Tag archives: Elena Kagan

Elena What Memo? Kagan: Saletan Got One Big Thing Wrong

by Cathy Ruse

July 8, 2010

Theres a lot of buzz about Will Saletans incisive analysis of Elena Kagans role in shaping, from the White House, the medical conclusions of the American College of Obstetricians and Gynecologists on the partial-birth abortion method. (See full article, below.) The criticism of Kagan and ACOG is certainly welcome, especially coming from this pro-choice writer at this left-leaning magazine.

But Saletan is dead wrong on one central point: Kagan did substantively change the ACOG statement with the sentence she dictated to the organization. Before Kagans interference, the ACOG statement read:

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.

Before Kagan, partial-birth abortion was equal to or lesser than other methods in ACOGs view. With the addition of Kagans wording that it may be the best method in a particular circumstance, partial-birth abortion now became potentially better than other methods in the official view of ACOG. Saletan apparently doesnt understand that making it potentially best in some unnamed hypothetical situation was equivalent to making it definitively best in the view of the reviewing courts. Even a cursory reading of the lower court rulings shows that the Kagan best language was absolutely key to the courts reasoning in overturning the bans.

Ultimately, of course, the Supreme Court got past this politicized medicine and got the ruling right. But this revelation should be a permanent black eye for ACOGs reputation on any abortion-related issue in the future, and is proof that Kagan is a zealous pro-abortion political animal trying to disguise herself in judges robes.

http://www.slate.com/id/2259495/pagenum/all/#p2

When Kagan Played Doctor

Elena Kagan’s partial-birth abortion scandal.

By William Saletan

Posted Saturday, July 3, 2010, at 2:12 PM ET

Fourteen years ago, to protect President Clinton’s position on partial-birth abortions, Elena Kagan doctored a statement by the American College of Obstetricians and Gynecologists. Conservatives think this should disqualify her from the Supreme Court. They understate the scandal. It isn’t Kagan we should worry about. It’s the whole judiciary.

Kagan, who was then an associate White House counsel, was doing her job: advancing the president’s interests. The real culprit was ACOG, which adopted Kagan’s spin without acknowledgment. But the larger problem is the credence subsequently given to ACOG’s statement by courts, including the Supreme Court. Judges have put too much faith in statements from scientific organizations. This credulity must stop.

The Kagan story appeared Tuesday in National Review and CNSNews.com. You can read the underlying papers at the Media Research Center. There are three crucial documents. The first is a memo from Kagan on June 22, 1996, describing a meeting with ACOG’s chief lobbyist and its former president. The main takeaway from the meeting, Kagan wrote, was that “there are an exceedingly small number of partial birth abortions that could meet the standard the President has articulated,” i.e., abortions in which the partial-birth technique was necessary to protect a woman’s life or health. She explained:

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 optionwhether another abortion procedure or, in the post-viability context, birth through a caesarean section, induced labor, or carrying the pregnancy to termis equally safe.

The second document is a draft ACOG statement on “intact D&X” (aka partial-birth) abortions, faxed by ACOG to the White House on Dec. 5, 1996. The statement said that

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. Notwithstanding this conclusion, ACOG strongly believes that decisions about medical treatment must be made by the doctor, in consultation with the patient, based upon the woman’s particular circumstances. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women.

The third document is a set of undated notes in Kagan’s handwriting, offering “suggested options” for editing the ACOG statement. They included this sentence: “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.” This sentence was added verbatim to the final ACOG statement released on Jan. 12, 1997, which read in part:

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. 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.

The basic story is pretty clear: Kagan, with ACOG’s consent, edited the statement to say that intact D&X “may be the best or most appropriate procedure” in some cases. Conservatives have pounced on this, claiming that Kagan “fudged the results of [ACOG’s] study,” “made up ‘scientific facts,’ ” and “participated in a gigantic scientific deception.” These charges are exaggerated. The sentence Kagan added was hypothetical. It didn’t assert, alter, or conceal any data. Nor did it “override a scientific finding,” as National Review alleges, or “trump” ACOG’s conclusions, as Sen. Orrin Hatch, R-Utah, contends. Even Power Line, a respected conservative blog, acknowledges that ACOG’s draft and Kagan’s edit “are not technically inconsistent.” Kagan didn’t override ACOG’s scientific judgments. She reframed them.

But Kagan’s defense is bogus, too. On Wednesday, at her confirmation hearing, Hatch pressed Kagan about this episode. She replied that she had just been “clarifying the second aspect of what [ACOG] thought.” Progressive blogs picked up this spin, claiming that she merely “clarified” ACOG’s findings and made its position “more clear” so that its “intent was correctly understood.” Come on. Kagan didn’t just “clarify” ACOG’s position. She changed its emphasis. If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder.

