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The following is a fact-check of the May 16, 2010 episode of Meet the Press:

SEN. MITCH McCONNELL (R-KY)  | Elena Kagan’s solicitor office argued it would be OK to ban books, then she argued herself that it would be OK to ban pamphletsMOSTLY TRUE (but highly misleading)

SEN. McCONNELL: Solicitor Kagan’s office in the initial hearing argued that it’d be OK to ban books. And then when there was a rehearing Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be OK to ban pamphlets.

After reading through the argument transcripts and analysis by our crowd-sourcer Andy and by, we have come to conclusion that Senator McConnell’s statement is MOSTLY TRUE but highly misleading. Deputy Solicitor General Malcolm L. Stewart originally argued it would be OK to prohibit the publication of a book that was paid for with corporate funds and advocated for a political candidate. Does this fit the literal meaning of “banning books”? Yes. However, Stewart also had this exchange with Justice Alito:

(Supreme Court Argument Transcript [08-205] pg.27)

JUSTICE ALITO: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

MR. STEWART: I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.

So in this case he is saying that the issue is not about banning books as much as it is about prohibiting the use of corporate treasury funds for books which express advocacy, that those books must instead be paid for using a PAC. This is hardly the typical meaning of the term “banning books.”

Later on Kagan reargued their position, and focused not on the books but the pamphlets.

Supreme Court Argument Transcript [ 08-205 Reargued ] pg.48:

GENERAL KAGAN: …when corporations use other people’s money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.

Supreme Court Argument Transcript [ 08-205 Reargued ] pg.66:

CHIEF JUSTICE ROBERTS: But we don’t put our — we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

GENERAL KAGAN: I think a — a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. It does —

and then later:

Supreme Court Argument Transcript [ 08-205 Reargued ] pg.67:

GENERAL KAGAN: [W]hat we’re saying is that there has never been an enforcement action for books. Nobody has ever suggested — nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem.

So Kagan did argue that pamphlets could be prohibited but it was under the same very specific context outlined by Mr. Stewart, and both also argued moments later that in fact the materials could not be banned. We are not legal experts regarding the nuance of these kinds of arguments, but it seems like a stretch that to argue in any broad sense that either Stewart or Kagan were “OK with the banning of books”.  Regardless however, they did make arguments consistent with Sen. McConnell’s statement, so we have concluded it was MOSTLY TRUE (but highly misleading).

Disagree with our assessment? This was a tricky one, so let’s hear your analysis in the comments…

Special thanks to crowd-sourcer Andy for assisting with this fact-check

This fact check took a combined 4.5 hours.

The following is a fact-check of the May 16, 2010 episode of Meet the Press:

SEN. MITCH McCONNELL (R-KY) | Elena Kagan took the position that military recruiters should not be allowed at HLS and the Supreme Court decided 8-0 against that position – TRUE

SEN. McCONNELL: Secondly is the issue of the military recruitment at Harvard.  She took the position that Harvard should not allow military recruiters at the law school, later supported that position in a decision in the–in a, in a case in the court system that ended up with the Supreme Court ruling 8-to-nothing against the position that she took.

So Politifact looked at this one last week when analyzing a statement made by John Barrasso on Fox News. Their research and conclusion (TRUE on both) are sound. Key quote:

The Supreme Court, however, disagreed in an 8-0 ruling on March 6, 2006. The majority opinion, written by Chief Justice John Roberts, ruled against FAIR and, in doing so, rejected the claims of Kagan and the other law professors that the school had the right to enforce non-discrimination policies against the military. “Under the statute, military recruiters must be given the same access as recruiters who comply with the policy,” the opinion said.

Senator McConnell is correct on both, his statements are TRUE.

UPDATE: Here is some interesting additional analysis from commenter wesmorgan1

Special thanks to crowd-sourcer SLBinVA for assisiting with this fact-check.

This fact-check took a combined 15 minutes.

The following is a fact-check of the May 16, 2010 episode of Meet the Press:

SEN. CHUCK SCHUMER (D-NY) | Justices Marshall, Frankfurter, Jackson, and Rehnquist had limited/no judicial experience HALF TRUE (but it’s complicated)

This was a tricky one. Because there are more than one Justices with the last names Marshall and Jackson, which one Sen. Schumer intended changes the conclusion.

First off, it is correct that for the most part Justices Frankfurter and Rehnquist had no judicial experience prior to serving on the Supreme Court.

From crowd-sourcer Joshua:

Where Justice Frankfurter is concerned, it is true that he had no prior State or Federal civilian judicial experience (see…). He did server in the Judge Advocate General’s corp in WWI, and appears to have served as the Judge Advocate General himself ( However, I’ve been able to find nothing to suggest that he ever served as a judge in a military tribunal, as opposed to either overseeing the military courts administratively or serving as a defense or prosecution advocate.

Justice Rehnquist had no experience as a judge before his term on the Supreme Court (see…,,

Now regarding Justices “Marshall” and “Jackson” – judicial experience depends on which person you are talking about. More from crowd-sourcer Joshua:

Justice Robert Jackson, who served on the Supreme Court from 1941 to 1954, had no prior judicial experience, though Justice Howell Jackson, serving on the Supreme Court from 1893 to 1895, had previously served as a federal circuit judge. Justice Thurgood Marshall, for whom Elena Kagan clerked, had served as a judge on the Second Circuit from 1961 to 1965, prior to his appointment to the Supreme Court. However, Justice John Marshall, who served as Chief Justice from 1801 to 1835, had no judicial experience prior to his appointment.

We will include some more research and analysis from Joshua at the bottom of this post, which is also worth reading. But the bottom line is, without Sen. Schumer being specific it is impossible to give him better than a HALF TRUE on this statement. The lack of specificity is misleading. And even if he intended Justices Robert Jackson and John Marshall we’d probably only give the statement a MOSTLY TRUE.

The fact-checking of this statement took a combined 90 minutes.

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