AUL’s Kagan File: The “Week Five” Memo
By Americans United for Life
Monday, June 14th, 2010

MEMORANDUM

TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 14, 2010

RE: Elena Kagan File:  Summary of File June 7-11

Backgrounder:

Today’s file document is a summary of our memos from last week (June 8th through June 11th).   Our full analyses, including citations, for each of these documents are linked below.

1. The “Governmental Motive” Memo

  • In a law review article, Elena Kagan argued that First Amendment doctrine is focused not on the effects of a legislative enactment, but on the motive of the government actor.  Looking for governmental motive invariably involves looking for bad motives, i.e. reasons to strike down an enactment by legislatures.
  • Pro-abortion academics and judges have long sought to impose an “anti-abortion motive” analysis to invalidate state abortion regulations.  For example, Supreme Court Justice Harry Blackmun applied a motive analysis to strike down abortion health regulations in 1986 in Thornburgh v. American College of Obstetricians & Gynecologists.
  • The “anti-abortion motive” analysis hasn’t been applied by a Supreme Court majority since.  However, a slight tilt in the Court could change that.
  • The search for legislative “motive” has many problems. It is often a pretext for finding a reason to strike down legislation which has been passed by accountable, elected representatives.
  • Kagan’s affinity for the search for the highly subjective legislative “motive” is disconcerting.  Along with her disdain for the much more objective, disciplined and broadly accepted inquiry into “legislative intent,” it exalts judicial freedom in “interpreting” laws enacted by the representative branches.
  • As such, it is another indication of Elena Kagan’s deep admiration for judicial activism and for judges who have an exaggerated view of their role in transforming society.

2. The “Assisted Suicide” Memo

  • In 1997, following the State of Oregon’s failure to repeal its law legalizing physician assisted suicide (PAS), some members of Congress responded by supporting a federal ban on the practice.
  • In a hand-written note at the top of a DOJ memorandum, Elena Kagan wrote that she thought making physician assisted suicide a federal crime was “a fairly terrible idea.”
  • While two states, Oregon and Washington, have legislatively legalized physician assisted suicide, a decision by the Montana Supreme Court effectively made Montana the third state with legal assisted suicide.
  • If physician assisted suicide becomes legal in more states, legislatively or through state courts, activist U.S. Supreme Court justices might determine that “societal changes” or a new “social consensus” require revisiting the Court’s decisions in Washington v.Glucksberg and Vacco v. Quill, which held that there was no right under the US Constitution to assisted suicide.

3. The “Human Cloning” Memo

  • During the time that Elena Kagan served as a top domestic policy advisor for President Bill Clinton (1997-1999), she played a key role in shaping and executing the President’s response to the development of new cloning technology.
  • Kagan and Jack Gibbons wrote to President Clinton on June 8, 1997:  “[Y]our bill would not ban the creation of cloned embryos for research purposes.”
  • Also on June 8, 1997, Todd Stern (Staff Secretary) wrote in bold-face type in a memo to Clinton:  “[t]he attached Kagan/Gibbons memo recommends that you follow NBAC in not banning the cloning of embryos for research.”
  • The cloning of human embryos creates living human beings in the earliest stage of development.  “Using them for research” means they will be “disaggregated” and killed as part of the research.  By endorsing such practices, Kagan demonstrated her disrespect for unborn human life.
  • Kagan and Gibbons stated in a memo that they saw “no moral rationale for treating embryos created through cloning differently from embryos developed through other means (e.g. in vitro fertilization) when embryos are used solely for research.”
  • While the life-affirming response to this would be to ban the destruction of all human embryos for research, they worry instead that halting such destruction might inhibit research.
  • In other words, they put pragmatism over ethics, willing to sacrifice human life in the pursuit of other goals.
  • The Clinton library records indicate that over the course of several months, Kagan was in frequent dialogue with other administration officials about the content of Clinton’s legislative language, which Congressional proposals they should support or oppose, and how much they could work with Senate Republicans.

4. The “Agenda-Driven Judge” Memo

  • Agenda-driven judging entails deciding cases based on one’s own political and social ideology rather than the Constitution.  One need only look at how the judge decides a case to determine if he or she is an agenda-driven judge — is the judge making a reasonable inference based on the text and structure of the Constitution or statute?  Or, is a judge  deciding based on what he or she believes “justice” requires?  If the latter, the judge is probably an agenda-driven judge.
  • As Justice Thurgood Marshall (an ardent and unabashed agenda-driven judge and one of Elena Kagan’s mentors) described his judicial philosophy, “You do what you think is right and let the law catch up.”
  • Agenda-driven judging has been devastating to the lives of unborn children. The court in Roe v Wade cloaked itself with the Constitution, but only to achieve what it wanted to achieve, the legalization of abortion.
  • Elena Kagan has no judicial record to review to determine whether she will be an agenda-driven judge.  However, Kagan’s mentor, Justice Thurgood Marshall whom she deeply admired and whose jurisprudence she called “a thing of glory”, argued in 1977’s Beal v. Doe for extending the Equal Protection Clause to mandate tax-payer funded abortions.
  • Kagan has also stated that her “judicial hero” is former President of the Supreme Court of Israel, Aharon Barak. The Honorable Justice Richard Goldstone has said that Barak is “unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”
  • Barak laments the use of “originalism” by the American Supreme Court, which means simply trying to understand a text as the authors intended it, stating “[w]hy can some enlightened democratic legal systems (such as those of Canada, Australia, and Germany) extricate themselves from the heavy hands of intentionalism and originalism in interpreting the constitution, while constitutional law in the United States remains mired in these difficulties?”
  • Yet, despite his wild theories, his association with Harvard Law School was for Kagan the one of which she, when Dean, was “most proud.”

For more information on the rest of AUL’s legal research on Elena Kagan, visit SCOTUS.aul.org.

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