Kagan’s politics

The Supreme Court nominee has trained well for the very confirmation hearing process she once sharply and publicly criticized. So now she’s being as politically correct as she needs to be, while denying she’ll be political at all on the court. What’s wrong with this picture?

Let’s review a thing or two…

Like the fact that she called the bluff of the hearing process herself.

U.S. Supreme Court nominee Elena Kagan’s review of the book “A Confirmation Mess” is creating a confirmation mess of its own.

Not really…most media are stifling it.

Kagan’s 1995 commentary on Stephen Carter’s book rendered a harsh judgment on how lawmakers question Supreme Court nominees…

Coming only a few years after the acrimonious confirmation hearings of Robert Bork which led to his rejection by the Senate, Kagan left no doubt what she thought about the Senate’s subsequent treatment of Supreme Court nominees.

Kagan wrote:

“If the recent hearings lacked acrimony, they also lacked seriousness and substance.”

“The practice of substantive inquiry has suffered a precipitous fall since the Bork hearings, so much so that today it hardly deserves the title ‘practice’ at all.”

“When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

“Senators today do not insist that any nominee reveal what kind of Justice she would make, by disclosing her views on important legal issues. Senators have not done so since the hearings on the nomination of Judge Bork. They instead engage in a peculiar ritual dance, in which they propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner.”

We could at least admire her honesty in such a candid blast. Now, she’s dancing as deftly as anyone. And even though it’s a cinch she’ll be confirmed in short order, the hearings are drawing out some disturbing facts that are finally making it on the public record. She claims the law is above politics?

Under questioning from Republicans on the Senate Judiciary Committee, Kagan calmly brushed off complaints that she was more interested in politics than legal precedent and promised her rulings would be based solely on the law.

“My politics would be, must be, have to be completely separate from my judging,” Kagan said on the second day of her confirmation hearing. “The question is always what the law says.”

Oh, really? Several versions of this story are appearing now that documents have emerged from Kagan’s work in the Clinton administration.

In 2003, the ban on partial-birth abortion was signed by President Bush—and promptly challenged in court, leading to the 2007 Supreme Court decision upholding its constitutionality, Gonzales v. Carhart.

Along the way to the Gonzales v. Carhart decision, the District Court Judge Richard Kopf ruled the ban unconstitutional, relying heavily on a report that the American College of Obstetricians and Gynecologists (ACOG) prepared during the Clinton administration.

And he relied on it particularly, he said, because it was produced without influence from the contending parties on abortion—proving its scientific integrity: “Before and during the task force meeting neither ACOG nor the task force members conversed with other individuals or organizations, including congressmen and doctors who provided congressional testimony, concerning the topics [the report] addressed.”

Turns out that isn’t true, even though the report said this was. In a blockbuster article in National Review, Shannen Coffin discloses the evidence he found in Clinton administration documents—a topic made timely by the hearings on Elena Kagan’s nomination to the Supreme Court.

And the evidence, Coffin claims, is that Kagan, from her post in the Clinton White House, wrote the central passages of the ostensibly neutral ACOG report and had them inserted in the text—which reveals, he says, Kagan’s “willingness to manipulate medical science to fit the Democratic party’s political agenda on the hot-button issue of abortion.”

So when she says that

…she would leave behind, once on the court, the advocacy she engaged in during the Clinton administration and now as the government’s top lawyer at the Supreme Court.

…let’s keep this for posterity, and continue to hope for truth and justice.