Is Elana Kagen SCOTUS nomination in trouble ?

Republican filibuster possible ...

Sessions on Kagan [Robert Costa]

Washington, D.C. — After wrapping up the third day of Elena Kagan’s confirmation hearings, Sen. Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, tells National Review Online that he has “growing concerns” with President Obama’s Supreme Court nominee. “This nominee needs to address several very serious questions about the accuracy of her testimony, about whether she lets her personal agendas drive what she does,” Sessions says.

“She does not have the rigor or clarity of mind that you look for in a justice on the Supreme Court,” Sessions says. “She is personable, people-oriented, and conciliatory, yet she lacks a strict, legal approach. You want a mind on the court. She’s charming, delightful, and personable, but I don’t see that there.”

Sessions points to Kagan’s handling of the military’s “don’t ask, don’t tell” law while solicitor general as a major problem area. He wonders why she did not take action on two cases in which “don’t ask, don’t tell” was challenged. Kagan, for her part, defended her decisions, saying she acted “consistently with the responsibility” to “vigorously defend all statutes.”

Sessions is not convinced. “I have become more troubled after today,” he says. “On really tough matters, she becomes very political and acts less in a principled, lawful manner and more in a manipulative, political manner. That’s not what you need on the Supreme Court.” (More about this exchange from Ed Whelan here.)Sessions adds that Kagan’s responses about her association with a controversial partial-birth-

abortion memo (which Shannen W. Coffin wrote about here) “are another example” of the “nominee’s troubles.”“That document seems to indicate pretty clearly that she got panic stricken when the president got ready to sign the partial-birth-abortion bill,” Sessions says. “She went into high-speed action to talk him out of it.”


Coburn Calls Kagan 'Ignorant' on Commerce Clause, Says Filibuster Possible [Daniel Foster]

After a line of questioning on the Commerce Clause in which Elena Kagan appeared to embrace near limitless Congressional authority to regulate economic activity, Sen. Tom Coburn (R., Okla.) had strong words for ABC News, calling Kagan "ignorant" of relevant constitutional principles:

“I think the thing that's very worrisome is that she has a very expansive view of the Commerce Clause, and I find that she's ignorant of the Constitution's limitation of that, especially what our Founders wrote,” Coburn, R-Okla., told us.

“And her reliance was that, ‘Well, here's the precedent that's been set, and we can't go back to original intent,’ which comes back to another thing that she said earlier in the hearing — is that precedent trumps original intent. And I think most Americans would reject that. If that was the case, then we would have never had Brown vs. the Board of Education, and Plessy-Ferguson would still be the law. And to have a Supreme Court nominee that actually says precedent trumps original intent is worrisome, in my opinion.”

Coburn also said that Kagan could be filibustered:

“I wouldn't rule out a filibuster,” he said. “Look, my two main concerns are …: We're in trouble as a nation, and one of the reasons we're in trouble is the expansion of the federal government into areas that our Founders never thought we should be in. And we have a nominee to the Supreme Court that is fully embracing that and with no limits in terms of the Commerce Clause. So to me, that's very concerning. The second point I would make, again, is that she believes precedent trumps original intent. And she defended that. And so that — both those things are very concerning — should be very concerning to the American people.”
Full story here.



Kagan’s Explanation [Shannen Coffin]

I was unable to watch Kagan’s explanation of her role in the ACOG policy statement live, but I understand from Ed Whelan’s excellent coverage that she essentially brushed off the issue (as I predicted here she would), explaining that she was merely helping ACOG state more clearly what the evidence before it already showed. As I explained, however, there are reasons to doubt that. First, the ACOG task force — formed specifically and solely for the purpose of studying the medical efficacy of the procedure — met for two full days in October 1996, and the result of their collective work was a statement concluding only that it could identify no particular circumstances where the partial-birth method might be the only method to save the health or life of the mother, but that the committee thought it important to leave that judgment to the individual doctors — that is, a policy statement that Congress should stay out of it. After they deliberated in October 1996, the task force forwarded its draft statement to the ACOG board. It was only then that Kagan stepped in to suggest changes.Therefore, any suggestion that her work was merely the synthesis of the task force’s deliberations doesn’t account for that time line — she had no interaction with the task force itself, only the executive board of ACOG. Second and more significant, the White House had already met with ACOG’s former president and current chief lobbyist (to whom Kagan’s revisions were addressed) in June 1996, before the special task force was even formed. At that meeting (which apparently Kagan did not attend but recounted in a memo to her bosses, dated June 22, 1996), Kagan wrote that the White House staffers were basically told that ACOG couldn’t identify any particular circumstances where the procedure was medically necessary. But, to be fair, let’s quote her memo in relevant part:

2. Melanne, Todd, Jennifer Klein, John Hart, and someone from Betsy Myers’s office met a few days ago with the former President and the current chief lobbyist for the American College of Obstetrics and Gynecology (ACOG). For many months, the folks at ACOG had been unwilling to speak with us about the medical issues surrounding the partial birth ban, but Marilyn Yeager convinced them to do so, and this meeting was the result. It was something of a revelation.Two important points emerged from the meeting. First, there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated. 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; another option — whether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to term — is equally safe .. I will spare you all the medical details here. Suffice it to say that we went through every circumstance imaginable — post- and pre-viability, assuming malformed fetuses, assuming other medical conditions, etc., etc. — and there just aren’t many where use of the partial-birth abortion is the least risky, let alone the “necessary,” approach. No one should worry about being able to drive a truck through the President’s proposed exception; the real issue is whether anything at all can get through it.

