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NRL News
Page 1
June 2010
Volume 37
Issue 6

NRLC opposes confirmation:
Supreme Court Nominee Kagan Not Pro-Life on
Abortion, Human Cloning, Assisted Suicide


When pro-abortion President Barack Obama nominated Solicitor General Elena Kagan to replace retiring pro-abortion Supreme Court Justice John Paul Stevens, the most common description of the 50-year-old Kagan was that she resembled a “blank slate.” This was no doubt part of her appeal as Obama sought to make sure his second Supreme Court nomination ran as smoothly as his 2009 nomination of now-Justice Sonia Sotomayor.

Kagan, the one-time dean of the Harvard Law School, has never served on the bench (if confirmed, Kagan would be the first justice without judicial experience in almost 40 years), written sparsely as an academician, and, all in all, remained under the radar.

But two months plus out from her nomination, a clearer picture of Kagan is beginning to emerge. Based on an accumulation of direct and indirect evidence about her positions on abortion, assisted suicide, and cloning, along with her general support for an activist, results-oriented approach to constitutional law, National Right to Life opposes Kagan’s confirmation to be the Court’s 112th justice.
Within minutes of Obama’s May 10 announcement of his pick, the Associated Press reported that “Obama has started making calls to Senate leaders to inform them of his choice, while his White House team is launching a broad campaign-style outreach to Capitol Hill and the media.” The effort, the AP explained, “is designed to shape the national image of Kagan, an unknown figure to much of America.”

The image that the administration is attempting to shape is either that of a “moderate,” or, alternatively, that there is little to suggest (as the AP put it on behalf of the Administration) that she “would stray far from Stevens’ perch on the left of the political spectrum.”

That is hardly comforting to pro-lifers, who note that former New York Times Supreme Court reporter Linda Greenhouse earlier this year characterized Stevens as “an indispensable strategist in the preservation of the [abortion] right at its moment of greatest need.”

The most recent information about Kagan has come primarily from two sources. CBS News’ Chief Legal Correspondent Jan Crawford drew on papers Kagan wrote when she clerked for pro-abortion ultra-liberal Justice Thurgood Marshall for a story which ran under the headline “EXCLUSIVE: Documents Show Kagan’s Liberal Opinion on Social Issues.”

According to Crawford, “The documents, buried in Marshall’s papers in the Library of Congress, show Kagan standing shoulder-to-shoulder with the liberal left, at a time when the Rehnquist Supreme Court was moving to the conservative right.”

The other source is a collection of documents from the Clinton Presidential Library which cover 1995–99, the time Kagan served on the Clinton White House staff in the domestic policy office and the office of the White House counsel. It is estimated that there are about 160,000 pages of relevant documents in the archive. At NRL News deadline, only about one-fourth of these had been released.
Kagan’s Views on Abortion Policy

From these and other sources, what have we learned about Kagan and abortion and her attitude toward pro-lifers? More than initially meets the eye.

“In the Kagan writings that have come to light so far, we find troubling evidence that she holds views contrary to pro-life principles on a range of key issues, and that she believes it is the proper role of judges to allow their policy preferences to shape their judicial rulings,” said NRLC Senior Legislative Counsel Susan T. Muskett.

As early as 1980, while still a student at Princeton, Kagan may also have betrayed a personal animus towards the pro-life movement in an essay in a campus newspaper. She lamented Republican gains in the 1980 election–specifically those of Ronald Reagan and of newly elected Senators Steve Symms (Id.), Jim Abdnor (SD), Dan Quayle (In.), and Charles Grassley (Iowa)–referring to “these anonymous but Moral Majority-backed opponents of Senators Church, McGovern, Bayh and Culver, these avengers of ‘innocent life’ and the B-1 Bomber, these beneficiaries of a general turn to the right and a profound disorganization on the left.” (Grassley remains in the Senate and sits on the Judiciary Committee, which will begin hearings on the Kagan nomination on June 28.)

In a May 10, 2010, NRLC press release, Legislative Director Douglas Johnson asked, “Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term ‘innocent life’ in quote marks, or does she have another explanation? Would she be able to set aside any animus she has towards those who fight to protect innocent human life, when reviewing laws duly enacted for that purpose?”

