administration expanded Solomon in 2002 to say that all federal funds could be revoked from an entire university even if only one school, like the law school, barred recruiters.

Christopher Cox, then a Republican congressman from California who supported the move, said at the time that it was a scandal that Harvard and other schools banished military recruiters "while cashing Uncle Sam's checks for billions of taxpayer dollars."

The change meant that Harvard faced a loss of $328 million in federal funds, or about 15 percent of its operating budget, almost none of which went to the law school. [New York Times5/6/10]

FACT: Then-Dean Kagan did not prevent military recruiters from speaking to students.

While Joining Other Schools In Recruitment Ban, Dean Kagan Still Allowed Military Recruiters Access To Students Through Veterans' Group.  The New York Times reported: "Ms. Kagan did join more than half the faculty in January 2004 in signing an amicus brief when a coalition of law schools challenged Solomon in an appeal to the United States Court of Appeals for the Third Circuit, in Philadelphia. In November 2004, the appeals court ruled, 2 to 1, that Solomon was unconstitutional, saying it required law schools 'to express a message that is incompatible with their educational objectives.' The day after the ruling, Ms. Kagan - and several other law school deans - barred military recruiters from their campuses. In Harvard's case, the recruiters were barred only from the main career office, while Ms. Kagan continued to allow them access to students through the student veterans' group." [New York Times5/6/10, emphasis added]

Former Harvard Law Dean: Kagan Followed School Policy Already In Place.  Former Harvard Law Dean Robert C. Clark wrote in the Wall Street Journal: "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." [Wall Street Journal5/11/10]

The Policy Did Not Hurt Recruitment Of Harvard Students.  As Media Matters for America has exclusively learned:  "The notion that military recruitment was adversely affected by Kagan's actions is contradicted by data Media Matters obtained from Harvard Law School's public information officer. The prohibition on Harvard Law's OCS working with military recruiters existed during the spring 2005 semester, meaning that it could only have affected 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."

Number of Harvard Law School graduates who entered the military, by graduating class:

2000 - 0
2001 -- 3
2002 -- 2
2003 -- 2
2004 -- 3

2005 -- 5
2006 -- 3
2007 -- 3
2008 -- 2
2009 -- 2

[Media Matters for America, 5/11/10]

FACT: Faced with funding threat and Supreme Court ruling, then-Dean Kagan changed the policy. 

Then-Dean Kagan "Lifted The Ban" After Pentagon Directive And Supreme Court Decision.  According to the New York Times: "The ban lasted only for the spring semester in 2005. The Pentagon told the university over the summer that it would withhold 'all possible funds' if the law school continued to bar recruiters from the main placement office. So, after consulting with other university officials, Ms. Kagan said, she lifted the ban. After doing so, she and 39 other Harvard law professors signed an amicus brief urging the Supreme Court to invalidate Solomon. So did the university. They all received a dose of reality in March 2006 when the court ruled, 8 to 0, against them. 'A military recruiter's mere presence on campus does not violate a law school's right to associate, regardless of how repugnant the law school considers the recruiter's message,' Chief Justice John G. Roberts Jr. wrote in the opinion. The ruling had little practical effect, since most universities, including Harvard, were in compliance. Despite the legal setback, Ms. Kagan continued to express her views, if less vocally." [New York Times5/6/10

Dean Kagan Expressed Regret At The Military's Continued Practice Of Discrimination.  In her letter to the Harvard Law School community regarding the lifting of the recruitment ban, then-Dean Kagan wrote:  "I have said before how much I regret making this exception to our antidiscrimination policy. I believe the military's discriminatory employment policy is deeply wrong - both unwise and unjust. And this wrong tears at the fabric of our own community by denying an opportunity to some of our students that other of our students have. The importance of the military to our society - and the great service that members of the military provide to all the rest of us - heightens, rather than excuses, this inequity. The Law School remains firmly committed to the principle of equal opportunity for all persons, without regard to sexual orientation. And I look forward to the time when all our students can pursue any career path they desire, including the path of devoting their professional lives to the defense of their country." [Law.Harvard.edu, 9/20/05, emphasis added]

FACT: Kagan made the distinction between service members and military policies.

