Fact Checking The Sunday Shows — June 27, 2010

June 28, 2010 9:44 am ET

On Sunday's political talk shows, Republicans were hard at work managing expectations for this week's Senate Judiciary Committee hearings on the Elena Kagan nomination. Senators Cornyn (TX), Graham (SC) and McCain (AZ) each pushed the false notion that Kagan banned military recruiters from Harvard Law School while she was Dean there. A number of Kagan's former students have defended her against such charges, and the fact is recruiters had access to the Harvard campus and Harvard Law students throughout Kagan's tenure. Elsewhere, Sen. Graham raised the red herring of Kagan's praise for an Israeli judge as a reason to oppose her nomination, and Sen. Cornyn reiterated the tired Republican lie that clean energy legislation will kill jobs.

CLAIM: Sen. McCain Falsely Claimed That Solicitor General Kagan Showed "Zealous Opposition To Military Recruiters, To The Presence Of Military On The Campus" At Harvard

SEN. MCCAIN: 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, that's disturbing to me. [Meet the Press, 6/27/10]

CLAIM: Sen. Graham Falsely Claimed That Solicitor General Kagan Didn't Allow "Military Recruiters To Come To The Law School" While Dean Of Harvard Law

SEN. GRAHAM: And this policy at Harvard about not allowing military recruiters to come to the law school is gonna be problematic for most Americans. She's gonna have to explain that. But given everything that I know today, she is well qualified but she has a lot to answer for. [Fox News Sunday, 6/27/10]

CLAIM: Sen. Cornyn Falsely Claimed That Solicitor General Kagan Prevented Military Recruiters From Coming To Harvard

SEN. CORNYN: We know that uh, on a number of areas of the hot-button issues of the day, she's been very much involved, in refusing military recruiters to come to Harvard, notwithstanding the fact that they received federal dollars and it violated the congressionally-passed Solomon amendment. [State of the Union, 6/27/10]

FACT: Military Recruiters Were Welcome At The Law School Throughout Then-Dean Kagan's Tenure

The Military Recruited On The Harvard Law School Campus, Including In Classrooms, Throughout Solicitor General Kagan's Tenure There. According to the National Journal:

Kagan did not "ban" military recruiters from the campus, as many critics have erroneously said. Before, during, and after her deanship in 2003-2008, the Harvard Law School Veterans Association provided military recruiters access to classrooms and other campus space for recruiting events, with the law school's approval.

Kagan did for a time deny the assistance of the law school's Office of Career Services to recruiters for the military and other interested employers (if any) that discriminate against gay people. That office helps employers schedule interviews and recruit students. It is not a place where they can meet. Most private employers interview students in nearby hotels.

The law school's policy did not prevent the military from recruiting law students who were interested in enlisting. Indeed, 18 went into the military during her tenure.


However inconvenient her policy may have been for some, Kagan never sought to prevent military recruiters from using classrooms or other campus space to meet students.

[National Journal, 5/15/10, emphasis added]

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: Former Students Say Solicitor General Kagan Has Demonstrated Great Respect For The Military

In Letter To Judiciary Committee, Student Veterans Praised Then-Dean Kagan's "Embrace Of Veterans On Campus" And Rejected "Anti-Military Zealot" Label. In a letter to the Washington Times and the Senate Judiciary Committee, Erik Swabb, Geoff Orazem and Hagan Scotten wrote:

As Iraq War veterans who currently attend Harvard Law School, we believe that Flagg Youngblood's referring to Dean Elena Kagan as an "anti-military zealot" is a gross mischaracterization. Like Mr. Youngblood, we support military recruiting on campus and hope that the Obama administration vigorously defends the Solomon Amendment.

However, this position has not diminished our appreciation for Miss Kagan's embrace of veterans on campus. During her time as dean, she has created an environment that is highly supportive of students who have served in the military. For the past three years, Miss Kagan has hosted a Veterans Day dinner for all former service members and spouses. She pioneered this event on her own initiative, which has meant a great deal to students.

Indeed, every year, Miss Kagan makes a point to mention the  number of veterans in the first-year class during her welcome address to new students. Under her leadership, Harvard Law School has also gone out of its way to highlight our military service, publishing numerous articles on the school Web site and in alumni newsletters. These are not action of an "anti-military zealot," and great care should be exercised before someone is labeled as such.

[Judiciary.Senate.gov, 2/6/09, citations removed for clarity]

Three Iraq Veterans And Kagan-Era Harvard Law Alumni Wrote Letter On Her Behalf To Judiciary Committee. According to the National Journal: "But Kagan's restrictions on military recruiting were both inherited and largely symbolic. They do not appear to have impeded recruiters' access to interested students. She held annual Veterans Day dinners at her home for students who had served. And three Iraq War veterans who were students on her watch praised 'Dean Kagan's strong record of welcoming and honoring veterans on campus' in a letter to the Senate Judiciary Committee." [National Journal, 5/15/10]

Marine Corps Captain And Kagan Student Robert Merrill: Kagan "Treated The Veterans At Harvard Like VIPs." In an op-ed in the Washington Post, Harvard Law School alumnus Capt. Robert Merrill, USMC, wrote:

Around the time that Kagan sent the first of several e-mails criticizing "don't ask, don't tell," she hosted a Veterans Day dinner for the few student-veterans attending Harvard Law. That was the first time I met Kagan. There was no agenda for the dinner, as best as I could tell, other than to thank us for our service. I don't believe "don't ask, don't tell" ever came up. Either because of her charm or the quality of the food, I became one of her admirers.

