Political Correction

Republican Policy Committee's Attack On General Kagan Lacks Substance

July 15, 2010 3:33 pm ET

In a "policy paper" titled "Vacuity, Farce, and the Kagan Hearings," the Senate Republican Policy Committee (RPC) attacked Solicitor General Elena Kagan with a series of debunked myths, falsehoods, and distortions.

RPC Distorted General Kagan's Words In Order To Attack Her Over Military Recruiting At Harvard

RPC: Kagan Said She "'Hope[d]' That The Federal Government 'Would Choose Not To Enforce' The Law" On Military Recruiting On Campus. From the RPC's anti-Kagan policy paper:

Ms. Kagan testified that in taking the actions she did against the military, she "always thought we were acting in compliance" with federal law.  However, Ms. Kagan herself wrote in an e-mail to the Harvard community that in barring recruiters she was acting in the "hope" that the federal government "would choose not to enforce" the law. Her argument that Harvard's lack of compliance was, in fact, compliance was flatly rejected by a unanimous Supreme Court, which noted that her specious interpretation was "rather clearly not what Congress had in mind." [Republican Policy Committee, 7/13/10]

In Reality, General Kagan Hoped The DOD Would Rely On Court Decision

Writing To Harvard Law School, Kagan Expressed "Hope" That The DOD "Would Choose Not To Enforce Its Interpretation" Of The Law Until Case Was Settled.  Then-Dean Kagan wrote, in part, to the "HLS community" in September 2005:

I write to let you know that this fall, the Office of Career Services (OCS) will provide assistance to the U.S. military in recruiting students, as it has done for most of the past three years. This email gives newcomers to our community some background on this issue, describes recent developments affecting it, and states my own views on the matter.

The Law School's anti-discrimination policy, adopted in 1979, provides that any employer that uses the services of OCS to recruit at the school must sign a statement indicating that that it does not discriminate on various bases, including sexual orientation. As a result of this policy, the military was barred for many years from using the services of OCS. The military retained full access to our students (and vice versa) through the good offices of the Harvard Law School Veterans Association, which essentially took the place of OCS in enabling interviews to occur.

In 2002, the then-Dean of the Law School, Robert Clark, in consultation with other officers of the University, reluctantly created an exception from the law school's general anti-discrimination policy for the military. The Dean took this action because of a new ruling by the Department of Defense stating that unless the Law School lifted its ban, the entire University would lose federal funding under a statute known as the Solomon Amendment. (This amendment denies federal funds to an educational institution that "prohibits or in effect prevents" military recruiting.) The Law School's own resources were not at risk: we do not receive any of the kinds of federal funding that the Amendment threatens to cut off. The University, however, receives about 15% of its operating budget from the federal government, with the Medical School and the School of Public Health receiving by far the largest share of this money for scientific and medical research. The Dean determined (as did all other law school deans) that he should make an exception to the School's anti-discrimination policy in the face of this threat to the University's funding and research activities.

I continued this exception in effect, for the same reasons, through the 2003 and 2004 fall recruiting seasons. In the meantime, a consortium of law schools and law school faculty members (FAIR) brought suit challenging the Defense Department's policy on constitutional grounds. Harvard Law School is not a member of FAIR, but 54 faculty members, including me, filed an amicus brief in that suit articulating different, statutory grounds for overturning the Department's policy. In November 2004, the Court of Appeals for the Third Circuit issued a decision in the FAIR case, 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. (Much the same group of HLS faculty members, including me, will file an amicus brief tomorrow in the Supreme Court litigation. I also understand that the University expects to join an amicus brief filed by Yale and other universities.) 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. [Kagan letter to Harvard Law School, 9/20/05, emphasis added]

RPC Claimed That Military Recruiters Did Not Have Good Access To Harvard Law Students While General Kagan Was Dean

RPC: It Is "Simply Not The Case" That The Military Had "Full And Good Access" To Harvard Students At All Times. According to the RPC:

