Commentary Magazine


Kagan Hearing: Just Say No

That’s what Sen. Arlen Specter – unbound and without any re-election prospects — suggested the Senate do when confronted with a nominee like Elena Kagan who gives no real substantive answers. It took a defeat in a primary, but Specter has articulated a principled and highly defensible position.

As for the partial-birth-abortion controversy, Kagan fenced over whether the memo was even in her handwriting. (Is this supposed to increase our confidence in her credibility and forthrightness?) And then she gave an answer that is simply not believable: namely, that she was simply reflecting or summarizing the work of the medical experts. Shannen Coffin, who brought forth the issue, explains:

[A]ny 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.

Coffin is right to focus on Kagan’s own words. She admits that the factual basis for objecting to a partial-birth-abortion ban is bogus:

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. … 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.

Then she says that, nevertheless, facts shouldn’t stand in the way:

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.

So a report was crafted that did NOT reflect the ACOG’s views but instead supported the president’s political agenda. That Kagan participated in this is bad enough. That she allowed her work to be presented to a court as that of neutral experts was essentially a fraud. The ABA Model rules don’t specifically address this type of issue, but several — 3.3, 3.4, and 4.1 (an attorney shall not “fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client”) – make clear that a lawyer’s obligation is to prevent false information and specious arguments from corrupting the administration of justice. This Kagan did not do.

I don’t see how senators can conclude that this was ethical behavior or that she is entitled to sit on the highest court in the land.