In my opinion, Kagan's positions never affected the services' ability to recruit at Harvard. Behind the scenes, the dean ensured that our tiny HLS Veterans Association never lacked for funds or access to facilities. Recruiters simply could not use the school's Office of Career Services. Does this demonstrate an "activist" streak, as some have proclaimed? I don't think so. The school's policy against discrimination was akin to black-letter law. If anything, Kagan was an activist in ensuring that military recruiters had viable access to students and facilities despite the official ban. A Boston-area recruiter later told me that the biggest hurdle he faced recruiting at Harvard Law was trying to answer the students' strangely intellectual questions.

Kagan's Veterans Day dinners became a tradition. During my final year at Harvard, she treated the veterans to dinner at a restaurant in Cambridge. (Military service has its perks.) Again, there was no agenda other than to thank us for our service and to ask about our military experiences. Over wine and dinner, Kagan listened attentively to our war stories. I later told her that her blunt style of leadership would have served her well in the Marines. I took to calling her "Colonel Kagan" whenever we crossed paths on campus.

During nine years of service in the Marine Corps, I have received a fair number of thanks from friends and strangers alike. I received perhaps the most thoughtful thanks of all just before graduating from Harvard Law School: The supposedly "anti-military" Elena Kagan sent me a handwritten note thanking me for my military service and wishing me luck in my new life as a judge advocate.

If Elena Kagan is "anti-military," she certainly didn't show it. She treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association. She was decidedly against "don't ask, don't tell," but that never affected her treatment of those who had served.

[Washington Post, 5/21/10, emphasis added]

Washington Post: Kagan-Era Harvard Law Student Veterans Say Her Feelings On Discriminatory Recruiting Policy Did Not Affect "Her Direct Interactions With Them." According to the Washington Post: "Amid the tangle of political half-truths, eight Harvard law graduates interviewed for this article, all of whom were veterans or preparing for active duty at the time, offer a third view. They say that Kagan separated her intense opposition to the military's 'don't ask, don't tell' policy from her direct interactions with them. All but one have never before described these matters publicly. Most are now military lawyers or in other government roles and were forbidden by their employers to discuss a Supreme Court nominee except on the condition of anonymity. 'I didn't think she demonstrated any bias by doing what the university required her to do' regarding the recruiters, said Lt. Col. Robert Bracknell, who was 35, already a lawyer and had been in the Marines for 15 years when he spent 2005-06 at the law school earning a master's degree. 'I found her to be very . . . interested in what I had to say.'" [Washington Post, 5/28/10]

Fox News Sunday

CLAIM: Sen. Graham Claimed Solicitor General Kagan's Praise For Israeli Judge Aharon Barak Might Be Reason To Vote Against Confirmation

SEN. GRAHAM: "Extraordinary Circumstance" is the new test of whether a filibuster should be had. I haven't seen any extraordinary circumstances that would justify a filibuster yet. But the one thing that bugs me about her is that when she embraces Judge Barak from Israel, and the way he thinks and the way he writes, as her hero, that to me is embracing liberal activism, not mainstream liberalism. And she's gonna have to explain that to me and other members of the committee... It'll be a problem for her getting my vote, and it'll be a problem for a lot of moderate Democrats.

FACT: Conservatives Including Justice Antonin Scalia Have Praised Judge Barak In Much The Same Way

Justice Scalia Called Judge Barak A "Judicial Pioneer" In Introducing Him At An Award Ceremony In 2007. According to the New York Times: "On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak 'may be the worst judge on the planet, the most activist,' and argued that Ms. Kagan's admiration for him is 'disqualifying in and of itself.' Hogwash, say Ms. Kagan's backers, noting that Judge Barak has also drawn praise from American conservatives, including Justice Antonin Scalia of the Supreme Court, who introduced Judge Barak at an award ceremony in 2007. The Jewish Daily Forward reported that Justice Scalia described Judge Barak as a 'judicial pioneer' and said he has 'profound respect for the man.'" [New York Times, 6/24/10]

Reagan's Solicitor General Charles Fried Praised Judge Barak As "A Living Myth." At a 2002 lecture sponsored by the Harvard Law Review, Charles Fried spoke immediately following Judge Barak, saying: "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." [C-SPAN, 11/11/02 at 42:45]

State of the Union

CLAIM: Sen. Cornyn Falsely Claimed Clean Energy Legislation Would Kill Jobs

SEN. CORNYN: They haven't been hiring people because of the political turmoil, wondering what's gonna happen to 'em next. More spending, more debt? More burdens like cap-and-trade? Cap-and-tax we call it in Texas, because of the job-killing impact of those policies.