At the hearing, Kagan said ACOG had told her that intact D&X “was in some circumstances the medically best procedure.” But that doesn’t quite match her 1996 memo about her meeting with ACOG. In the memo, she wrote that

we went through every circumstance imaginablepost- 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.

The language in this memo”imaginable,” “let alone,” the quotes around “necessary”depicts a conversation in which nobody could think of a real case where intact D&X was, as Kagan’s revision would later put it, “the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” Indeed, the participants doubted whether “anything at all” could meet Clinton’s standardnamely, a case in which intact D&X would be “necessary to preserve the life of the woman or avert serious adverse consequences to her health.” So Kagan’s statement at her hearingthat ACOG had said intact D&X “was in some circumstances the medically best procedure”considerably stretches the truth as she recorded it. It implies, contrary to her contemporaneous notes, that ACOG had affirmed a specific need for the procedure.

Kagan’s critics see her political meddling as a violation of science. The revised ACOG statement “was a political document, intended to bolster the case for partial-birth abortion, under the false flag of scientific objectivity,” says Power Line. National Review agrees: “Language purporting to be the judgment of an independent body of medical experts” was “nothing more than the political scrawling of a White House appointee.” These complaints are overboard. Science and politics aren’t mutually exclusive. The ACOG statement was largely scientific, and even Kagan’s insertion was more than political scrawling: It reframed but obeyed the constraints of ACOG’s objective beliefs.

But if conservatives are being naive about the relationship between science and politics, Kagan is being cynical about it. “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,” she told senators on Wednesday. With this clever phrasing, she obscured the truth: By reframing ACOG’s judgments, she altered their political effect as surely as if she had changed them.

She also altered their legal effect. And this is the scandal’s real lesson: Judges should stop treating the statements of scientific organizations as apolitical. Such statements, like the statements of any other group, can be loaded with spin. This one is a telling example.

National Review, CNSNews, and Power Line make a damning case that courts mistook the ACOG statement for pure fact. In 2000, when the U.S. Supreme Court struck down Nebraska’s ban on partial-birth abortions, it cited ACOG: “The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’” That sentence, we now know, was written by Kagan.

Four years later, when U.S. district judge Richard Kopf ruled against the federal partial-birth ban, he wrote:

I have summarized only the statements of the two leading national medical associationsthat is, the American Medical Association (AMA) and the American College of Obstetricians and Gynecologists (ACOG)regarding substantive medical questions, but only to the extent the statements reflected the considered medical opinion of such groups after an apparent professional inquiry. I did not summarize the policy views of these or other associations.

Kopf explained why he trusted the ACOG statement:

In forming the task force’s proposed ACOG Statement on Intact Dilation and Extraction, the members relied on their own education and expertise, obstetrics and gynecology textbooks, CDC information, published information on the safety of D&E and the D&X subset of D&E, and information about the safety of available alternatives. The textbooks were referenced for information about specific abortion procedures. The task force did not rely on information received from the public, did not interview or receive testimony from doctors, and did not draft and circulate individual position papers or statements for review and comment by other task force members. … Before and during the task force meeting, neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics addressed in the ACOG Statement on Intact Dilation and Extraction.

Kopf, like the rest of us, was apparently unaware that after the ACOG task force formulated its proposed statement, the statement was politically vetted and edited. Kagan’s memos and testimony confirm that ACOG consulted the White House and altered its statement accordingly. As a result, the statement reframed ACOG’s professional findings to support the policy views it shared with the White House.

All of us should be embarrassed that a sentence written by a White House aide now stands enshrined in the jurisprudence of the Supreme Court, erroneously credited with scientific authorship and rigor. Kagan should be most chastened of all. She fooled the nation’s highest judges. As one of them, she had better make sure they aren’t fooled again.

Tony Perkins Testifying at Elena Kagan Confirmation Hearing

by Carrie Russell

July 2, 2010

As one who has spent a number of years in uniform, as a Marine and a police officer, my remarks will focus primarily on Ms Kagan’s treatment of military recruiters at Harvard Law School.

As has been pointed out while Dean of the law school she defied the requirements of a federal law, known as the Solomon Amendment. Her violation of this federal law was motivated by her vehement opposition to the military’s prohibition against open homosexuality.

