Kagan Admits Authorship of Partial-Birth Abortion Memo

Elena Kagan, under questioning from Sen. Orrin Hatch, admitted that while serving as an adviser to President Clinton, she wrote a memo that has generated controversy because it suggests she lead an effort to politicize the science that was at the center of the partial-birth abortion debate.

Yesterday, National Review ran an article by Bush administration lawyer Shannen Coffin, disclosing documents which show that Kagan intervened to make sure that a supposedly non-partisan scientific statement on partial-birth abortion by the American College of Obstetricians and Gynecologists (ACOG) was more favorable to the Clinton administration’s point of view.

An earlier draft of the ACOG statement, Kagan warned at the time, would be a “disaster” — but the final draft adopted language that she suggested, and went on to play a crucial role in legal battles over the procedure.

Under questioning from Hatch, Kagan owned up to writing the memo, but denied that she intervened to pressure ACOG into changing its medical conclusions. She argued that in talks with ACOG, the group expressed two opinions on the procedure.

“What ACOG thought was that on the one hand, they couldn’t think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case,” Kagan explained. “But second, on the other hand, that they could think of circumstances in which it was the medically best, or medically most appropriate, procedure.”

She insisted that all she wanted to do was make sure that the ACOG’s views were, “accurately conveyed to the American public.” And responding to what she meant by calling the initial statement a “disaster,” she claimed, “the disaster would be if the statement did not accurately reflect all of what ACOG thought.”

Hatch told her that the matter “bothers me a lot.”

A transcript of today’s exchange, which picks up after Hatch asks her if she authored the memo, after the jump.


KAGAN: Well, I’ve seen the document, and the document and the document isâ€_

HATCH: But did you write it? Is that your memo?

KAGAN: The document is certainly in my handwriting. I don’t know whether the document is a product of a conversation I had with them. If I could just go back Sen. Hatch, this was an incredibly difficult issue for everybody who was associated with it, for obvious reasons. President Clinton had strong views on this issue, and what he thought was that this procedure should be banned in all cases except where the procedure was necessary to save the life or to prevent serious health consequences to the woman. And those were always his principles. And we tried over course of the period of time when this statute was being considered actually twice, to get him absolutely the best medical evidence on this subject possible. And it was not easy, because as everybody in Congress knows, different people said different things about this. There was conflicting evidence, and we tried to do our best to bring all the evidence, all the conflicting views, to his attention. In the course of that, we did indeed speak with ACOG. ACOG had an interest in this statute, and ACOG had views about this statute. What ACOG thought, and always conveyed to us, was two things. What ACOG thought was that on the one hand, they couldn’t think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case. But second, on the other hand, that they could think of circumstances in which it was the medically best, or medically most appropriate, procedure. That it was the procedure with the least risk attached to it in terms of preventing harm to the women’s health. And so, we knew that ACOG thought both of these things. We informed the president, President Clinton, of that fact. There did come a time when we saw a draft statement that stated the first of these things which we knew ACOG to believe, but not the second, which we also knew ACOG to believe. And I had some discussions with ACOG about that graph.

HATCH: Let me just ask that question again. Did you write, “this of course would be a disaster”? It’s in your handwriting. You didn’t get that from theâ€_

KAGAN: No, no, no, you’re exactly right, I didn’t realize that you were referring â€_No, yes, that’s exactly right. And the disaster would be if the statement did not accurately reflect all of what ACOG thought. Both, that there were two parts to what ACOG thought. And I recall generally, not with any great specificity, but recall generally, talking to ACOG about that statement, and about whether that statement was consistent with the views we knew it had because they had stated them. That it was both not the only procedure, but also that it was in some circumstances the medically best procedure. And in their final statement, that sentence, that it was not the only procedure, of course remained. Because that is what they thought. But we did have some discussions about clarifying the second aspect of what they also thought, which was that it was in some circumstances the medically most appropriate procedure. And so I think this was all done in order to present both to the President, and to Congress, the most accurate understanding of what this important organization of doctors believed with respect to this issue.

