Elena Kagan is not anti-choice


Better minds than mine are perusing the record of Elena Kagan, the current Solicitor General and almost-certain-to-be-next Supreme Court Justice. And they may unearth some sort of bombshell that will derail her confirmation. If it turns out that Kagan once wrote an essay on why we should execute prisoners without trial, or why we should give everyone in America death-panel medicine, I’m sure that will be used to end her candidacy for the high court.

If such a bombshell exists, it will probably be unearthed by the left; the firebagger brigade, led by Glenn Greenwald and Jane Hamsher, has declared that Kagan is dumber than Harriet Miers and slightly to the right of Robert Bork. They are intent on finding proof of these suppositions, and who knows? Maybe such proof exists, at least of the latter point. (The idea that the current and first female Solicitor General and former Dean of the Harvard Law School is some sort of fool is frankly too obviously false to require response. Unlike George W. Bush, Barack Obama hasn’t stocked his staff with cronies.)

One such bombshell being pushed by Greenwald is the revelation that in 1997, Kagan, who was serving as an associate White House counsel, lobbied then-President Bill Clinton to sign a restriction on late-term abortions.

Now, on its face, that would be a real problem for anyone who considers themselves pro-choice. We don’t need a justice who’s going to be wobbly on issues of choice, especially considering that the court is split about 4.51-4.49 on choice right now. The last thing we need is Kagan deciding that choice isn’t that important after all.

But when we look at what Kagan actually said in her memo to Clinton, we see someone who was proposing something less than a ban on late-term abortion. Indeed, we see someone who was trying to preserve as many rights for women as possible:

Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton’s presidential library are among the first to surface in which Kagan weighs in on the thorny issue of abortion.

The abortion proposal was a compromise by Democratic Sen. Tom Daschle. Clinton supported it, but the proposal failed and Clinton vetoed a stricter Republican ban.

In a May 13, 1997, memo from the White House domestic policy office, Kagan and her boss, Bruce Reed, told Clinton that abortion rights groups opposed Daschle’s compromise. But they urged the president to support it, saying he otherwise risked seeing a Republican-led Congress override his veto on the stricter bill.


Indeed, the memo is more of a political calculation than a legal brief, but Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional.

“We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto,” they wrote.

It’s not pretty, the machinations of legislating. But Kagan and Reed were right. The Daschle compromise fell apart, Clinton ultimately vetoed the ban on so-called “partial birth” abortion, and the Democrats in Congress were able to sustain the veto. The issue died until George W. Bush finally got a Republican Congress in 2003, at which point Congress passed a bill banning D&X procedures that was ultimately more conservative than Kagan’s proposed compromise.

Moreover, the memo itself tells us how Kagan would have ruled had said ban been before her as a Supreme Court justice: she would have ruled it unconstitutional, just as John Paul Stevens did. These things are not at odds. Kagan’s memo was about the political calculations of abortion – something that she will not have to worry about as a justice. Her political calculations were right. And I agree with her on the Constitutional point, too.

Now, that doesn’t mean that it’s not good to bring these things to light; it is. It’s good to see what Kagan was thinking while working as a political advisor for Clinton. But it’s important to read beyond the headlines when these issues are brought forward. In this case, a memo being used by Kagan’s opponents on the left to prove her anti-choice leanings does quite the opposite. It shows that confronted with a serious threat to women’s rights, Kagan looked for ways to preserve as many rights as possible given the political circumstances, and that regardless of politics, she believed the right to late-term abortion was, in fact, guaranteed by the Constitution. Far from showing Kagan as wobbly on choice, the memo should be seen as supporting her pro-choice bona fides. There may be a smoking gun in the Kagan file. This isn’t it.