See other coverage by Rewire on Elena Kagan’s nomination to the Supreme Court, including analysis of her work on choice issues in the Clinton White House, analysis of her record by the anti-choice community, and a “progressive’s defense” of Kagan’s nomination.
Opening Day of Supreme Court Nomination Hearing season began with statements by nominee Elena Kagan bookending the prepared remarks of Senators from both parties, who, ironically as some have noted, seem to be speaking more to caricatures of Kagan created for political theater and the purpose of maintaining a “united front” on the respective ideologies of both parties, rather than any serious exploration or understanding of who Kagan is and what she stands for on practical issues now facing the Supreme Court and likely to come up in the next several years.
On the face of it, Kagan is as the Washington Post’s Eva Rodriguez points out, a nominee that, Democrats “should hate and the GOP should love.”
“Imagine the outrage from the left,” writes Rodriguez, “if a Republican president nominated someone to the Supreme Court who argued:”
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that the ruling that gave Guantanamo detainees the right to challenge their incarceration in federal court should not apply to those captured in other countries and shuffled off to the Bagram military prison in Afghanistan;
urged the Supreme Court to block a federal trial judge’s order to free into the United States Chinese Muslims who’ve been held unjustly at GITMO for nine years and can’t be returned to their homeland for fear they’d be tortured;
advocated for prosecution of a former administrative law judge who wants to turn a U.S.-designated terrorist group away from violence by advising it on how to use lawful and peaceful means to advance its political agenda.
Instead, Rodriguez points out:
Democrats apparently really, really like her, as evidenced by their effusive praise and absolute lack of criticism or skepticism of conservative positions she’s taken as solicitor general on such matters as indefinite detention and anti-terrorism laws.
And, “Republicans — with the exception of South Carolina’s Lindsey Graham — apparently aren’t aware of these conservative positions or are ignoring them because they don’t fit neatly into their caricature of Kagan.”
Instead, they attempt — unsuccessfully — to paint Kagan as a scary, unqualified, anti-military activist who’s eager to join liberal justices in rewriting the Constitution in their own image and for their own gains.
But while Republican and Democratic Senators and the Administration may be presenting their respective united fronts, the hearings–and questions–began today with an enduring undercurrent of concern from some quarters of the progressive community on civil and reproductive rights issues, many of which may not be answered before a final vote on the Kagan nomination is taken.
In an artlcle published in Sunday’s Washington Post, reporter Amy Goldstein wrote:
On the eve of Elena Kagan’s Senate confirmation hearings, her record on race in the Clinton White House and at Harvard Law School is producing discomfort among some leading civil rights organizations, leaving them struggling to decide whether they want her to join the Supreme Court.
“Decades after the height of the civil rights movement,” continues Goldstein, “questions involving race and ethnicity persist as a recurrent theme before the Supreme Court, and attitudes on those issues remain a significant prism through which nominees are evaluated by those on the left and the right.”
The National Bar Association, the main organization of black lawyers, gave Kagan a “lukewarm” rating and has not endorsed her, and others, such as the Mexican American Legal Defense and Educational Fund, have raised concerns about the “fragmentary evidence” of her beliefs on core issues. “Others,” notes Goldstein, “have parsed Kagan’s public statements and actions and said they are uneasy.”
Concerns about Kagan’s judicial philosophies on key issues, especially at this moment in time of the Court’s evolution, also have been raised by reproductive rights groups.
After reviewing relevant publicly available documents by Kagan, for example, the Center for Reproductive Rights raised questions about her positions on a woman’s right to choose whether and when to become a mother, and called on the Senate to inquire more deeply into her current views on constitutional protections for abortion throughout the confirmation process.
The CRR analysis notes:
Kagan’s record documents her agreement with the general proposition that the Constitution affords a right to abortion. Her positions on the specific contours of that substantive right are less discernable. Indeed, some of her writings raise questions about the depth of her consideration of the significance of reproductive rights to women’s health, lives, and equality. That said, only speculative conclusions can be drawn from the record given the limited, and at times political, purposes for which the memos at issue were written, and the length of time since she authored them.
Among the conclusions drawn by CRR’s review of Kagan’s documents are:
Kagan’s record suggests she would have struck down the Title X gag rule.
Title X, established in 1970, provides public funding for reproductive and other preventive health services, including contraception, treatment of STIs, screening for breast and cervical cancer, pregnancy tests and counseling, and educational programs.
In 1988, the Secretary of Health and Human Services imposed a “gag rule” prohibiting Title X physicians and counselors from discussing abortion as an option with their patients — even if asked about it directly–but simultaneously compelled a Title X provider to refer all pregnant patients to prenatal care or social services providers who “promote the welfare of . . . [the] unborn child.”
The gag rule was challenged in Rust v. Sullivan, but the Supreme Court, by a 5-4 vote, rejected the argument that the regulations discriminated on the basis of viewpoint (i.e., penalizing only particular opinions on a certain subject), and were therefore unconstitutional under the First Amendment. Instead, the Court held that the government can choose which activities to subsidize, and that by enacting the gag rule, “the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.”
Kagan, writing in a 1992 law review article, reasoned that the Title X regulations “at issue in Rust can hardly be understood except as stemming from government hostility toward some ideas (and their consequences) and government approval of others . . . . [and that] the regulations, in treating differently opposing points of view on a single public debate, benefited some ideas at the direct expense of others and thereby tilted the debate to one side.”
