Sunday Replay

From: FactCheck.org

On the Sunday before confirmation hearings kicked off for Supreme Court nominee Elena Kagan, we heard several misleading comments having to do with her or nominations of earlier years. We also found no evidence to back up Sen. John Cornyn’s claim that the new health care law was negatively impacting seniors’ access to health care. And Sen. Lindsey Graham’s assertion that Rahm Emanuel said it’s administration "policy" to pull troops out of Afghanistan "in large numbers" in July 2011 is false.

As for Phoenix holding the title of "number two kidnapping capital of the world"? We’re still looking to nail that one down.

Spinning for Kagan

With Republicans refusing to rule out a filibuster on Kagan, Judiciary Committee Chairman Patrick Leahy denied that Democrats had tried to filibuster the nomination of Justice Samuel Alito in 2006. On CBS’ "Face the Nation," he said:

Jan Crawford (CBS News chief legal correspondent): But Senator Leahy, I mean, Justice Alito, obviously President Bush’s nominee was widely viewed as highly qualified, intellectual giant. He got the highest rating by the American Bar Association. He had support from liberals just like Elena Kagan has support from conservatives. Yet, you not only voted against Justice Alito, you and the president and the vice president then in the Senate thought that she should
be filibustered. So how can you–

Leahy (overlapping): No, actually– actually we had– we– we had–

Crawford: –criticize Republicans for kind of doing the same thing?

Leahy: We had, sort of, a test vote on– on him. Everybody knew that was more symbolic.

Crawford (overlapping): Well, 25 Democrats voted not to have–

Leahy: Sure. And– and then we immediately went and we still could have held it up for a day. We went immediately to a vote on him.

The Vermont Democrat may call it "sort of a test vote," but most of the world called it a filibuster. Some headlines from the news of January 2006: "Senate Plans to Cut Off Alito Debate as Democrats Filibuster," "Key Democrats Try to Mount Filibuster Against Alito," "Alito Filibuster Try Lacks Support." Democrats may have known ahead of time that they didn’t have the 41 votes they needed to block the Republicans, but they went through the filibuster motions.

Records Released

Sen. Jeff Sessions, a Republican from Alabama, also complained on "Face the Nation" that “the White House, Obama and President Clinton’s lawyers” might be unfairly holding up the release of documents about Kagan. But the general counsel at the National Archives says the processing of records has been consistent with those of previous confirmation hearings.

Sessions: The problem is the White House, Obama and President Clinton’s lawyers are reviewing these documents without any second independent review. They are deciding what we get. And I think that’s … not good.

Leahy: They’re doing the same review we had of Justice Roberts by the Reagan Library. And I felt that was fair and honest.

Gary Stern, general counsel at the National Archives and Records Administration, wrote in a June 19 letter to Leahy and Sessions: “NARA has processed these additional documents consistent with the other productions we have made” and “consistent with our prior three releases and the records provided by in Chief Justice Roberts’ confirmation.” Stern acknowledged that certain documents were withheld, and he cited “personal privacy restriction.” He added: ”We have made every effort to withhold as little as possible and to provide portions of documents where possible, rather than withholding an entire document.”

Gunning for Kagan

Texas Republican Sen. John Cornyn sounded a skeptical note about Kagan’s interpretation of the Second Amendment on CNN’s "State of the Union":

Cornyn: We know she has expressed hostility to second amendment rights, saying she wasn’t sympathetic to the arguments of gun owners when she clerked for Justice Thurgood Marshall.

Cornyn is referring to a very brief 1987 memo that Kagan wrote to Marshall recommending that the court decline to hear a case involving a man convicted of carrying a firearm in Washington, D.C., which had strong gun control laws. He challenged the conviction based on the Second Amendment, and was trying to get the Supreme Court to hear his appeal. Kagan wrote: "I’m not sympathetic."

Kagan has said she was channeling Marshall’s views. But it’s also true that it was settled law at the time that localities could impose gun bans without being held in violation of the Constitution. That changed with a 2008 Supreme Court opinion, District of Columbia v. Heller, which was extended by a decision issued by the Court on June 28 in McDonald v. Chicago. Kagan, in her capacity as solicitor general, had decided not to file a brief on either side of the Chicago case on behalf of the government, a fact that is now being held against her by conservatives.

It’s a stretch to call her actions, and lack thereof, "hostility." In responses to questions posed to her when she was seeking confirmation as solicitor general, Kagan certainly seemed to accept that the legal landscape had changed:

Kagan: There is no question, after Heller, that the Second Amendment guarantees Americans "the individual right to possess and carry weapons in case of confrontation."

Health Care Claims

Cornyn also said that cuts to Medicare in the new health care law were “having a very negative impact on access to health care.” But his support for the claim doesn’t show that the law is currently having that effect. He also said the legislation wouldn’t lower the cost curve, despite Obama’s claims to the contrary. That’s true, according to a government report.

Cornyn: Things like the health care bill which we’re just now learning that all of the promises the president made about the health care bill, that most of them have proven to be untrue in terms of lowering the cost curve — reducing the cost curve. Indeed, what we have seen is the increased taxes, the increased premiums that are caused by the government mandates, and the cuts in Medicare are having a very negative impact on access to health care in this country.

Cornyn is correct when he says President Obama promised the legislation would reduce the growth in health care spending. For instance, in a September 2009 address to Congress, Obama said his plan would “slow the growth of health care costs for our families, our businesses, and our government.” When he signed the legislation into law, the president again said it would “lower costs.”