HATCH: Mr. Chairman, I just have one or two sentences I’d like to say. I tell you, this bothers me a lot, because I know there were plenty of doctors in ACOG who did not believe that partial birth abortion was an essential procedure, who believed that it was really a brutal procedure. And it was a constant conflict there. And as you know, many in Congress came to the conclusion that it was a brutal procedure too. It really was unjustified. That bothers me that you intervened in that particular area in that way. That’s all I’ll say about it, but I just want you to be aware that that bothers me.

KAGAN: Sen. Hatch, there was no way in which I would have or could have intervened with ACOG, which is a respected body of physicians to get it to change its medical views on the question. The only question we were talking about was whether this statement that they were going to issue accurately reflected the views that they had expressed to the president, to the president’s staff, to Congress and to the American public. I do agree with you, this was an enormously hard issue. And President Clinton found it so, and thought that the procedure should not be used except in cases where it was necessary for life or health purposes. And we tried to get him the best information we could about the medical need for this procedure, something that was not always easy. And tried in all the statements that he made to make sure and in any other statements we were aware of to make sure that that information was accurately conveyed to the American public.

Christie Doesn’t Want to “Demagogue” The Immigration Issue

Earlier this month, I dismissed chatter of a Chris Christie presidential candidacy in 2012 as implausible, arguing that it was far too early into his term as governor of New Jersey for such talk. But in this Politico interview, Christie reminds us of another barrier he’ll have to winning the Republican nomination. Although Christie has won praise among conservatives for his heroic budget battles, willingness to confront the unions, and no-nonsense style, as governor of a blue state, he’s going to have to take positions on some issues that will put him at odds with the more conservative presidential primary electorate. We saw this with Rudy Giuliani and Mitt Romney in 2008. 

In the Politico interview, Christie speaks of rebranding the Republican Party, and one of the issues he mentions is immigration:

On the hot-button topic of immigration reform, he said he has long declined to “demagogue” the issue as a former U.S. Attorney, because “I come from law enforcement and it’s not an easy issue.”

But he did intimate that he thinks stringent state-by-state laws — such as in Arizona — are the wrong approach, and added, “I think President Obama doesn’t do this at his own risk because it’s affecting the economy in the countryâ€_to me, I think the president’s really gotta show the leadership on this.”

“This is a federal problem, it’s gotta have a federal fix,” he said. “I’m not really comfortable with state law enforcement having a big role.” 

He said that without border security, enforcement of existing laws and a “clear” path to legalization for immigrants, there would never be a fix.

In practice, his preferred policy on immigration, which involves a path to citizenship, would likely put him to the left of where the primary electorate is. In the case of John McCain, the issue badly damaged him but did not prove fatal to his wining the GOP nomination. But it’s just another reminder of the obstacles any blue state Republican would face in a presidential primary.

Kagan: Estrada Is Qualified To Serve on SCOTUS

Elena Kagan on Tuesday afternoon offered warm praise for her friend Miguel Estrada, whose 2001 nomination to the U.S. Court of Appeals for the DC Circuit by President Bush was torpedoed by Democrats after more than two years of stalling tactics that included an unprecedented filibuster.

Under questioning from Sen. Lindsey Graham, Kagan recounted how she and Estrada were classmates at Harvard Law School who were required to sit next to each other their first year and remained friends ever since. She said Estrada took “extraordinary” notes, and she would always look over to him if she missed something in class.

“I think he is a great lawyer and a great human being,” Kagan said.

Graham read from a letter Estrada wrote in support of Kagan, which she said she found touching.

“I think those comments reflect what an extraordinary human being Miguel Estrada is and I was deeply touched when I read that letter. I was deeply grateful to him, of course. And all the nice things he said about me, I would say back about him double.”

You can read the letter here.

Graham then followed up by asking Kagan whether she thought Estrada was qualified to serve as a appellate judge.