Dean Kagan Distinguished "Between Those Who Serve Their Country And The Discriminatory Policy Under Which They Serve." The New York Times reported: "Capt. Kyle Scherer, 25, who graduated from [Harvard] law school last year and is now a military intelligence officer with the Army in Afghanistan, said by phone last month from Kabul that Ms. Kagan always supported students interested in the military. When recruiters came on campus, Ms. Kagan would send out e-mail messages, saying, in effect, 'we distinguish between those who serve their country and the discriminatory policy under which they serve.' Last year, when he was promoted from first lieutenant to captain in the Massachusetts Army National Guard, he invited her to the ceremony and gave her the honor of pinning his captain's bars on his shoulder." [New York Times5/6/10, emphasis added]

Dean Kagan: Don't Ask, Don't Tell Is "Terribly Wrong In Depriving Gay Men And Lesbians Of The Opportunity To Serve Their Country."  According to the New York Times: "in 2002, the law school, under Dean Robert Clark, relented and permitted the military recruiters in its placement office. Ms. Kagan became dean the next year and followed the same policy. But she also issued strong statements against 'don't ask, don't tell.' 'The military policy that we at the law school are overlooking is terribly wrong, terribly wrong in depriving gay men and lesbians of the opportunity to serve their country,' she said shortly after becoming dean at the law school's first reunion for its gay, lesbian and bisexual alumni. Later, as the issue intensified with protests on campus, she wrote in an e-mail message to students and faculty, 'I abhor the military's discriminatory recruitment policy.'" [New York Times5/6/10, emphasis added]

CLAIM: Newt Gingrich Claimed That "Entire Country" Opposed Health Care Reform Bill.

NEWT GINGRICH: If you can get $757 billion out of the Congress and no elected official has even read the bill, that's the behavior of a Chicago style machine. If you have the entire country rejecting health care, you lose Teddy Kennedy's seat over health care, and your attitude is, "Who cares? We're gonna run over you and we're gonna pass it."

FACT: Polls show the American people closely divided, but most Americans either support the Affordable Care Act or wish it went further.   

Gallup Poll: 49% To 40%, Americans Support Passage Of Health Care Reform.  According to a new USA Today/Gallup poll, when asked whether they thought the House passage of health care reform was a "good thing" or a "bad thing," 49% of Americans said "good thing," 40% said "bad thing," and 11% had "no opinion."  [Gallup.com, 3/23/10]

CNN Poll: 52% Of Americans Support Health Care Reform Or Wish It Went Further.  According to a CNN poll, when asked about their opinion of the health care reform package: 39% of Americans supported it, 13% opposed it because it wasn't liberal enough, 43% opposed it because it was too liberal, and 5% had no opinion.  Therefore, 52% of Americans either support health care reform or wish it went even further.  [CNN.com, 3/22/10]

March Kaiser Poll: Americans Support The Current Health Care Reform Package.  According to the Kaiser Family Foundation: "The March Kaiser Health Tracking Poll finds the public still divided on health reform legislation, with 46 percent of Americans backing the reform proposals on Capitol Hill, 42 percent opposing them and 12 percent saying they aren't sure. Six in 10 Americans say they have heard little or nothing about budget reconciliation. And many people continue to struggle with health costs, with nearly one in five saying cost increases have caused them or their employer to switch to a less comprehensive health plan." [Kaiser Family Foundation, March 2010]

CLAIM: Newt Gingrich Claimed That President Obama Intends To Decide How Much Americans Earn.

NEWT GINGRICH: Just listen to President Obama's language. He gets to decide who earns how much. He gets to decide what is too much... But he has said publicly, generically, y'know, some Americans earn too much. So he's now going to decide that?... So you want a politician to become the arbiter of your dreams?

FACT: President Obama's language praises free markets, connects profits with "providing a good product," and suggests that Wall Street's profits ahead of the mortgage crisis were not "fairly earned."

President Obama: Making Money For "Providing A Good Service" Is "Part Of The American Way," But Companies "That Operated Irresponsibly...Threaten The Whole Economy." In an April speech on Wall Street reform in Quincy, Illinois, President Obama said:

So [Wall Street] failed to consider that behind every dollar that they traded, all that leverage they were generating, acting like it was Monopoly money, there were real families out who were trying to finance a home, or pay for their child's college, or open a business, or save for retirement.  So what's working fine for them wasn't working for ordinary Americans.  And we've learned that clearly.  It doesn't work out fine for the country. It's got to change...