In other words, CRR notes:
Kagan agreed with the petitioner’s argument in Rust that the gag rule — which censored one view and commanded another — constituted invidious viewpoint discrimination. Had the Court applied Kagan’s framework to Rust, the case would have struck down the harmful and discriminatory restrictions as violations of freedom of speech.
Kagan appeared to dismiss the rights of incarcerated women to safe abortion services. In a memo written for Justice Thurgood Marshall, Kagan expressed skepticism about whether the Eighth Amendment protects the serious medical needs of incarcerated women seeking abortions.she expressed skepticism about whether incarcerated women seeking abortions had “serious medical needs” under the Eighth Amendment. calling the notion that they should receive government assistance to address those needs “ludicrous.” “Kagan’s dismissal of the principle enunciated by [a] lower court — that “serious medical needs” include “non-medically necessary” abortions for incarcerated women — is troubling,” states the CRR analysis.
Some of Kagan’s policy recommendations to President Clinton on the so-called partial-birth abortion ban would have had “harsh consequences for women seeking abortions, and were unconstitutional under then prevailing law.”
“While serving in the White House, first in the Counsel’s office and later on the Domestic Policy Council, Kagan advised President Clinton to support including a too-narrow health exception in federal legislation banning so-called “partial birth abortion,”” states the CRR brief. While Kagan recognized the constitutional importance of protecting women’s health in the context of any restrictions on abortion, and advocated within the Administration accordingly, it is “difficult to draw a firm conclusion about Kagan’s own legal views regarding how robust a health exception must be from documents that reflect political calculations and input from multiple people.”
In response to questions raised during the Solicitor General confirmation hearings on abortion and the right to choose whether and when to carry a pregnancy to term, Kagan “accurately stated current law, expressed deference to stare decisis in her role as Solicitor General, and declined to give her opinion on most of the hypotheticals with which she was presented,” notes CRR. For example, during the SG hearings, Kagan was questioned about her views on whether informed consent and parental involvement laws violate the Constitution but provided a general statement about the state of the law, rather than an opinion on the law.
“It is difficult to draw many conclusions about how Kagan would approach her role as Supreme Court justice from her written testimony on these topics during her confirmation as Solicitor General,” states CRR.
“Whereas the Solicitor General is charged with defending federal statues with
any reasonable argument, the Supreme Court, in its role in “say[ing] what the law is,” Marbury v. Madison, 5 U.S. 137, 177 (1803), must adjudicate among competing arguments in difficult cases, often without a clear guide in previous law.
Although Supreme Court Justices should also give deference to stare decisis, as the highest court in the land, the Justices also inevitably create new precedent, which involves a complex process in which legal analysis is combined with reasoned judgment about a decision’s application to a new set of facts. In such a role, Kagan’s views and experiences would be a far more essential component of her approach to jurisprudence. For this reason, it is imperative that Senate fully engage its “advice and consent” role and provide opportunities for a full hearing of her views.
The best way to unpack these issues, notes CRR, “and the relationship that they bear to Kagan’s current views on the necessary protections for women’s health, is to explore this issue during her confirmation process.”
Accordingly, concludes CRR, “it is critical that the Senate inquire into her current views on constitutional protections for abortion rights more deeply through the confirmation process.”
As of mid-day Tuesday, however, very little unpacking of Kagan’s positions on these issues has been accomplished or even attempted. The one exception has been a relatively cursory questioning of Kagan by Senator Dianne Feinstein on the issue of the “life and health” of the mother.
Feinstin: Okay. Let’s go to the 1973 case of Roe v. Wade. The 1992 case of Planned Parenthood v. Casey. The 2000 case of Sternberg v Carhart. In those cases, the Supreme Court clearly state and I quote “subject to viability the state in promoting its interest in the potentiality of human life may, if it chooses, regulate and even prescribe abortion except where it is necessary in appropriate medical judgment for the preservation of the life or health of the mother.”
That’s 30 years of case law. But in the 2007 case of Carhart v Gonzalez, the Court issued a 5-4 decision upholding a statute that did not contain an exception to protect the health of the mother for the first time since Roe was passed in 1973. So let me ask you clearly, in a memo that you wrote in 1997, you advised President Clinton to support two amendments to a late-stage abortion bill to ensure that the health of the mother would be tected. Here’s the question. Do you believe the constitution requires that the health of the mother be protected in any statute restricting access to abortion?
Senator Feinstein, I do think that the continuing holding of Roe. and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation. Now, the Gonzalez case said that with respect to a particular procedure, that the statute Congress passed, which passed a statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved.
Sen. Feinstein: Because of the procedure?
Kagan: Because of the procedure. But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman’s life and that the woman’s health must be protected in any abortion regulation.
“That procedure” of course being “partial-birth” abortion, the non-existent, non-medical procedure made up by anti-choice forces to undermine access to the actually medically-indicated late abortions conducted for the very purpose of saving the lives and health of women. Kind of doesn’t tell you much given this was a purely political move by Kagan who has otherwise so far demurred throughout the entire proceedings to discuss any “political” issue other than her reference here.
This may be a start. But it is not an ending.
We as yet know very little about what Elena Kagan actually understands about the critical nature of access to safe abortion services to women’s lives, health, autonomy, bodily integrity, or most basic rights to freedom, and how deeply endangered that right is.
And it remains to be seen whether further questions will be raised or whether there will in fact be any light shed on this most fundamental–and most contested–right.