Elena Kagan Confirmation Hearing Sets Stage for Political Showdown

Documents released by the Department of Defense reflect the military's consternation with Kagan's role on the issue. "Dean Kagan," says one memo written in 2006 by Bill Carr, Principal Deputy Under Secretary of Defense for Personnel and Readiness, "has reportedly encouraged students to demonstrate against the presence of recruiters."

But in 2007 Kagan addressed the controversy in a passionate speech at West Point: "I have been grieved in recent years to find your world and mine, the U.S. military and U.S. law schools, at odds, indeed, facing each other in court — on one issue. That issue is the military's 'don't ask, don't tell' policy… But I would regret very much if anyone thought that the disagreement between American law schools and the US military extended beyond this single issue. It does not."

Abortion

The Center for Reproductive Rights released a report last week questioning Kagan's record on abortion rights.

"Kagan's record documents her agreement with the general proposition that the Constitution affords a right to abortion," the report says, but then adds, "her positions on the specific contours of that substantive right are less discernible. 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."

In 1997, while serving at the White House, Kagan co-authored a memo urging then-President Clinton to support a Democratic proposal to prohibit late-term abortions even though some abortion-rights groups opposed the proposal.

The memo reflects that Kagan, joined by several other members of the administration, was seeking a pragmatic political position on an issue that was raging at the time. The Republicans were trying to push through the Partial Birth Abortion Act which did not contain an exception for the health of the mother. Some Clinton supporters were attracted by the legislation because they were strongly opposed to the abortion procedure.

Senator Daschle introduced an amendment that offered a middle ground position with a narrowly tailored health exception.

Kagan writes that even though "the choice groups" oppose the Daschle proposal, the president should support it because "it will be difficult" to make the case that the language in Daschle's amendment "does not adequately safeguard women's health."

Other memos reflect the extensive role Kagan played in shaping the Clinton administration's position on any legislation banning the procedure.

Nine years earlier, while she was clerking for Justice Thurgood Marshall, Kagan warned her boss that a pending case regarding female prisoners seeking state funds for elective abortions could become the "vehicle" for Conservatives on the bench to "create some very bad law on abortion."

"We can see from her statements that she viewed a court backing away from abortion rights or prisoner rights as a step in the wrong direction," said Severino. "It is often said that hard cases make bad law, and she worried that deciding these cases against the women inmates might go farther than she or her justice would have gone in limiting these rights. For those who weren't already confident in her pro–Roe v. Wade position, this should be a clear signal."

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