AUL’s Kagan File: The “Week Six” Memo
By Americans United for Life
Monday, June 21st, 2010

MEMORANDUM

TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 21, 2010

RE: Elena Kagan File: Summary of File June 15-18

Backgrounder:

Today’s file document is a summary of our memos from last week (June 15th through June 18th).   Our full analyses, including citations, for each of these documents are linked below.

1. The “No Impartial Justice” Memo – Kagan was one of President Clinton’s primary advisors on the formulation of the President’s policy in response to Congressional attempts to regulate the use of partial-birth abortion, and she also advised President Clinton on other legislative
proposals that implicated abortion rights.

First, Kagan thought the President was “too lenient” on what he would accept in a partial-birth abortion ban, even though the ban he was willing to accept would not necessarily prevent any woman from having an abortion.

She also argues that “the [pro-abortion] groups will go crazy” if Clinton does not do what they want… In other words, she did not want to disappoint the pro-abortion groups.  Instead, she recommends that the President’s ban have an even broader “health” exception, which would have the effect of limiting even fewer abortions.

Second, Kagan was undeterred in her opposition to meaningful limitations on partial-birth abortion even after discovering that the American College of Obstetricians and Gynecologists (ACOG) could not find a legitimate need for it. She opposed the release of a truthful proposed statement by ACOG that partial-birth abortion is never medically necessary, stating that “the release of the statement, of course, would be [a] disaster — not the less so (in fact, the more so) because ACOG continues to oppose the
legislation.”

Third, Kagan was in tune with Capitol Hill politics and clearly sided with pro-abortion lawmakers over pro-life lawmakers.  In a series of memos in 1997 and 1998, Kagan addressed the progress of other abortion-related proposals on Capitol Hill, and described how the White House was concerned about or was trying to block pro-life legislation.

2.The “Comparative Law” Memo Kagan’s emphasis on international and comparative law presents yet another similarity to her “judicial hero,” Judge Aharon Barak. While dean of Harvard Law School, Kagan viewed comparative law as important enough to support requiring law students to study it (Note:  Kagan did not require law students to take U.S. Constitutional Law).  Would Kagan include comparative law in her “interpretive field of vision” (as Barak suggests it be used) as a Supreme Court Justice?  Further, would she follow her judicial hero’s advice to consider how other legal systems treat questions that come before the Court?

Importantly, Barak argues that judges should look to foreign countries’ constitutions to determine how to rule on important issues, like
abortion, under their own constitutions. Would Kagan rely on foreign constitutions to “inspire” her judicial opinions on issues like abortion under the U.S. Constitution?

Barak regrets that judges in the United States have made little use of comparative law.  He urges them to do so.  If confirmed, would Kagan follow Barak’s advice?

3.The “Oxford Thesis” MemoIn her graduate thesis, Elena Kagan spends considerable time analyzing the Warren Court (1953-1969).

Kagan describes the Warren Court as “a court with a mission… to correct the social injustices and inequalities of American life … [and] to transform the nation.”  Kagan states that “the Warren Court justices set themselves a goal…and they steered by this goal when resolving individual cases.”

Kagan states: “U.S. Supreme Court justices live in the knowledge that they have the authority to command or to block great social, political and economic change. At times, the temptation to wield this power becomes irresistible. The justices, at such times, will attempt to steer the law in order to achieve certain ends and advance certain values.”

This raises the question of whether Kagan believes “steering the law” to achieve specific ends is legitimate.  She should be questioned on her views regarding the Warren Court’s actions and the role of the judiciary. Would she “engineer significant domestic reform” as a Justice?

Kagan says: “Judges are judges, but they are also men…As men and as participants in American life, judges will have opinions, prejudices,
values.  Perhaps, most important, judges will have goals.  And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid.”

The Committee should ask Kagan what her “goals” would be if confirmed to the Supreme Court.  What “ethical values” would she “promote” if confirmed?  And what “social ends” would she seek to achieve?

4. Kagan, Marshall,and Harris v. McRaeThirty years ago, on June 30, 1980, in Harris v. McRae (a case argued by Americans United for Life), the Supreme Court upheld the Hyde Amendment which is a federal restriction on the use of Medicaid funds for abortion.

In Harris, the Court held that Congress’ distinction between abortion and other medical procedures was valid because “[a]bortion is inherently different from other medical procedures, because no other procedure involves the purposeful termination of a potential life.”

Justice Thurgood Marshall dissented, arguing “denial of a Medicaid-funded abortion is equivalent
to denial of a legal abortion altogether.”  Marshall would have had the tax-payer funding abortions through Medicaid.

Justice Marshall viewed abortion as a vital part of health care for women, and rejected the Court’s holding that abortion was “inherently different from other medical procedures.”  He held this view through the end of his term on the Court.

Elena Kagan described Justice Thurgood Marshall’s constitutional interpretation as “a thing of glory.” However, the reality of Justice Marshall’s decisions concerning abortion are quite extreme.

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