“He’s qualified to sit as an appellate judge,” she responded. “He’s qualified to sit as a Supreme Ct. Justice.”

After that answer, Graham told Kagan, “your stock really went up with me.”

Kagan: “My political views are generally progressive”

It shouldn’t come as a surprise, but it’s worth noting that Elena Kagan openly acknowledged today that she holds liberal political views.

“In terms of my political views, I’ve been a Democrat all my life,” Kagan said in response to questioning from Sen. Lindsey Graham. “I’ve worked for two Democratic presidents. And that’s what my political views are.”

After further questioning, she added, “My political views are generally progressive.”

Graham also got her to go on the record as saying that there are consequences to elections and that she would expect a conservative president to appoint conservative judges.

“It would be hard to disagree that elections have consequences,” she said. “And should.”

Kagan: Citation of International Law “Appropriate” In Some Cases

Elena Kagan, under questioning from Sen. Chuck Grassley, said there were certain cases in which it would be “appropriate” for the Court to cite international law. As an example, she gave the Hamdi v. Rumsfeld case in which the Court ruled that U.S. citizens being detained indefinitely as enemy combatants must be granted the option of challenging their detention in court.

Here were her full comments, after Grassley asked, “If confirmed, would you rely on or cite international foreign law when you decide cases?”:

I think it depends. There are some cases in which the citation of foreign law, or international law, might be appropriate. We spoke earlier, I forgot with which of the Senators, about the Hamdi opinion. The Hamdi opinion is one in which the question was how to interpret the authorization for the use of military force. And Justice O’Connor in that case, one of the ways in which she interpreted that statute, was by asking about the law of war and what the law of war usually provides. What authority the law of war provides. And that’s a circumstance in which in order to interpret a statute giving the President various wartime powers, the Court looked at what the law of war generally provided. So there are a number of circumstances. I think, I mean, another example would be suppose the President has the power to recognize ambassadors under Article II. And there might be a question, well, who counts as an ambassador? And one way to understand that question is to look at what international law says about who counts as an ambassador. And that may not be determinative. But it would be possibly something to think about and something to cite.

Sessions is Right on Citizens United and Brown

Brian Beutler, reporter at the liberal Talking Points Memo, has a post mocking Sen. Jeff Sessions for comparing the Supreme Court’s Citizens United campaign finance decision to the Brown v. Board of Education decision that desegregated schools. But if you read Sessions’ actual comments, it’s pretty clear he was making the comparison on narrow grounds that both decisions overturned bad precedent.

Beutler quotes Sessions:

“[Marshall] was right on Brown v. Board of Education. It’s akin in my view to the Citizen’s United case. The court sat down and we went back to first principles–What does the Constitution say? Everybody should be equal protection of the laws,” Sessions told me after a Senate vote last night.

“Is it treating people equally to say you can go to this school because of the color of your skin and you can’t?” Sessions asked rhetorically. “We’ve now honestly concluded and fairly concluded that it violates the equal protection clause.”

How is that like Citizens United? “I think this Court, when they said ‘Wait a minute! If you’re talking about a precedent that says the government can deny the right to publish pamphlets, then we’ve got get rid of this one outlier case Austin — 100 years of precedent — and go back to what the Constitution [says].’ I don’t think that’s activism.”

Beutler adds, sarcastically, “And that, ladies and gentlemen, is how the prohibition on direct corporate expenditures to campaigns is exactly like forcing African-Americans to endure segregation, if you are Senator Jeff Sessions.”

Yet Sessions’ comments don’t attempt to compare the substance of the cases — or somehow say that the injustice of desegregation is the same as the injustice of corporate campaign expenditure restrictions. His argument is only that in both cases the Court found that existing precedent violated the Constitution, so they overturned those cases in favor of a the correct interpretation.