And Cornyn is right that an April report from Richard Foster, the chief actuary of the Centers for Medicare and Medicaid Services, said that the health care law wouldn’t do that. Specifically, Foster wrote that national health expenditures "would increase by a total of $311 billion (0.9 percent) during calendar years 2010-2019." Why? Mainly because the law expands coverage to 34 million people and provides better coverage to others, so they’ll be using more services. Projected savings in the law from changes to Medicare and Medicaid, Foster said, would be more than offset by the cost of expanding coverage.

But Cornyn went on to claim that “the cuts in Medicare are having a very negative impact on access to health care in this country.” His office cited the same CMS report as support for that claim, but that’s not what the report said. And it in no way measures what’s happening because of the law now. In Foster’s report, he only said that access to care could "possibly" be affected, if – and he describes it as a big if — prescribed cuts in payment updates to health care providers were actually sustained. If those cuts are kept, he said, providers with a lot of Medicare clients “could find it difficult to remain profitable and, absent legislative intervention, might end their participation in the program (possibly jeopardizing access to care for beneficiaries).” In other words, access to doctors and hospitals could be affected, or the Medicare cuts won’t be fully carried out, resulting in far less savings than originally advertised.

Cornyn’s office also pointed to a USA Today article from June about some doctors refusing to take new Medicare patients, because of low payment rates and the inability of Congress to stop a scheduled 21 percent cut in payments. The health care law didn’t fix that scheduled cut, but Obama recently signed legislation delaying that reduction.

On CNN, Cornyn also mentioned “increased premiums that are caused by the government mandates.” As we’ve written before, premiums are not expected to change significantly for most people, according to estimates from the Congressional Budget Office. Those likely to see an increase are persons who buy their own health insurance. Benefits for those in this individual market are expected to get much better, because of those government mandates. More than half of those in this market, however, would receive subsidies that make their total bills much lower than they normally would be.

Afghan Quicksand

On "Fox News Sunday," Republican Sen. Lindsey Graham of South Carolina misquoted White House Chief of Staff Rahm Emanuel on the subject of getting U.S. troops out of Afghanistan:

Graham: Is he [Vice President Joseph Biden] saying what the policy is — we’re going to leave in large numbers July of 2011, you can bet on it? If that’s the policy, that will doom this operation. If it’s not the policy, he shouldn’t be saying it. My belief is that he thinks it’s the policy. Rahm Emanuel said last week it’s the policy.

Graham referred to a book by Newsweek columnist Jonathan Alter, who quoted Biden as saying, "In July of 2011 you’re going to see a whole lot of people moving out. Bet on it."

But contrary to Graham’s claim, Emanuel did not say that "it’s the policy" of the administration to “leave in large numbers” in July 2011. Appearing one week earlier on ABC’s "This Week," Emanuel simply said the number of troops to be withdrawn “will be determined at that date," echoing what President Obama has said.

ABC’s Jake Tapper (June 20): So what exactly does the July 2011 deadline mean? Is it going to be a whole lot of people moving out, definitely, as Vice President Biden says? Or could it be more nuanced, as General Petraeus says, maybe just a couple of people leaving one province?

Emanuel: Well, no, everybody knows there’s a firm date. And that firm date is a date — deals with the troops that are part of the surge, the additional 30,000. What will be determined at that date or going into that date will be the scale and scope of that reduction.

… And the goal is to take this opportunity, focus on what needs to get done, and then on July 2011, is to begin the reduction of …

Tapper: But it could be any…

Emanuel: … troops.

Tapper: But it could be any number of people.

Emanuel: That’s what you’ll evaluate based on the conditions on the ground.

Kidnap Capital?

Discussing border security on NBC’s "Meet the Press," Arizona Sen. John McCain asked host David Gregory, "why is it that Phoenix, Arizona, is the number two kidnapping capital of the world?" We didn’t know that. And, after doing some research, we still don’t – and wonder how McCain does.

We contacted McCain’s office to see where his information came from, but we haven’t received a response. However, it may well have come from a Feb. 11, 2009, ABC News investigative report, claiming "Phoenix, Arizona, has become the kidnapping capital of America, with more incidents than any other city in the world outside of Mexico City." But the network’s report doesn’t say exactly how that conclusion was reached. Our own Internet search turned up several news articles from 2009 referring to Phoenix as our nation’s "kidnapping capital," but they don’t source the information.

Don’t get us wrong: There’s little doubt that Phoenix has had its share of kidnappings. According to a Dec. 27, 2009, Associated Press report, the Arizona capital was on track to record a decline in kidnappings for the year for the first time since 2005. But just one year prior, in 2008, the city reported 359 kidnappings, a 10-year high. But second in the world?

A July 12, 2009, Arizona Republic report seeking to answer whether Phoenix is "really the ‘kidnapping capital,’ " quoted the city’s police Sgt. Tommy Thompson admitting to the city’s problem, but questioning whether other cities around the world were as forthcoming with data. "Does anyone know how many kidnappings there are in Bogotá [Colombia]? In Mogadishu [Somalia]? In Baghdad [Iraq]?," Thompson asked, according to the Republic. And we certainly have had trouble finding statistics on kidnappings not just in the U.S. (FBI’s Uniform Crime Report does not have a specific crime category for kidnapping), but outside the country as well. As far as we know, there’s no handy list ranking world cities for this dubious honor.

Besides McCain’s office, we’ve also contacted ABC News to see if anyone there can shed light on the matter. We’ll keep you posted if we hear back.

– by Viveca Novak, Lori Robertson, Brooks Jackson, D’Angelo Gore and Melissa Siegel

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