FACT: The Democrats' Market-Based Clean Energy Legislation Would Help The Economy...

Clean Energy Legislation Would Boost GDP By Up To $111 Billion.  According to the University of California-Berkeley: "Comprehensive clean energy and climate protection legislation, like the American Clean Energy and Security Act (ACES) that was passed by the House of Representatives in June, would strengthen the U.S. economy by establishing pollution limits and incentives that together will drive large-scale investments in clean energy and energy efficiency...New analysis by the University of California shows conclusively that climate policy will strengthen the U.S. economy as a whole. Full adoption of the ACES package of pollution reduction and energy efficiency measures would ... boost GDP by $39 billion-$111 billion. These economic gains are over and above the growth the U.S. would see in the absence of such a bill." [UC Berkeley, accessed 1/22/10]

Clean Energy Legislation Would Boost Household Income By Nearly $1,200 Per Year. According to the University of California-Berkeley: "Full adoption of the ACES package of pollution reduction and energy efficiency measures would create between 918,000 and 1.9 million new jobs, increase annual household income by $487-$1,175 per year... These economic gains are over and above the growth the U.S. would see in the absence of such a bill." [UC Berkeley, accessed 1/22/10]

...Create Millions Of American Jobs...

The American Power Act Would Create 540,000 American Jobs Per Year Until 2030. In its analysis of the American Power Act (APA), the ClimateWorks Foundation wrote: "APA would retain 110,000 jobs over the period 2012-2020 (150,000 over the period 2012-2030) across industrial sectors of the economy due to energy investments that drive construction and manufacturing job growth. On balance, national employment would be 440,000 higher on average compared to BAU from 2012-2020 and 540,000 higher over the period 2012-2030." [ClimateWorks Foundation, 6/15/10, emphasis added, parentheses original]

Investment In Clean Energy Technology Would Create Up To 1.9 Million American Jobs. According to the University of California-Berkeley, "new analysis by the University of California shows conclusively that climate policy will strengthen the U.S. economy as a whole. Full adoption of the ACES package of pollution reduction and energy efficiency measures would create between 918,000 and 1.9 million new jobs." [UC Berkeley, accessed 1/22/10]

Investment In Clean Energy Technology Creates FOUR TIMES As Many Jobs As An Investment In Oil & Gas.  According to the Center for American Progress, "spending $1 million on energy efficiency and renewable energy produces a much larger expansion of employment than spending the same amount on fossil fuels or nuclear energy. Among fossil fuels, job creation in coal is about 32 percent greater than that for oil and natural gas. The employment creation for energy efficiency-retrofitting and mass transit-is 2.5 times to four times larger than that for oil and natural gas. With renewable energy, the job creation ranges between 2.5 times to three times more than that for oil and gas." [Center for American Progress, The Economic Benefits of Investing in Clean Energy6/17/09]

...And Cost Only Pennies A Day

Peterson Institute: American Power Act Would Cause "Between A $136 Increase And A $35 Decrease" In Annual Energy Costs Per Household. In its analysis of the American Power Act, the Peterson Institute for International Economics wrote: "In our analysis, households see somewhere between a $136 increase and a $35 dollar decrease in annual energy expenditures, depending on future improvements in vehicle efficiency. The American Power Act also returns much of the revenue raised through the sale of pollution permits to households, with further mitigates the impact of higher energy prices." [Peterson Institute, May 2010]

Reuters: "Climate Legislation Moving Through Congress Would Have Only A Modest Impact On Consumers." According to Reuters: "A new U.S. government study on Tuesday adds to a growing list of experts concluding that climate legislation moving through Congress would have only a modest impact on consumers, adding around $100 to household costs in 2020. Under the climate legislation passed by the House of Representatives in June, electricity, heating oil and other bills for average families will rise $134 in 2020 and $339 in 2030, according to the Energy Information Administration, the country's top energy forecaster." [Reuters8/5/09]

EIA: Clean Energy Legislation Would Cost Only $0.23 Per Day. According to a House Energy and Commerce Committee factsheet of the Energy Information Administration's analysis of the American Clean Energy and Security Act: "The U.S. Energy Information Administration (EIA) has completed an analysis of the American Clean Energy and Security Act (H.R. 2454), as passed by the U.S. House of Representatives... The overall impact on the average household, including the benefit of many of the energy efficiency provisions in the legislation, would be 23 cents per day ($83 per year). This is consistent with analyses by the Congressional Budget Office which projects a cost of 48 cents per day ($175 per year) and the Environmental Protection Agency which projects a cost of 22 to 30 cents per day ($80 to $111 per year)." [House Energy and Commerce Committee, EIA's Economic Analysis Of "The American Clean Energy And Security Act Of 2009," 8/4/09; emphasis original]