Politics Over Women’s Rights: Kagan in the Clinton White House

Jodi Jacobson

Kagan is being described as a "political pragmatist."  When centrism, pragmatism, and "moderation" are a foil for "what's good for me," we need to be worried. 

The terms “centrist,” “pragmatist,” and “moderate” most often are used these days to describe politicians who make deals based on their own political calculations (e.g. what is good for them and their re-election campaigns, or what is best for the corporations or largest donors to their campaigns). 

Rarely, these days, do I see that label attached to someone who stood for something clear and progressive, fought for their principles as long as they could, and then made what compromises were necessary to do the greatest good for the greatest number.  I personally have been deeply disappointed in the Obama White House because of their own default to “pragmatism” over values, as evidenced in the pattern of pre-emptive capitulation on almost every issue from health care to climate change.  What is good for people is not always good for politicians, but the latter considerations invariably come first.

So it is both deeply troubling and simultaneously not surprising to realize that the only things we can know about Elena Kagan is that she was a “political pragmatist” in the Clinton White House when it came to women’s rights.

Yesterday we learned that Kagan–and let’s face it, the Clinton White House–did not stand for and fight as much as possible for pro-choice principles but rather stood for the president’s own political gains at the expense of women when it came to legislative bans on late abortion.

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Today we learn that she took “centrist stances in several battles over issues like abortion and family leave when other administration officials or allies were pressing for a more aggressively liberal approach,” according to a report by Politico based on documents at the Clinton Presidential Library.  In short, they “sadly” (their words) sold poor women down the river for political reasons, something that happens time and again.

Josh Gerstein writes that the documents “could underscore concerns among some liberal activists that Kagan was an advocate of the policy triangulation of the Clinton White House and thus might not be a reliably liberal vote on the court.”

A 1998 memo shows that Kagan was among advisers encouraging Clinton to deny Medicare funding for abortions in cases of rape or incest – in part to avoid a messy battle with Republicans.

At the time, Medicare rules covered abortion only where the mother’s life was in danger, and women’s groups and the Department of Health and Human Services wanted to expand the coverage.

Leaving the stricter standard in place “may expose us to criticism about non-coverage of extremely sympathetic cases involving vulnerable and disabled women,” the memo from domestic policy chief Bruce Reed and counsel Charles Ruff to Clinton said. “This option will anger women’s groups which would prefer us to provide Medicare coverage of the widest possible range of abortions, even if doing so would provoke the Republicans to enact contrary legislation.”

“DPC (Bruce, Chris [Jennings], and Elena) and OMB support [the stricter option] because (1) it is most consistent with this Administration’s prior practice on government funding of abortions and (2) it stands the best chance of avoiding a high-profile legislative battle…that we are unlikely to win,” the memo said. A left-handed check mark shows Clinton took the advice.

“It was a tough call to make because some of the cases were very sad” involving women who had been raped in mental institutions, said Jennings, Clinton’s top health care adviser. “But some of the issues were not just a question of what lines you draw, but what would happen on the Hill with a Republican Congress, what kinds of things would attract a reaction that’s actually worse.”

The question of “what lines you draw.” Women being raped in mental institutions…did anyone, in the course of considering fights on the hill, discuss this publicly as a human rights and political issue?  Or was it just buried as one more set of collateral damages of women’s right sacrificed to what was best for politicians?  Was anyone in the broader public made aware of this as an issue?

What considerations go into “what lines you draw” when it comes to the rights, health, and lives of women, including but not limited to rape victims in mental institutions? That they won’t be heard anyway? (Let’s just be clear we are talking about perhaps the most defenseless rape victims, people already institutionalized and therefore invisible, already stigmatized and discriminated against, but who clearly  are not likely to be a major political force at the polls, nor even get media attention to their plight?)  Of course, they are at once perhaps most vulnerable but also emblematic of a broader problem in any articulation of women’s rights by the Democratic party.

Gerstein also refers to the issue of late-abortions, on which we reported yesterday.

Another memo from May 1997 suggests Kagan’s political pragmatism – showing that she encouraged Clinton to endorse an abortion-related legislative proposal by Sen. Tom Daschle (D-S.D.) even though it was opposed by abortion rights groups and viewed as unconstitutional by the Justice Department.

Daschle’s language was a substitute for a so-called partial-birth abortion ban being pushed by Republican leaders. It would have allowed late-term abortions only where a doctor certified pregnancy would “risk grievous injury” to the mother’s health.

Clinton had been on record for years opposing the “partial-birth” procedure, but he insisted on creating an exception to allow the procedure for cases where it was medically needed.

Women’s groups complained that Daschle’s requirement for creating that exception went too far. But in a memo co-written with Reed, Kagan painted the endorsement of Daschle’s language not necessarily as good policy but as the best way of heading off the chances that an even stricter anti-abortion measure would clear Congress with a veto-proof majority.

“Not necessarily as good policy.”  One might be forgiven for thinking that “good policy” would be what’s good for real people. Here it is clearly what is good for politicians.

Of course, these are the issues of greatest concern when evaluating whether we want Elena Kagan to be on the Supreme Court for the better part of the next 30-plus years. Still…

White House officials did not comment on specific memos but have publicly described Kagan as a “pragmatic progressive” and suggested perceptions that she’s a centrist largely reflect her keen sense of what is politically achievable.

What is “politically achievable” is not a static concept or reality.  What is “politically achievable” is a condition created by people of courage who make clear their values and principles, are not afraid to articulate them, and fight for them as far as they can reasonably go.  What is politically achievable is created by movements that press for change and politicians accountable to them.

The real issue here is “what is best for the politician who wants to stay in office,” and how a “politically pragmatic” Supreme Court nominee who has never, apparently, articulated a position on anything will operate in securing our basic rights.  And clearly, that is one reason Obama chose her.

Whose lives matter more?  Whose priorities are on the table?  The “pro-choice” president and advisers who will never engage a fight on behalf of women?  Or the people those politicians are supposedly there to represent?  And what does this kind of “political pragmatism” tell us about Elena Kagan, about whom little is known?

Just askin’.

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