[W]e're not trying to push financial reform because we begrudge success that's fairly earned.  I mean, I do think at a certain point you've made enough money.  But part of the American way is you can just keep on making it if you're providing a good product or you're providing a good service.  We don't want people to stop fulfilling the core responsibilities of the financial system to help grow the economy. 

I've said this before.  I've said this on Wall Street just last week.  I believe in the power of the free market.  And I believe in a strong financial system.  And when it's working right, financial institutions, they help make possible families buying homes, and businesses growing, and new ideas taking flight... 

So there's nothing wrong with a financial system that helps the economy expand.  And there are a lot of good people in the financial industry who are doing things the right way.  And it's in our interest when those firms are strong and when they're healthy.

But some of these institutions that operated irresponsibly, they're not just threatening themselves -- they threaten the whole economy.  And they threaten your dreams, your prospects, everything that you worked so hard to build.

So we just want them to operate in a way that's fair and honest and in the open, so that we don't have to go through what we've already gone through... We want to make sure the financial system doesn't just work for Wall Street, but it works for Main Street, too. [Remarks by President Obama, 4/28/10, emphasis added]

Meet the Press

CLAIM: Sen. Mitch McConnell Asserted That Solicitor General Kagan Wants The Government To Have The Power To Ban Books.

SEN. MITCH McCONNELL: Solicitor Kagan's office in the initial hearing argued that it would be okay to ban books. And then when there was a rehearing, Solicitor Kagan herself, in her first, uh, Supreme Court argument, suggested that it might be okay to ban pamphlets. Uh, I think that's very troubling, and this whole area of her view of the First Amendment and political speech is something that oughta be explored by the Judiciary Committee and by the full Senate.

FACT: Solicitor General Kagan clearly stated in the reargument of the Citizens United case that any attempt to ban a book would run afoul of the law.

The Book Banning Argument Was Made By A Deputy Solicitor General Only Five Days After Kagan Was Confirmed As Solicitor General. In oral arguments before the Supreme Court on March 24, 2009, Deputy Solicitor General Malcolm Stewart said: "[The government's] position would be that the corporation could be required to use PAC funds rather than general treasury funds... If they didn't we could prohibit the publication of the book using the corporate treasury funds." Solicitor General Kagan was confirmed on March 19, 2009. [OYez.org, accessed 5/16/10; Senate.gov, accessed 5/16/10]

When Solicitor General Kagan Had An Opportunity To Reargue The Case Herself, She Responded To A Question On Book Banning By Saying, "The Government's Answer Has Changed" And That Any Attempt To Ban A Book Would Likely Be Rejected By The Courts. In oral arguments before the Supreme Court on September 9, 2009, Solicitor General Kagan and Justice Ginsburg had the following exchange:

JUSTICE GINSBERG: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographices? Last time the answer was, yes, Congress could, but it didn't. Is that-- is that still the government's answer?

SOLICITOR GENERAL KAGAN: The government's answer has changed, Justice Ginsburg. [Laughter] It is still true that...the only statute involved in this case does not apply to books or anything other than broadcast; [FEC regulation] 441b does, on its face, apply to other media... We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge [meaning that publishers would have a strong case to overturn a ban] to any attempt to apply 441b in that context. And I should say that the FEC has never applied 441b in that context. So for 60 years a book has never been an issue. [OYez.org, accessed 5/16/10]

CLAIM: Sen. Mitch McConnell Suggested That The Recovery Act Has Failed.

SEN. MITCH McCONNELL: What we know right now is there've been 3,000 [sic] private sector jobs lost when the President-- since the President came to office. We know they've added 260,000 government jobs. We know the only boom town in America is Washington because they're exploding government employment. Hiring new government workers by borrowing money from our grandchildren. That isn't likely to change by November. I hope the economy is beginning to come back, but it'd have to come back a long way for anybody to believe the stimulus plan, which was sold to us to keep unemployment at 8%, has worked.

FACT: 84% of 2010 job growth has come from private sector.

