May 21, 2010

By Dave Andrusko

Like a lot of people, my attention has disproportionately zeroed in on Tuesday's primary elections. Let me conclude the week by returning to another subject everyone's talking about.

There is a kind of polite fiction that we are supposed to accept--that somehow a President joined at the hip to the Abortion Establishment might somehow nominate a candidate to the Supreme Court whose total commitment to upholding--if not expanding--Roe v. Wade could be in doubt.

So we get stories from places like the Los Angeles Times with headlines which ought to be tongue-in-cheek but aren't: "Kagan's abortion stance has both sides guessing." No, not really. No, not even a little.

Reporters who want to write as if there is some suspense start with an idea about Obama that they have embedded in their computer hard drive: that he likes to accommodate and compromise and find common ground, etc., etc., etc. It simply isn't true, as any even marginally objective analysis of his maneuvering on ObamaCare demonstrates conclusively.

Add to this bogus initial premise is a total misreading of memos Elena Kagan wrote as a staffer for President Clinton, a myth created, if memory serves me right, by the Washington Post. The Los Angeles Times's Christi Parsons and James Oliphant pick it up, stating flatly that her memos were "urging President Clinton to take a compromise position on some late-term abortions."

This is wrong on many levels, as we discussed earlier (see http://www.nrlc.org/News_and_Views/May10/nv051110.html and http://www.nrlc.org/News_and_Views/May10/nv051310.html). To its credit the New York Times blew away the smokescreen.

The headline to Peter Baker's story was "As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban." Baker wrote, "As a White House domestic policy aide, Ms. Kagan sent Mr. Clinton a memorandum urging him to endorse the ban sponsored by Senator Tom Daschle, Democrat of South Dakota."

Why? Because the memo, Baker explained, "anticipated that the Daschle plan would fail but suggested that it would provide political cover for enough senators to stick by the president when he ultimately vetoed the tougher bill sponsored by Republicans."

There are lots of other signs that Kagan will be a reliable pro-Roe vote, including criticism of the Supreme Court's 1991 Rust v. Sullivan decision. And while her defenders insist her comments should not be taken seriously (since Kagan was a college student at the time), it'd be hard to come away from reading a 1980 op-ed she wrote for the Daily Princetonian without concluding that she intensively disliked Republicans; disliked pro-life Republicans even more; and hoped for the day when "a new, revitalized, perhaps more leftist left will once again come to the fore." (Emphasis in the original.)

You can read her essay-- "Fear and Loathing in Brooklyn"!-- at www.dailyprincetonian.com/2010/05/03/26082.

As I wrote previously, in reviewing a book by Stephen Carter for the University of Chicago Law Review, Kagan insisted that the Senate, the Judiciary, and the American public are ill-served by a namby-bamby, content-free Senate confirmation process.

As she wrote, "If substantive inquiry is off-limits, on what basis will the President and Senate exercise their respective roles in the appointment process?"

Please send your thoughts and comments to daveandrusko@gmail.com.

Part One