Second and relatedly, of the five women who came to the White House, only two can truly say (though they all apparently believe) that the partial birth procedure was the least risky of their alternatives. Again, I’ll spare you the details, but the other three — all of whom were carrying malformed fetuses in the third trimester — could have given birth, either through induction or through carrying the fetus to term, without serious risk to their health. (The partial birth procedure in these cases was the least risky method of abortion, but this is not a strong argument, given that all these fetuses were post-viability -when most states, and the President himself, would prohibit all abortions except for life or health reasons.)

Those present at the meeting all agreed, on the basis of the thoroughness and care of the ACOG presentation, that these two points are probably just true, rather than a matter of medical opinion. (Betsy Myers and Jeremy Ben-Ami, neither of whom attended the meeting, have expressed the view that some other doctor might say something different.)At the same time, none of us think that this information should cause us to change the standard the President has articulated or the rhetoric he has used. The letters and written materials we have used are really pretty accurate — even though the proposed amendment the President has offered would allow fewer abortions than we knew. So too for the President’s oral statements. Melanne believes that an appropriate time, prior to the debates or when the veto becomes an issue again, we should make sure the President knows that some of the women’s stories are tighter than others; otherwise, she sees no need for any further briefing. I agree, but I also would keep a close eye out for — so we can clamp down quickly on — any extension of our rhetoric, whether by the President or others.


Congressman Smith vs. Kagan [Robert Costa]

Washington — Shannen Coffin’s NRO article on Elena Kagan and abortion has Capitol Hill abuzz. Rep. Chris Smith (R., N.J.) tells us that the article shows an “outright fraud perpetuated on the American people.”

“She manipulated the American College of Obstetricians and Gynecologists for total political purposes,” Smith says. “She’s totally pro-abortion, yes, but she’s also deceptive, and that’s a very bad combination.”The Senate GOP should “press this aggressively,” Smith says. “It’s a character issue.” Smith says he will share the Coffin piece with more of his colleagues today.



More on Kagan and Partial-Birth Abortion [Shannen Coffin]
One of the defenses of Kagan’s revisions to the ACOG statement is that they really were just editorial, that they didn’t change the thrust of the statement. Let’s look at that argument.The statement, prior to Kagan’s edits, reads in relevant part as follows: “However, a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.” Kagan did not delete that sentence (and I never suggested she did). It remained in ACOG’s final statement. What she changed was the following sentence, which had read: “Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based on the woman’s particular circumstances.” That innocuous statement is little more than a statement of policy; ACOG was simply saying that, notwithstanding their inability to find any medical circumstances in which the procedure would be the only appropriate procedure, the medical association’s board concluded that the doctor should still have medical discretion to use the procedure, and a legislature shouldn’t get involved. Fair enough. What Kagan did was insert a statement of medical opinion into that sentence. Her full suggested edit was: “An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination.” ACOG’s final statement adopted the first half of that sentence in toto. The final sentence read: “An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman’s particular circumstances can make this decision.” There is little question that Kagan’s edit changed the substance of the ACOG statement, not merely its policy implications. Previously, the draft had read that there were no such medical circumstances in which it was the only method to save the health or life of a woman; Kagan inserted language to water down or hedge that medical opinion, asserting — notwithstanding what her notes had shown regarding the lack of evidence regarding such circumstances — that the procedure still “may be the best or most appropriate procedure in particular circumstances.” That is not a statement of policy; it is a statement of medical opinion. Any attempt to downplay the significance of these revisions misses the mark. Remember that it was Kagan’s specific language the Supreme Court seized upon in striking down the Nebraska ban. As that opinion concluded, “Casey’s words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion — differences of a sort that the American Medical Association and American College of Obstetricians and Gynecologists’ statements together indicate are present here.” The Court relied on ACOG’s policy statement (which ACOG expanded on in its amicus brief) to find a division of medical opinion:
For another thing, the division of medical opinion about the matter at most means uncertainty, a factor that signals the presence of risk, not its absence. That division here involves highly qualified knowledgeable experts on both sides of the issue. Where a significant body of medical opinion believes a procedure may bring with it greater safety for some patients and explains the medical reasons supporting that view, we cannot say that the presence of a different view by itself proves the contrary. Rather, the uncertainty means a significant likelihood that those who believe that D&X is a safer abortion method in certain circumstances may turn out to be right. If so, then the absence of a health exception will place women at an unnecessary risk of tragic health consequences. If they are wrong, the exception will simply turn out to have been unnecessary.
Again, in Gonzales v. Carhart (the later case upholding the federal ban), Justice Ginsburg’s dissent cited ACOG more than half a dozen times. The first citation, in the introduction to her opinion, decried the majority for disregarding ACOG’s opinion: “Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG).”There is little question that ACOG was going to say whatever it took to get the ban struck down. Its amicus brief did its best to identify circumstances where the method was the best or most appropriate — although those allegations were never tested in the Stenberg litigation, which raises serious questions about the creation of “evidence” in amicus briefs. But there is also little question that the involvement of a White House policy staffer in the process tainted the reliability of ACOG’s supposedly nonpartisan medical opinion. Kagan’s edits were designed to assert a medical opinion that was completely at odds with the draft she had been given. She recognized that the draft statement would be a “disaster” — so, in her own view, her edits were necessary to avert that disaster.