Eight years later, as a law clerk to Justice Marshall, Kagan urged the justice to oppose taking a case on appeal involving a prisoner’s right to obtain access to an abortion, arguing that “this case is likely to become the vehicle that this Court uses to create some very bad law on abortion and/or prisoners’ rights.” Kagan apparently feared that the more conservative justices on the court might use the case to reinforce cases denying a right to government-funded abortions.

Carrie Severino with the Judicial Crisis Network commented, “We can see from her statements that she viewed a court backing away from abortion rights or prisoner rights as a step in the wrong direction. ... For those who weren’t already confident in her pro-Roe v. Wade position, this should be a clear signal.”

In 1993, while a law professor, Kagan wrote critically of a U.S. Supreme Court decision (Rust v. Sullivan) that upheld regulations prohibiting the use of certain federal funds to support programs that counsel, refer, promote, or advocate abortion as a method of family planning.

Partial-Birth Abortion

From 1995 to 1999, Kagan worked on President Clinton’s White House staff, advising the President and his senior staff on various legal and policy issues. A number of recently released memoranda show that Kagan played an important role in shaping White House strategy in opposition to the Partial-Birth Abortion Ban Act, an NRLC-backed bill that President Clinton vetoed in 1996 and again in 1997. Both vetoes were overridden in the House of Representatives but sustained in the Senate.

Douglas Johnson, who led NRLC’s lobbying effort in support of the bill, commented: “In a June 1996 memorandum, Kagan wrote that she had learned from a private briefing from representatives of the American College of Obstetrics and Gynecology (ACOG) that ‘in the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health,’ which she characterized as “something of a revelation.” But when Kagan heard, in December 1996, that ACOG was considering making a public statement along the same lines, she wrote that this ‘of course, would be disaster.” It appears that Kagan was dismayed not by the realities of partial-birth abortion, but by the prospect that public awareness of those realities would harm the White House efforts to prevent enactment of the ban.”

In May, 1997, Kagan co-authored another memorandum in which she advised President Clinton to “endorse the Daschle amendment in order to sustain your credibility on HR 1122 [the Partial-Birth Abortion Ban Act] and prevent Congress from overriding your veto.”

The Daschle Amendment was an alternative bill, put forward by pro-abortion senators which NRLC denounced, in 1997, as a “phony ban.” It would have applied no limitations at all on partial-birth abortions performed in the fifth and sixth months (before provable “viability”), and only loophole-ridden limits on abortions in the seventh, eighth, and ninth months.

In one memo, Kagan explicitly noted that Daschle’s purpose was to “provide cover for pro-choice Senators (who can be expected to support it),” and thereby blunt the campaign to enact the Partial-Birth Abortion Ban Act.

Johnson commented: “The bottom line is that thousands of additional babies were mostly delivered alive and then stabbed through the back of the head, thanks to the deceptive but successful political strategy, to which Elena Kagan lent all of her considerable talents, that blocked the Partial-Birth Abortion Ban Act from becoming law during the Clinton Administration.”

The Partial-Birth Abortion Ban Act ultimately was signed into law by President George W. Bush in 2003, and was upheld by the U.S. Supreme Court in 2007.

Other documents also date from 1997, not long after scientists used a cloning method (somatic cell nuclear transfer) to produce the first cloned mammal, Dolly the sheep. Kagan was among the White House aides who advised President Clinton to endorse federal legislation that would temporarily ban using cloning to produce a human birth, but she explicitly recommended that the legislation should allow the use of cloning to create human embryos for use in research–a policy that pro-life critics later referred to as “clone-and-kill.” Clinton accepted this recommendation.

Assisted Suicide

In a 1998 memo, Kagan gave her thoughts on what the federal government’s response ought to be vis-à-vis Oregon’s first-in-the-nation referendum legalizing assisted suicide.

According to Burke Balch, director of NRLC’s Robert Powell Center for Medical Ethics, “We know that during the Clinton Administration, Kagan wrote that a federal law against assisting suicide would be a ‘terrible idea.’ That certainly suggests that she would be unsympathetic to recognizing and upholding the government interest in protecting the vulnerable, such as those with disabilities or who are old, from being pushed into ending their lives—an interest the Supreme Court unanimously recognized in 1997.”

Free Speech about Politicians

Opponents of government-imposed restrictions on speech about politicians are particularly concerned about an argument put forth by Solicitor General Kagan before the Supreme Court in 2009, in a case called Citizens United: that the federal government has the authority to ban incorporated groups from publishing pamphlets critical of candidates for office and expressing a view regarding whether they should be elected.