Economy Has Added 573,000 Jobs In 2010. According to CNN: "After nearly two years of job losses, the economy has now added jobs in five of the last six months. With upward revisions for both March and February, there has been a gain of 573,000 jobs since the start of the year. 'It clearly shows that this economic recovery can no longer be seen as a jobless one,' said Bart van Ark, chief economist of The Conference Board, a leading business research firm. 'Companies apparently are finding they can't squeeze out any more output without adding workers.'" [Money.CNN.com, 5/7/10]

483,000 Of 573,000 New Jobs Are In Private Sector. According to the Bureau of Labor Statistics: "Since December, nonfarm payroll employment has expanded by 573,000, with 483,000 jobs added in the private sector. The vast majority of job growth occurred during the last 2 months." Private sector growth has therefore provided 84% of the jobs added since the year began. [April Employment Situation Summary, accessed 5/17/10 via BLS.gov]

Private Sector Added 231,000 Jobs In April Alone. According to BusinessWeek: "Payrolls in the U.S. surged in April by the most in four years, led by gains in private employment that signal the economy is less dependent on government support. Private employers added 231,000 workers across the economy, from manufacturing to construction to services. General Electric Co. and Berkshire Hathaway Inc. are among companies adding staff in response to growing sales, indicating gains in consumer spending may spur more hiring." [BusinessWeek, 5/8/10]

FACT: Statistics show major economic trends turned around after enactment of the Recovery Act.

The Economy Has Been Growing For Three Straight Quarters.  Below is a graph prepared by the Speaker's office showing GDP growth per quarter:


[Office of the Speaker, 4/30/10]

Monthly Job Creation Numbers Show Clear Positive Trend Over Past 12 Months. Below is a graph prepared by the Speaker's office showing job gains/losses per month:

[Office of the Speaker, 5/7/10]

This Week

CLAIM: Sen. Jeff Sessions Implied That Solicitor General Kagan Broke The Law When She Complied With Appeals Court Decision On Harvard's Right To Bar Military Recruiters From The Office Of Career Services.

SEN. JEFF SESSIONS: This is no little-bitty matter, Jake. She would not let them come to the area that does the recruiting on the campus. They had to meet with some student veterans. This is not acceptable. It was a big error, it was a national debate. Finally we passed the Solomon amendment. They really didn't comply with it. Eventually she uh, uh, joined a brief to try to overturn the Solomon amendment, which was eventually rejected eight to nothing by the United States Supreme Court. And she was not in compliance with the law at various points in her tenure.

FACT: Solicitor General Kagan complied with the most current court decisions on the Solomon amendment throughout her tenure at Harvard Law School.

Then-Dean Kagan Reinstated Harvard Law School Policy On Military Recruiters For One Semester While Circuit Cout Decision Holding Solomon Amendment Unconstitutional Awaited Review By Supreme Court. According to the Harvard Crimson: "Harvard Law School Dean Elena Kagan announced in November that the military could not use the law school's recruiting resources until the Pentagon signed a pledge promising not to discriminate against gay and lesbian employees. The military, which discharges openly gay servicemen under its 'don't ask, don't tell' policy, refused to sign the pledge. Kagan's decision came after a panel of judges from the Philadelphia-based Third Circuit Court of Appeals voted 2-to-1 that the 1996 statute is unconstitutional because it violates law schools' First Amendment right to express their opposition to discrimination against gays and lesbians." [The Harvard Crimson, 1/21/05, emphasis added]

When Pentagon Told Harvard It Would Move To Strip Federal Funding As The Supreme Court Was Hearing The Solomon Amendment Case, Kagan Complied By Excepting Military Recruiters From Harvard Discrimination Policy. According to an email then-Dean Kagan wrote to colleagues in September 2005:

"In November 2004, the Court of Appeals for the Third Circuit issued a decision...holding that the Defense Department's policy violates First Amendment freedoms. The Supreme Court granted review of this decision; the Third Circuit's ruling is stayed pending the Supreme Court's decision, which is expected later this year... Although the Supreme Court's action meant that no injunction applied against the Department of Defense, I reinstated the application of our anti-discrimination policy to the military (after appropriate consultation with University officials) in the wake of the Third Circuit's decision; as a result, the military did not receive OCS assistance during our spring 2005 recruiting season. My hope in taking this action was that the Department would choose not to enforce its interpretation of the Solomon Amendment while the Third Circuit opinion stood. Over the summer, however, the Department of Defense notified the University that it would withhold all possible funds if the Law School continued to bar the military from receiving OCS services. As a result, I have decided (again, after appropriate consultation) that we should lift our ban and except the military from our general non-discrimination policy. This will mean that the military will receive OCS assistance during the fall 2005 recruiting season." [Law.Harvard.edu, 9/20/05, emphasis added]

CLAIM: Sen. Jon Kyl, Sen. Jeff Sessions And Newt Gingrich All Claimed That Prohibition On Military Service For Homosexuals Was Not A Military Policy, But Rather Originated With The Clinton White House.