This protracted incident, combined with the just made public report of her re-writing of the medical findings of ACOG on partial birth abortion as advisor in the Clinton White House, raises doubts as to whether she possesses the requisite judicial temperament and impartial nature required of a Supreme Court justice.

We do not need a justice on the Supreme Court who sees it as her life mission to write the homosexual version of Roe v. Wade by striking down one-man, one-woman marriage across America. These positions and the temperament accompanying them make her unfit to sit as an associate justice on the Supreme Court. I urge the Senate to reject her nomination.”

Perkins’ complete prepared testimony can be viewed here.

Change Watch: Elena Kagan—Supreme Court Nominee

by Family Research Council

May 10, 2010

POSITION: Supreme Court nominee

NOMINEE: Elena Kagan

Born: April 28, 1960

Occupation: Dean of Harvard Law School and Charles Hamilton Houston Professor of Law at Harvard University.

Education: BA summa cum laude, Princeton University, 1981; MPhil, Worchester College, Oxford, 1983; JD magna cum laude, Harvard Law School, 1986

Clinton White House: 1995-1996 associate counsel to the President; 1997-1999 deputy assistant to the President for Domestic Policy; 1997-1999 deputy director Domestic Policy Council.

NOTE: From 1986 to 1987 Ms. Dean Kagan served as a judicial clerk for Judge Abner Mikva on the U.S. Court of Appeals for the D.C. Circuit. From 1987-1988 she also served as a judicial clerk for Supreme Court Justice Thurgood Marshall. Dean Kagan briefly served as a staff member for Michael Dukakiss presidential campaign. During the summer of 1993 she served as Special Counsel to the Senate Judiciary Committee to work on the confirmation of Supreme Court Justice Ruth Bader Ginsburg.

HOMOSEXUAL ISSUES

Gays in the Military

Last year candidate Barack Obama repeatedly opined that students should have military service opportunities on campus. However, President Obama’s nominee for solicitor general, Harvard Law School Dean Elena Kagan, believes the military should be barred from campus. In fact, she fought all the way to the United States Supreme Court, trampling on students’ constitutional rights all the way there, in order to deny qualified students the opportunity to serve our country … Kagan’s staunch ideological opposition to the military and providing qualified students the opportunity to serve puts her well outside of the mainstream. Even Bill Clinton, who dodged a military draft during Vietnam, signed the law Kagan opposes, the Solomon amendment, with overwhelming congressional and public support.

Solomon, simply put, seeks to facilitate voluntary military service by asking colleges and universities to allow students to meet with military recruiters on campus and to participate in the Reserve Officers’ Training Corps (ROTC). Schools whose policies or practices obstruct students from taking part are ineligible for federal funding.

Yet, Kagan, who has categorized the law as “immoral” at a 2003 Harvard student forum, argued in support of the position of the Forum for Academic and Institutional Rights, the so-called FAIR coalition, claiming elite schools have a right to taxpayer largesse while simultaneously barring the military - a radical view the Supreme Court unanimously struck down … Yet, leftwing views like Kagan’s still disparage the sacrifices our military makes and cause real, quantifiable harm to students and to our nation at taxpayer expense. According to Harvard’s annual financial statements, the school received $473 million of our hard-earned dollars during the 2003-4 school year, while FAIR, with Kagan’s help, won an injunction against the military in the Third Circuit. Harvard took another $511 million during the following school year and, for 2005-6, $517 million more as the Supreme Court heard and rejected FAIR’s claims.

Even Ruth Bader Ginsberg, a former American Civil Liberties Union lawyer and centerpiece of the liberals’ high court coalition, couldn’t find a way to justify these spurious, anti-student claims and recognized Congress’ ability to condition taxpayer spending. Flagg Youngblood, Solicitor General Flimflam, The Washington Times, January 30, 2009.

Hate Crimes

Believes courts should support hate crime laws and that when reviewing regulations of speech, courts could evaluate motive directly, they could remove the lions share of the First Amendments doctrinal clutter. Elena Kagan, Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 516 (1996).

In her 1993 University of Chicago Law Review piece, she wrote that proposed regulations on hate speech and pornography failed to adhere to the fundamental First Amendment principle of viewpoint neutrality that the government cannot favor certain private speakers or viewpoints over others. Her 1996 article on government motive in First Amendment cases has been cited more than 115 times an enviably high number for a secondary source. In that article she declares that the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting. David Hudson, Jr., Solicitor-general nominee: impressive First Amendment resume, FirstAmendmentcenter.org.

