Kagan - SCOTUS hearings, issues

http://www.washingtonexaminer.com/opinion/Kagan-is-no-Justice-Tabula-Rasa-97337839.html

Kagan's Manipulation [Shannen Coffin]

I generally don't comment on Supreme Court nominees by Democratic presidents, since it's not good business to be trashing judges who may be the deciding vote in some future case I have before the Court. (Yeah, a portrait of courage, I know).

But I make an exception this morning to highlight Elena Kagan's role, while a White House policy staffer, in writing what was sold to the Courts as a statement by a non-partisan medical association (the American College of Obstetricians and Gynecologists) on the medical necessity of "so-called" (the media's favorite qualifier) partial-birth abortion. Kagan played a central role in drafting language that was used by proponents of the abortion method to convince the Courts that the method was necessary and should not be banned.

Her role was never disclosed to the Courts, which relied on the very language she drafted in striking down partial-birth bans. It is an important story, and raises numerous questions about Kagan, about the abortion lobby, and the manipulation of science and the law.


Hatch on Blanche [Daniel Foster]

Cut-and-pasted from the live blog:

10:56 A.M.: Kagan won't answer whether she personally believes aspects of the Citizens United decision, especially whether restrictions on free speech based on the identity of one party (corporations, and unions) are often designed to restrict the content of that speech.

Kagan says campaign finance laws were "selfless" act of Congress, because all empirical evidence suggests union and corporate money protects incumbents.

"Tell that to Blanche Lincoln," Hatch says. "Lincoln is one of the nicest people around here who had ten million spent against her by the unions, just because they disagreed with her."


The War on Science [Yuval Levin]

If you haven’t read Shannen Coffin’s piece on Elena Kagan and the partial-birth-abortion debate today, you really should. What he describes, based on newly released Clinton White House memos, is absolutely astonishing.

It seems that the most important statement in the famous position paper of the American College of Obstetricians and Gynecologists—a 1996 document that was central to the case of partial-birth-abortion defenders for the subsequent decade and played a major role in a number of court cases and political battles—was drafted not by an impartial committee of physicians, as both ACOG and the pro-abortion lobby claimed for years, but by Elena Kagan, who was then the deputy assistant to the president for domestic policy.

Kagan saw ACOG’s original paper, which did not include the claim that partial-birth abortion “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman,” but, on the contrary, said that ACOG “could identify no circumstances under which this procedure . . . would be the only option to save the life or preserve the health of the woman.” She wrote a memo to two White House colleagues noting that this language would be “a disaster” for the cause of partial-birth abortion, and she then set out to do something about it. In notes released by the White House it now looks as though Kagan herself—a senior Clinton White House staffer with no medical background—proposed the “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman” language, and sent it to ACOG, which then included that language in its final statement.

What’s described in these memos is easily the most serious and flagrant violation of the boundary between scientific expertise and politics I have ever encountered. A White House official formulating a substantive policy position for a supposedly impartial physicians’ group, and a position at odds with what that group’s own policy committee had actually concluded? You have to wonder where all the defenders of science—those intrepid guardians of the freedom of inquiry who throughout the Bush years wailed about the supposed politicization of scientific research and expertise—are now. If the Bush White House (in which I served as a domestic policy staffer) had ever done anything even close to this it would have been declared a monumental scandal, and rightly so.

Apparently scientific integrity only matters as long as it doesn’t somehow infringe on abortion. That, of course, was always the lesson of the stem-cell debate in the Bush years anyhow. But clearly it started earlier. It’s good to know where Kagan’s priorities are. Let’s hope senators are paying attention.


Some A-B-C on Justice-to-Be Kagan [Jay Nordlinger]

Would just like to say a quick word about the nomination of Elena Kagan to the Supreme Court.

As we all know, elections, like ideas, have consequences. And the American people elected Barack Obama to the presidency. Therefore, we will get Supreme Court nominees like Sonia Sotomayor and Elena Kagan. We’re maybe lucky we didn’t get worse (in the case of Kagan; I regard Sotomayor as pretty much bottom-of-the-barrel, a paragon of left-wing legal-political correctness). With a big Democratic majority in the Senate, there’s essentially nothing we can do about these nominees. Obama has nominated the type of people you would nominate, if you were Obama. They reflect an Obama attitude toward law and society. And these ladies will be on the Court for a long, long time — longer than the Maine ladies (I love that phrase, for some reason) will be in the Senate.

Conservatives can consider themselves lucky that Sotomayor and Kagan have replaced liberal jurists, not conservative ones.

If the public doesn’t like the Obama sort of Supreme Court nominee, it has two options: elect a conservative majority to the Senate; vote Obama out of office. Both would be fine!

You can always count on me for the elementary or obvious stuff. One more word, concerning what conservative senators should do — do now. They should make all the points they can, as the hearings unfold — get their points of view across. Speak to the public. And then, when it comes time to vote . . . what?

Should conservatives observe the Obama principle? Or should they abide by some other standard? This is the Obama principle, as I see it: When he was in the Senate, he voted against both John Roberts and Samuel Alito. He said, in essence, “They are perfectly well qualified, in the traditional ways. But I’m not a traditional guy. They are conservative. Therefore, in my estimation, they are unfit to serve on the Supreme Court.”

Should conservative senators do that? Should they say, “Sure, so-and-so may be conventionally qualified — she doesn’t drool — but she’s a liberal”? Is tit-for-tat justified?

Or should conservatives rise above the Obama standard and say, “No, a president is entitled to his picks, and as long as they’re within some general, American pale — as long as they’re plausible — they’re okay”?

I haven’t totally settled that one, for myself. If I were in the Senate — why is no one urging me to run, why is no one raising funds? — I would.