SEN. JON KYL: Incidentally, Bob, [Solicitor General Kagan] described the policy as the 'discriminatory policy of the military,' but of course the Don't Ask, Don't Tell law was passed by Congress and signed into law by President Clinton. So uh, in, in my view it was inappropriate for her to describe it as a discriminatory policy of the military. [Face the Nation, 5/16/10]

SEN. JEFF SESSIONS: It was because of a deep personal belief [Solicitor General Kagan] had, that this policy-which was Congress and President Clinton's policy, not the military soldiers' policy, it was set by Congress. [This Week, 5/16/10]

NEWT GINGRICH: The American military didn't have a policy. The Congress of the United States and the Clinton administration she served in had a policy. And for her to single out the military was an extraordinarily myopic position, and if you read what they said at the time, it was consistently focused on the military and I just think that at a time when we have two wars, that's a very inappropriate behavior for somebody to end up as a Justice of the Supreme Court. [Fox News Sunday, 5/16/10]

FACT: Military policy has denied homosexuals the right to serve throughout American history.

The Continental Army Expelled A Soldier For "Homosexual Acts" In 1778. According to Human Rights Watch: "The first known case of a soldier being discharged from the U.S. military for homosexual acts took place in February 1778:  Lt. Gotthold Frederick Enslin was court-martialed after being discovered in bed with another soldier, and he was expelled from the Continental Army by order of Gen. Washington." [HRW.org, accessed 5/16/10]

Military Recruiting Policy Was Revised During World War II To Allow Rejection Of Recruits Based On Psychiatrist's Determination Of Sexual Preference. According to University of California at Davis professor Gregory Herek: "As the United States prepared for World War II, psychiatric screening became a part of the induction process and psychiatry's view of homosexuality as an indicator of psychopathology was introduced into the military. Instead of retaining its previous focus on homosexual behavior, which was classified as a criminal offense, the military shifted to eliminating homosexual persons, based on a medical rationale. In 1942, revised army mobilization regulations included for the first time a paragraph defining both the homosexual and 'normal' person and clarifying procedures for rejecting gay draftees." [Psychology.UCDavis.edu, accessed 5/16/10, emphasis original]

1981: Defense Department Codified Prohibition On Gays In The Military. According to UCD professor Gregory Herek: "In 1981, the DOD formulated a new policy which stated unequivocally that homosexuality is incompatible with military service (DOD Directive 1332.14, January 28, 1982, Part 1, Section H). According to a 1992 report by the Government Accounting Office (GAO), nearly 17,000 men and women were discharged under the category of homosexuality in the 1980s." [Psychology.UCDavis.edu, accessed 5/16/10, parentheses original]

1993: Congress Responded To President Clinton's Attempt To End Ban On Gays By Codifying "Long-Standing Defense Department Policy Stating That Homosexuals Are Not Eligible For Military Service." According to the Center for Military Readiness: "In 1993 members of Congress gave serious consideration to a proposal known as 'Don't Ask, Don't Tell,' which was announced by President Clinton on July 19, 1993.  The concept suggested that homosexuals could serve in the military as long as they didn't say they were homosexual... Instead of approving such a convoluted and legally-questionable concept, Congress chose to codify Defense Department regulations that were in place long before Bill Clinton took office. The resulting law, identified as Section 654, Title 10, continued the long-standing Defense Department policy stating that homosexuals are not eligible for military service. Following extensive debate in both Houses, the legislation passed with overwhelming, veto-proof bipartisan majority votes. In writing this law, members wisely chose statutory language almost identical to the 1981 Defense Department Directives regarding homosexual conduct, which stated that 'homosexuality is incompatible with military service.'  Those regulations had already been challenged and upheld as constitutional by the federal courts." [CMRLink.org, 8/22/08, italics original, emphasis added]