On Opposing Religious Institutions Involving Themselves In Pregnancy

As a young law clerk, Kagan, 49, once penned a memo saying it would be difficult for a religious organization to take government funding to counsel teenagers about pregnancy without injecting some kind of religious teaching. When a Senator asked her about the memo, Kagan did not hesitate to distance herself from its views, saying she had fresh eyes two decades later. I looked at it, and I thought, That is the dumbest thing I’ve ever heard, she said. Michael Sherer, Solicitor General Elena Kagan, Time, April 13, 2010.

On Questioning of Presidential Nominees

Kagan herself has called for the Senate to use confirmation hearings to engage nominees in meaningful discussion of legal issues. In her 1995 review (62 U. Chi. L. Rev. 919) of Stephen L. Carters The Confirmation Mess, Kagan argues that the critical inquiry that the Senate should conduct on a Supreme Court nominee concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution. Kagan draws as the fundamental lesson of the Bork hearings … the essential rightnessthe legitimacy and the desirabilityof exploring a Supreme Court nominees set of constitutional views and commitments.

Although Carters book and Kagans review focus heavily on Supreme Court nominees, they also address DOJ nominations (especially Clintons 1993 nomination, subsequently withdrawn, of Lani Guinier to be AAG for Civil Rights), and Kagans view of the Senates role applies fully to those (and other executive-branch) nominations. That, of course, is hardly surprising, as the case for careful scrutiny of the legal views of DOJ nominees, even if combined with greater deference to the president, seems widely accepted. Ed Whelan, Obamas SG Pick Elena Kagan, NROs The Corner, January 7, 2009.

On Lack of Experience

Kagan may well have less experience relevant to the work of being a justice than any justice in the last five decades or more. In addition to zero judicial experience, she has only a few years of real-world legal experience. Further, notwithstanding all her years in academia, she has only a scant record of legal scholarship. Kagan flunks her own threshold test of the minimal qualifications needed for a Supreme Court nominee. Ed Whelan, Supreme Court Nominee Elena Kagan, NROs Bench Memos, May 10, 2010.

On Being a Washington and Obama Administration Insider

There is a striking mismatch between the White Houses populist rhetoric about seeking a justice with a keen understanding of how the law affects the daily lives of the American people and the reality of the Kagan pick. Kagan is the consummate Obama insider, and her meteoric rise over the last 15 yearsfrom obscure academic and Clinton White House staffer to Harvard law school dean to Supreme Court nomineewould seem to reflect what writer Christopher Caldwell describes as the intermarriage of financial and executive branch elites [that] could only have happened in the Clinton years and that has fostered the dominant financial-political oligarchy in America. In this regard, Kagans paid role as a Goldman Sachs adviser is the perfect marker of her status in the oligarchyand of her unfathomable remoteness from ordinary Americans. Ed Whelan, Supreme Court Nominee Elena Kagan, NROs Bench Memos, May 10, 2010.

Goldman Sachs Ties

Solicitor General Elena Kagan was a member of the Research Advisory Council of the Goldman Sachs Global Markets Institute, according to the financial disclosures she filed when President Obama appointed her last year to her current post. Kagan served on the Goldman panel from 2005 through 2008, when she was dean of Harvard Law School, and received a $10,000 stipend for her service in 2008, her disclosure forms show. Matt Kelly, Possible Supreme Court pick had ties with Goldman Sachs USA Today, April 27, 2010.

Opposition by Liberals

Liberal legal scholars and experts stepped up their attacks Friday on Elena Kagan as a potential Supreme Court nominee, hoping to dissuade President Obama from selecting her in the last few days before an expected announcement early next week. A group of four law professors Friday morning published a piece at Salon.com criticizing Kagan, Obamas solicitor general, for hiring too few women and minorities when she was dean of Harvard law school. Liberal attorney and blogger Glenn Greenwald who has taken Kagan to task for her views on executive power and been the chief organizing force behind criticism of Kagan promoted the column on his Twitter account and kept up a drumbeat against Kagan… .Ive devoted everything I can to making the case against Kagan before Obama chooses, precisely because I know that once he makes his selection, the overwhelming majority of progressives and Democrats will cheer for her even if they have no idea what she thinks or believes, Greenwald said… .Prominent liberal legal scholar Erwin Chemerinsky made that very point this week in an interview. The reality is that Democrats, including liberals, will accept and push whomever Obama picks, said Chemerinsky, founding dean of the University of California-Irvine law school. Obviously, liberals hope that Obama will pick someone more from the left than the center. It cant be that Republicans pick conservatives and Democrats pick only moderates. John Ward, Liberal activists intensify attacks on Kagan as court pick nears, The Daily Caller, May 7, 2010.

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