Pat Toomey Fact-Checked

Republican Senatorial Candidate Pat Toomey in a piece in Monday's Post-Gazette wrote that were he in the Senate right now, he'd (no surprise here) oppose her confirmation to the Supreme Court.

As with most political writing, when you look at the details you'll see how much spin there is.

And there's a sizable amount in Toomey's piece. It's embarrassing how easily he uses the by now debunked conservative talking points. Pennsylvania deserves a better candidate.

I fear I am getting ahead of myself. Let's look at the piece.

Toomey gives three reasons why he'd oppose and that's where the spin sits.

Point one:

The Commerce Clause of the Constitution's Article I permits Congress to regulate economic activity between the states. This is of course necessary for a well-functioning national economy. Regrettably, the clause has become the vehicle of choice for judges and politicians to expand federal power into every manner of human activity, despite extremely attenuated connections to interstate commerce.

In recent years the Supreme Court has shown an encouraging willingness to reign in Commerce Clause abuses. However, in her Judiciary Committee testimony, Ms. Kagan expressed a view that envisions practically no limit to federal power. She would not even rule out the farcical example of a federal power to force citizens to eat three helpings of fruits and vegetables each day, all in the name of "regulating commerce." That view turns the notion of a government of enumerated powers on its head, substituting the anti-constitutional notion that that which is not expressly forbidden to Congress is thereby permitted.

Really? She would not "rule out" the government forcing citizens to eat their veggies??

Um, no. Here's the story from politico.com:

Republicans are pouncing on the less-than-crystal-clear answer Supreme Court nominee Elena Kagan gave late in Tuesday's confirmation hearing to a question from Sen. Tom Coburn (R-Okla.) about whether the government has the right to micromanage Americans' diets.

"If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that’s now the law of the land, got to do it, does that violate the commerce clause?" Coburn asked.

"Sounds like a dumb law," Kagan replied. "But I think that the question of whether it’s a dumb law is different from the question of whether it’s constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they’re senseless."

So she thinks it would be "a dumb law." Huh. Toomey didn't say that, did he? Nor did he point out what politico writes a few paragraphs later:

While it's true that Kagan never definitively answered Coburn's question, the pair spent nearly 10 minutes discussing the issue. In comments she made after the brief clip the GOP posted, Kagan indicated that laws that regulated noneconomic activity, which presumably would include eating, were beyond Congress's commerce clause power. [emphasis added]

Ah. Later on she responds to Senator Coburn some more:

Well, Sen. Coburn, I guess a few points. The first: I think there are limits on the Commerce Clause, which are the ones that are articulated by the Court that were articulated by the Court in Morrison and in Lopez. Which are primarily about non-economic activity and Congress not being able to regulate non-economic activity. I guess the second point I would make is I do think that very early in our history and especially I would look to Gibbons v. Ogden, where Chief Justice Marshall did, in the first case about these issues, essentially read that clause broadly and provide real deference to legislatures and provide real deference to Congress about the scope of that clause, not that that clause doesn’t have any limits, but that deference should be provided to Congress with respect to matters that affect interstate commerce. And I guess the third point is just to say that I think that $1.6 trillion deficit may be an enormous problem—it may be an enormous problem. But I don’t think it’s a problem for courts to solve. I think it’s a problem for the political process to solve.

Look at that. She's talking about the Supreme Court acting in deference to the Congress. That if the Congress passed a senseless law, that doesn't mean it's necessarily unconstitutional. What would be said about her if she said otherwise?

That's right: Judicial Activist!!

Point two:

Ms. Kagan's record is equally troubling in an area in which Congress is in fact expressly forbidden to meddle, namely, the First Amendment's guarantee of political free speech.

In arguing a case before the Supreme Court last year on behalf of the Obama administration, Ms. Kagan expressed the view that it was within Congress' power to pass a law that banned a pamphlet or book because of its advocacy of a political viewpoint. Ms. Kagan's position was rejected by the court. However, the very argument in favor of federal power to ban disfavored books is chilling. In her committee testimony, Ms. Kagan defended her action as simply advocating the government's view at the time, but she did not expressly disavow that view when she easily could have and should have.

Oh. My. God. She wants to ban books??

Um no. And if Toomey's spin on the veggies is only slightly dishonest, this one's a humdinger. From Slate.com:

To understand how Kagan could be tarred as a proponent of censorship and a protector of incumbents, one needs more context than Bossie offers. For decades, federal law has said that if a for-profit corporation or labor union wanted to produce anything expressly calling for the election or defeat of a federal candidate, it had to use funds from a political action committee, or PAC. The corporation could pay all the expenses to set up and run the PAC, and the PAC could ask corporate officers, directors, shareholders, and others to donate funds to it for political purposes. The corporation itself could endorse a candidate for office at a press conference, and, of course, real live individuals associated with the corporation could both donate money to federal candidates and spend unlimited sums supporting or opposing such candidates. What the corporation could not do is spend its general treasury funds—that is, the money it received from selling sneakers or software—for candidate elections.

And then:

At issue in Citizens United was whether an ideological corporation that did take corporate money could be required to use its PAC to pay for cable television "video-on-demand" distribution of a documentary excoriating Hillary Clinton while she was running for the Democratic presidential nomination. The position of the government, eventually defended at the high court by the government's lawyer, Kagan, was that the PAC requirement was constitutional as applied to television content paid for from Citizens United's general treasury funds. Justice Breyer explained the basis for the McCain-Feingold rule in the Citizens United oral argument: "Look, [Congress] said the compelling interest is that people think that representatives are being bought, okay? That's to put it in a caricature, but you understand what I'm driving at, okay? …. So Congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electioneering communication in the last 30 days of a primary, over-the-air television, but not on radio, not on books, not on pamphlets, not on anything else. All right?"

So the question for the court was whether this corporation had to pay for its television content out of a separate fund. It did not involve books at all, much less the ability of the government to ban books or any other form of political speech.

And then finally:

But what has so exercised Sen. McConnell, David Bossie, and others is Kagan's statement at argument—in response to more pressing by the conservative justices—that if a corporation produced "a pamphlet" directly calling for the election or defeat of a federal candidate ("Vote against Smith"), it would have to pay for it with its PAC funds. This is hardly the stuff of book-banning and government censorship. As Justice Stevens explained in his dissent in Citizens United, to call the PAC requirement a "ban" is "highly misleading, and needs to be corrected."

Ah...So Pat says Kagan said Congress could pass a law banning books because of its advocacy of a political viewpoint, he was just plain wrong (or he was being deceptive - we report you decide).

But the big braciola is this:

Third, Ms. Kagan's decision as dean of Harvard Law School to deny military recruiters equal access to students is quite problematic. I share the view that the "don't ask, don't tell" policy regarding gay servicemen and women has outlived its usefulness and, subject to the military's conclusion of the feasibility of removing it, I support its repeal. However, one's disagreement with a federal law does not give one license to circumvent it. It took the Supreme Court itself unanimously deciding against Ms. Kagan's position to get her to reverse course.

Really? Kagan circumvented federal law?

Um, no. As I posted back in June, Elena was following federal law. Lookee here. This is from the New York Times article I quoted:

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.

But 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.

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.

And:

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.

But 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.

Now go back and look at what Pat wrote. Since the Solomon amendment was ruled unconstitutional, it wasn't "federal law." So saying she "circumvented" it is just a lie.

In an age when the conservative press is driven (or at least tainted) by Breitbart-like journalism, it's important now for every conservative politician to be as squeaky clean honest as possible.

It's sad to see that Pat Toomey isn't being as honest as he needs to be to be Senator.