Kagan Co-Authored Clinton White House Policy Memo Supporting Compromise On 'Partial-Birth' Abortion Bill

As an adviser in the Clinton White House, Solicitor General Elena Kagan -- President Obama's Supreme Court nominee -- co-authored a May 1997 memo recommending that President Clinton support a compromise proposal by then-Sen. Tom Daschle (D-S.D.) that would have banned so-called "partial-birth" abortion with an exception for the health of the woman, the Washington Post reports (Shear, Washington Post, 5/11).

Documents from Clinton's presidential library, reviewed by the Associated Press, show that Kagan and her boss at the time, Bruce Reed, advised Clinton to support the compromise to avoid a situation in which the Republican-led Congress would pass a stricter measure and override a presidential veto (AP/New York Times, 5/10). Ultimately the compromise measure failed, and Republicans passed the stricter bill, which Clinton vetoed (Totenberg, "Morning Edition," NPR, 5/11).

"We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto," the memo said.

Kagan and Reed noted that abortion-rights groups opposed the compromise and that the Department of Justice considered the measure unconstitutional. The memo noted that another White House adviser -- Rahm Emmanuel, who is now Obama's chief of staff -- also recommended that Clinton endorse the amendment.

According to the AP/Times, the memo "is more of a political calculation than a legal brief." On Monday, White House spokesperson Ben LaBolt said that "judges confront issues differently than staff attorneys for an administration." He noted that Chief Justice John Roberts also received scrutiny during his nomination over positions he took as a DOJ attorney during the Reagan administration.

The memo and other documents reviewed by the Associated Press do not include Kagan's papers from her tenure as a domestic policy adviser and associate White House counsel during the Clinton administration. Several thousand pages of Kagan's records are expected to be released this summer. The AP/Times reports that "[b]ecause Kagan spent little time in court and never sat as a judge, she does not have the typical long history of court opinions and legal briefs" of other recent Supreme Court nominees (AP/New York Times, 5/10).

Both Sides Look for Clues on Abortion Stance














The 1997 memo casts a spotlight on abortion-rights issues, which received little attention in the immediate hours after her nomination, the Post reports. According to the Post, Kagan's position on Roe v. Wade "could become a sleeper issue" in the confirmation process, as advocates on both sides look for clues on how she might rule on privacy rights.

For the Obama administration, "the idea that Kagan might support tougher restrictions on abortion presents a complicated set of political opportunities and risks," the Post reports. It also might fuel concerns from some liberal groups that seek affirmation that Kagan would support their issues in court rulings. However, the Post notes, "[w]ith 59 votes in the Senate, the Democrats are virtually assured of getting confirmation unless a political bombshell drops before the hearings" (Washington Post, 5/11).

Kagan Asked About 'Conscience' Rule in 2009

CQ HealthBeat reports that during her 2009 Senate Judiciary Committee confirmation hearing for the role of solicitor general, Kagan said she had not heard of the controversy surrounding the George W. Bush administration's HHS provider "conscience" rule, which would have strengthened protections for health care workers who decline services based on religious or moral beliefs. The Obama administration has proposed rescinding the rule (Jenks, CQ HealthBeat, 5/11).

Abortion-Rights Groups Respond to Kagan Nomination

Several abortion-rights groups released statements after Monday's announcement of Kagan's nomination to the court. Nancy Keenan, president of NARAL Pro-Choice America, said, "We call on the Senate to give Solicitor General Kagan a fair hearing and look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision."

Planned Parenthood Federation of America President Cecile Richards said Kagan is "an accomplished and experienced lawyer and legal scholar who has been a trailblazer throughout her career." She added, "We are confident that Kagan will bring the dedication and commitment that have marked her career with her to the highest court in the land" (Washington Post, 5/11).

Center for Reproductive Rights President Nancy Northup said Kagan's "public record reveals very little about her judicial philosophy or her views on the constitutional protections in Roe." Northup also noted, "The last Supreme Court decision on abortion was 5 to 4 and further diluted constitutional protections for abortion." She added, "As such, it is absolutely critical that the Senate Judiciary Committee conduct a rigorous confirmation process and thoroughly explore Ms. Kagan's views on the constitutional protection that should be afforded to women seeking abortions."

EMILY's List President Stephanie Schriock said, "If confirmed by the Senate, Elena Kagan would serve as the fourth woman ever to sit on the court, and the Supreme Court would have a record three women on the bench." She added, "With her nomination the court is one step closer to reflecting the diversity that makes our country so great" (Murray, Roll Call, 5/10).

Leahy To Meet With Kagan

Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) said he intends to meet with Kagan this week and will outline a timetable for completing confirmation hearings this summer. Kagan also will start meeting with lawmakers this week, guided by White House attorney Susan Davies (Arsenault/Viser, Boston Globe, 5/11).

Opinion Piece Examines 'Inscrutable' Kagan Record

In a Slate opinion piece, Dahlia Lithwick discusses the challenges conservatives and liberals face in determining Kagan's positions, noting that, "[w]ith no judicial record to pore over, and some of the wonkiest law-review articles ever penned to her credit, Kagan has mastered the fine art of nearly perfect ideological inscrutability." Lithwick notes, "Even [New Yorker writer] Jeffrey Toobin, her law school study partner, has virtually no idea what she really believes." She includes links to several of Kagan's writings and other analysts' articles on clues to her positions.

Lithwick writes, "What nobody disputes about Kagan is that she is terrifically intelligent, an able manager, ambitious, and well-liked and that she was all that and a wheel of brie when it came to sorting out the problems she inherited as dean of Harvard Law School." According to Lithwick, "Nobody (beyond Glenn Beck) has ever accused Kagan of being a liberal firebrand or a wild-eyed idealist," though some of Kagan's supporters "suggest that she may prove far more liberal than anyone expected" (Lithwick, Slate, 5/10).

New York Magazine's "Daily Intel" also discussed scrutiny of the memo (Amira, "Daily Intel," New York Magazine, 5/11).



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