In a January 2010 ruling in the case, the Court rejected that position, and ruled 5–4 that the First Amendment protects the right of incorporated groups to spend money to express views about those who hold or seek federal office. Chief Justice John Roberts, in a strongly worded concurrence, specifically criticized the position that Kagan had defended, observing that this “theory of the First Amendment ... would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.”

Obama sharply criticized the Court’s ruling in Citizens United. In his May 10, 2010, remarks announcing Kagan’s nomination to the Supreme Court, President Obama specifically praised her work in the case, saying that “despite long odds of success, ... Elena [Kagan] still chose it as her very first case to argue before the Court.” Obama is pushing for rapid enactment of a bill (the “DISCLOSE Act”) that seeks to severely impede incorporated groups from exercising the right enunciated by the Court. (See the story on page 1 of this issue.)

Judicial Activism

Kagan’s views on specific issues such as those already mentioned are particularly alarming because there are indications from throughout her career that Kagan generally favors an activist, results-oriented approach to constitutional law. In her 1983 Oxford University thesis, Kagan wrote, “As men and as participants in American life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals. And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument—an instrument designed to meet men’s needs.”

Although Kagan goes on to say that “judicial decisions must be plausibly rooted in either the Constitution or another accepted source of law,” Severino with the Judicial Crisis Network asserts that the American people want a judge who will “not simply use the law as a fig leaf to lend legitimacy to their personal ‘opinions, prejudices, [and] values’ and to ‘mold and steer’ the law as they see fit.”

Similarly, in a later 1995 law journal article, Kagan wrote, “The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court’s decisions. If that is too results oriented ... so be it. ...” She also wrote that “it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value.”

Legal analyst Ed Whelan of the Ethics and Public Policy Center commented on Kagan’s judicial philosophy in National Review: “In a 1993 reflection on her clerkship with Justice Thurgood Marshall, Kagan celebrated Marshall’s view that the Supreme Court had freewheeling authority ‘to safeguard the interests of people who had no other champion’–indeed, that the Court ‘existed primarily to fulfill this mission.’ Complaining that ‘some recent Justices have sniped at [Marshall’s] vision’ of the Court and the Constitution–not just disagreed with it–she called that vision ‘a thing of glory.’”

Just four years ago, in 2006, Kagan praised as her “judicial hero” the former Israeli justice and judicial activist, Aharon Barak. Barak’s role as an activist judge was such that Judge Richard Posner of the Seventh Circuit Court of Appeals has called Barak “one of the most prominent of the aggressively interventionist foreign judges.” Posner said that “without a secure constitutional basis, Barak created a degree of judicial power undreamt of by our most aggressive Supreme Court justices ... .”

Judiciary Committee Hearings

When the Senate Judiciary Committee hears from Kagan, hopefully it will conduct its confirmation hearings in the spirit of the analysis Kagan offered in a book review she wrote for the University of Chicago Law Review:

“If recent hearings [on the nominations of Justice Ginsburg and Justice Breyer] lacked acrimony, they also lacked seriousness and substance. The problem was the opposite of what [author Stephen] Carter describes: not that the Senate focused too much on a nominee’s legal views, but that it did so far too little. ... When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

TAKE ACTION NOW!

The U.S. Senate Judiciary Committee is scheduled to begin hearings on June 28 on the nomination of Elena Kagan to serve as an associate justice on the U.S. Supreme Court. Please contact your two U.S. senators today, urging them to oppose confirmation of Ms. Kagan to this lifetime position.

* Call the U.S. Capitol Switchboard, 202-224-3121, and ask to be put through to the office of one of your two U.S. senators. If you are unsure who represents you in the U.S. Senate, just tell the operator which state you live in, and you will be given the correct names. After you’ve delivered your message to the staff of the first senator, repeat the process with your second U.S. senator.

* You can also express your opinions by calling senators’ district offices, and/or by sending them letters by fax. The various phone and fax numbers for most U.S. senators are available through the NRLC website Legislative Action Center at http://www.capwiz.com/nrlc/dbq/officials/
(To see how a senator has voted in the past on key pro-life issues, call up his or her profile, then click on the “Votes” tab.)

For updated alerts on this critical nomination, make frequent visits to the Legislative Action Center on the NRLC website at http://www.capwiz.com/nrlc/home/