Ms. Kagan's decision as Dean of Harvard Law School, to ban military recruiters from the school's career services program has been a cause of concern for many Americans.  Understandably, she was questioned about this action, taken during a time of war and in open defiance of federal law, during her hearing.  Her testimony appeared to be inaccurate.  First, she claimed that at all times during her deanship the military had "full and good access." This is simply not the case.  Internal Pentagon documents show that under Ms. Kagan "The Army was stonewalled at Harvard." The school's Veterans Association, which attempted to step in and support the recruiting that the school would not, was ill equipped for the task. [Republican Policy Committee, 7/13/10]

In Reality, Military Recruiting Did Not Decrease During General Kagan's Time At Harvard

Military Recruiting Did Not Decrease During Kagan's Tenure At Harvard. Military recruiters were subject to restrictions during one semester of Kagan's tenure -- Spring 2005. However, recruiting did not diminish during that time or at any time after Kagan became dean in June 2003:

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]

Military Recruiters Have Accessed Students Through The Harvard Law School Veterans Association Since 1996.  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]

RPC Attacked General Kagan's Non-Controversial Testimony About The Second Amendment

RPC: Kagan Did Not Testify "That She Would Uphold" Precedents Protecting The Right To Bear Arms.  According to the RPC:

Ms. Kagan was at pains to assure both Republicans and Democrats on the Second Amendment, repeatedly saying that the McDonald and Heller decisions are "settled law" and "entitled to all the respect of binding precedent."  This is far short of testifying that she would uphold these precedents and suggests little more than an awareness these decisions exist.  [Republican Policy Committee, 7/13/10]

Bush Appointed Justice John Roberts Failed To Answer Questions Regarding The Second Amendment...

Bush Appointee John Roberts Explicitly Refused To Answer A Question On His "Views About The Second Amendment At His Hearing.  On day three of Justice John Roberts' confirmation hearing, Roberts and Sen. Russ Feingold (D-WI) had the following exchange:

SEN. RUSS FEINGOLD (D-WI): So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?

ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, "I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts." So I do think that issue is one that's likely to come before the court. [Roberts Confirmation Hearing transcript via Washington Post, 9/14/05]

...And Was Supported By Republicans In Not Answering

Sen. Cornyn: "No One Is Entitled To Know ... How Judge Roberts Will Rule" On Hot-Button Issues. During the September 22, 2005 edition of PBS' The NewsHour with Jim Lehrer, Sen. John Cornyn (R-TX) stated: "I submit that particularly in courts of law, no one -- no one is entitled to know ahead of time what the outcome will be because the very premise of our judicial process is that courts are supposed to be fair and listen to both sides, or all sides of an argument. The judges are supposed to be disinterested in the outcome, and impartial, and that judges finally be independent of the political process. So no one is entitled to know what Judge Roberts -- how Judge Roberts will rule on these hot-button issues of the day. No one is." [News Hour with Jim Lehrer, 9/22/05]

Sen. Hatch: "Nominees May Not Be Able To Answer Questions That Seek Hints" About How They Would Rule. During the Justice Roberts confirmation hearings, Sen. Orrin Hatch (R-UT) stated: "Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues." He later added: "Nominees may not be able to answer questions asking them to opine or speculate about hypotheticals outside of an actual case with concrete issues and real facts." [Roberts Confirmation Hearing transcript via New York Times, 9/13/05]

Sen. Grassley: "I'm Hoping We Won't See A Badgering Of The Nominee About How He'll Rule On ... Possible Issues That Will Or May Come Before The Supreme Court." During the Justice Roberts confirmation hearings, Sen. Charles Grassley (R-IA) stated: "I'm hoping that we won't see a badgering of the nominee about how he'll rule on specific cases and possible issues that will or may come before the Supreme Court. And let me remind my colleagues that Justices Ginsburg and Breyer refused to answer questions on how they would rule on cases during their confirmation hearings." [Roberts Confirmation Hearing transcript via New York Times, 9/12/05]