This argument was fleshed out recently by Heritage legal scholars Robert Alt and Hans A. von Spakovsky:

However, those criticisms ignore the fact that the Austin decision on independent expenditures and the part of the McConnell decision on electioneering communications were outliers in the Court’s First Amendment jurisprudence. The majority’s actions in Citizens United did not constitute judicial activism, but rather upheld basic First Amendment protections against unlawful encroachments by Congress. It is not judicial activism when a judge overturns two relatively recent decisions that were wrongly decided and that are in conflict with a long line of other precedents–particularly if the decision corrects constitutional errors. If this were not true, then the same critics of the Citizens United decision must believe that Plessy v. Ferguson[15] should still be the law of the land today and racial segregation should still be considered “constitutional” since under their slanted and sophomoric definition, the justices of the Supreme Court engaged in judicial “activism” in Brown v. Board of Education.[16] After all, the justices in Brown overturned Plessy and repudiated the “separate but equal” doctrine as unconstitutional–and arguably did so when they decided subsequent cases striking down similar policies by recalcitrant jurisdictions that acted contrary to Brown and its progeny.

Kagan Backs Cameras in the Supreme Court

Elena Kagan just vowed that if she were on the Supreme Court, she’d make the case to allow cameras in, arguing that it would be “terrific” for Americans to witness how it works, and how well prepared the participants are. 

“It would be the great thing for the institution, and a great thing for the American people,” she said.

Kagan Says Originalism vs. Living Constitution Isn’t “Either Or”

Sen. Herb Kohl just asked Elena Kagan whether she believed that the Supreme Court should make decisions based on the original intent of the framers, or see it as a living document. She responded that she doesn’t see it as an “either or” question. In some cases, she said, the Constitution is clear — such as the fact that Senators must be at least 30 years old, but other parts lend themselves to multiple interpretations. In the Heller gun case, she said that all nine justices looked at the original meaning of the Constitution, even though they came to different conclusions about original intent. When it comes to free speech, she said that the Court has interpreted the Constitition more broadly.

Kagan Stands By Opposition to DADT

Elena Kagan, under questioning from Jeff Sessions, just stood by her opposition to the military’s “don’t ask don’t tell” policy, calling it “unwise and unjust.” When she barred military recruiters from having access to the Harvard Law School office of career services, she said she was trying to abide by the school’s anti-discrimination policy and “protect” gay and lesbian students. Sessions argued that she acted outside her legal authority and only reversed herself once the school faced a loss of funding.

WV Secretary of State: No Special Election Until 2012

West Virginia Secretary of State Natalie Tennant has said that because the filing deadline for the 2010 election has passed, the special election to replace Robert Byrd will not be held until 2012. But get this — because Byrd’s seat would have been up in 2012 anyway, they’ll actually be two elections that year: one special election to fill the remaining few weeks of his term (until the new Senator is sworn in January 2013) and another election for a full six year term.

Here’s how Tennant explained it:

  “The State Code is an interesting document. Within Chapter 3 that focuses on elections, there are several sections that determine how vacancies are filled.

            “Section 3-10-3 states that for terms with more than two years and six months remaining, such as this one with Senator Byrd, the Governor will appoint a replacement who serves the unexpired term until a successor has been elected.

            “But that election will not be the 2010 General election. Part of this same section of code, requires the candidate to have filed during the filing period. That filing period has already passed. There was a legal case in 1994 decided by the West Virginia Supreme Court of Appeals that up held that position of requiring candidates to file during the filing period.

            “That means the election for the unexpired term would be the next election cycle which would take place in 2012. Candidates will be nominated in the primary and elected in the general of 2012.

            “That brings up an interesting situation. Because Senator Byrd’s seat would have been up for re-election in 2012, both the position for the unexpired term and full term will be on the ballot at the same time but are separate races. In fact it will be two separate elections. With the unexpired race being a special election because it would otherwise not have been on the ballot.

            “The winner of the unexpired term would serve out the final five weeks or so until the new term of Congress starts in January of 2013. Had Senator Byrd’s term not run out in 2012 there would not have been this unique situation. It would have just been for the unexpired term.