AUL’s Kagan File: The “Questions for Kagan” Memo
By Americans United for Life
Friday, June 25th, 2010

MEMORANDUM

TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 25, 2010

RE: Elena Kagan File:  Questions for Kagan

Backgrounder:

When the confirmation hearings for Elena Kagan begin on June 28th, members of the Senate Judiciary Committee will have the opportunity to ask Kagan some very important questions.  Below are five “top” questions relating to the sanctity of life and judicial philosophy that Kagan must answer before she is confirmed to our nation’s highest court.

1. Judicial Philosophy. [Note:  Kagan has characterized Aharon Barak, a former Israeli judge who is infamous for his activist philosophy, as her “judicial hero”.  She also clerked for Justice Thurgood Marshall, who was an indisputably agenda-driven judge.][1]

Solicitor General Kagan, please describe your judicial philosophy, and specifically answer the following question: as a Supreme Court justice, would you respect the limited role given to the judiciary by the United States Constitution, or do you (a) agree with your “judicial hero” Aharon Barak that a judge “should adapt the law to life’s changing needs” and “may give a statute a new meaning” and (b) agree with your former mentor, Justice Thurgood Marshall, that a judge should “do what [he] thinks is right and let the law catch up”?

2. Political History. [Note:  Kagan has worked for pro-abortion candidates, judges, and public servants.  Further, while she worked in the Clinton White House, she repeatedly advised the President to take anti-life stances on legislation under consideration by Congress.][2]

Solicitor General Kagan, in light of your extensive history working for pro-abortion political candidates, judges, and public servants, including your work for President Clinton where you were specifically assigned abortion-related policy and consistently advised the President to take anti-life stances on measures under consideration in Congress, how do you expect the American people to believe that you can fulfill your obligation to be impartial as a justice when cases pertaining to the rights of the unborn come before the Court?

3. Constitutional views on abortion regulations. [Note:  During her service in the White House, Kagan held that a Partial Birth Abortion Ban under consideration by Congress, which was very similar to the ban upheld by the Supreme Court in 2007 in Gonzales v. Carhart, was unconstitutional.  She has also consistently expressed hostility towards limitations on abortion funding in her work for President Clinton, in her academic writings and in a memorandum to Justice Marshall].[3]

Solicitor General Kagan, please state for the record your understanding of the Court’s holdings in the following cases:  Gonzales v. Carhart, upholding the Partial Birth Abortion Ban of 2003 (which applied to the entire pregnancy and did not include a “health” exception), Rust v. Sullivan, upholding regulations that prohibit the use of Title X funds in programs that perform or promote abortion, and Harris v. McRae, upholding the Hyde Amendment, which limits the use of Medicaid and other funds for abortion.  In light of the holdings in these and similar cases, please answer the following:  (a) would you, as a Supreme Court Justice, follow the holdings in these cases, and (b) do you agree with the Court’s application of Roe v. Wade and Doe v. Bolton in each of these cases?

4. International and Comparative Law. [Note: Kagan has frequently spoken favorably about the value of examining international and comparative law.  Her “judicial hero,” Aharon Barak, has criticized the United States for not depending more on comparative law.][4]

Solicitor General Kagan, you have made many favorable statements about the importance of international and comparative law, and as Harvard Law School’s Dean you presided over curriculum reforms that made these subjects requirements.  Do you agree with your “judicial hero” Aharon Barak’s statement that judges should rely on other nation’s laws as “a basis for interpretive inspiration” when considering cases under the U.S. Constitution?

5. Other life issues. [Note:  Kagan recommended that President Clinton support a policy on human cloning that allowed the creation of cloned embryos for destructive research.  She also stated that she thought a federal ban on assisted suicide was a “fairly terrible idea”.][5]

Solicitor General Kagan, you recommended that President Clinton promote language that did not prohibit cloning human embryos for research purposes, meaning that the legislative proposal you supported did not prevent the destruction of human embryos, correct?  Why, outside of the context of abortion, did you support research that would kill a human being?

Further, why did you state that you thought a federal ban on assisted suicide was a “fairly terrible idea”?


[1] http://www.aul.org/2010/05/auls-kagan-file-the-judicial-hero-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-marshall-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-marshall-memo-redux/; http://www.aul.org/2010/05/auls-kagan-file-the-judicial-hero-memo-revisited/; http://www.aul.org/2010/05/auls-kagan-file-the-marshall-dissents-memo-part-1/; http://www.aul.org/2010/05/auls-kagan-file-the-marshall-dissents-memo-part-ii/; http://www.aul.org/2010/06/auls-kagan-file-the-proudest-association-memo/; http://www.aul.org/2010/06/auls-kagan-file-the-marshall-memo-number-5/;

[2] http://www.aul.org/2010/05/the-kagan-file-the-abortion-connection-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-pro-abortion-politicians-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-partial-birth-abortion-ban-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-abortion-record-memo/; http://www.aul.org/2010/06/auls-kagan-file-the-no-impartial-justice-memo/

[3] http://www.aul.org/2010/05/auls-kagan-file-the-abortion-funding-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-partial-birth-abortion-ban-memo/; http://www.aul.org/2010/05/auls-kagan-file-the-abortion-record-memo/; http://www.aul.org/2010/06/auls-kagan-file-the-no-impartial-justice-memo/

[4] http://www.aul.org/2010/06/aul%E2%80%99s-kagan-file-the-%E2%80%9Ccomparative-law%E2%80%9D-memo/

[5] http://www.aul.org/2010/06/auls-kagan-file-the-assisted-suicide-memo/; http://www.aul.org/2010/06/auls-kagan-file-the-human-cloning-memo/

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