RPC Launched Debunked Attack On General Kagan's Experience

RPC: Kagan Does Not Have "The Usual Experience Of A Supreme Court Justice." The RPC stated:

Ms. Kagan came before the Judiciary Committee without the usual experience of a Supreme Court Justice.  That, coupled with a record of left-wing political advocacy, immediately raises serious questions about her fitness for the bench.  Quite simply, her testimony did nothing to answer those questions, and only raised additional ones. [Republican Policy Committee, 7/13/10]

In Reality, 38 Justices Had Not Been Judges Prior To Nomination

38 Supreme Court Justices Had No Prior Judicial Experience.  According to University of Virginia government professor emeritus Henry J. Abraham, 38 justices had no prior judicial experience when they were appointed to the Supreme Court.  [Abraham, Justices, Presidents, and Senators: A History of Supreme Court Appointments from Washington to Bush II, p. 40, via Google Books]

General Kagan Has Also Received Support From Legal Experts, Including SCOTUS Justices

ABA Rated Kagan Well Qualified. The American Bar Association's Standing Committee on the Federal Judiciary unanimously (with one recusal) gave Kagan a rating of Well Qualified, its highest rating. [American Bar Association, 6/24/10]

Justice Scalia Said He Was "Happy To See That This Latest Nominee" Is "Not A Judge At All." According to ABC's Political Punch blog:

Justice Antonin Scalia, the High Court's most outspoken conservative, said Wednesday that he likes that the former Harvard Law School dean and Solicitor General is not currently a judge.

"When I first came to the Supreme Court, three of my colleagues had never been a federal judge," said Scalia who joined the Court in 1986 after being nominated by President Reagan. "William Rehnquist came to the Bench from the Office of Legal Counsel. Byron White was Deputy Attorney General. And Lewis Powell who was a private lawyer in Richmond and had been president of the American Bar Association."

"Currently, there is nobody on the Court who has not served as a judge -- indeed, as a federal judge -- all nine of us," he continued. ". . . I am happy to see that this latest nominee is not a federal judge -- and not a judge at all." [ABCNews.com 5/28/10]

Sandra Day O'Connor Said "I Don't Think" Judicial Experience Should Matter, Predicted Kagan Would Be Confirmed. On ABC's Good Morning America, former Supreme Court Justice Sandra Day O'Connor and George Stephanopoulos had the following exchange:

STEPHANOPOULOS: Does it matter if someone hasn't been a judge before they go to the Supreme Court?

O'CONNOR: I don't think it does. We've had at least a third of the justices over time were never a judge. I think it's fine, just fine. If you ... are a scholarly in nature, if you are willing to do all the reading (LAUGH) and the homework, you'll be fine. If you can write well, think well, you'll be fine.

STEPHANOPOULOS: And from what you've seen of Elena Kagan, I know you know her a little bit, do you think she'll be confirmed?

O'CONNOR: I would think so. She seems to be very well qualified academically. [Good Morning America, 5/27/10]

Reagan Solicitor General: Kagan Should Be Confirmed To Supreme Court.  According to the Huffington Post, Solicitor General (under Reagan) Charles Fried said: "[Kagan] is a supremely intelligent person, really one of the most intelligent people I have encountered, and I have met a lot of them, as one does in this business. She is very adroit politically...She has quite a strong personality and a winning personality. I think she's an effective, powerful person and a very, very intelligent person, and a very hardworking and serious person...Let's put it this way: she should be [backed by Republicans]. But it depends on the politics...Republicans may just decide that: 'We're going to say no to what Obama comes up with the first time and we'll come up with a reason why after we've decided that we're going to say no.' I can't predict that that's what they'll do or not. But she should be, she should be." [Huffington Post, 4/9/10]

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