Weekly Pulse: SCOTUS Nominee Kagan a Cipher on Choice


This article was originally published by The Media Consortium, of which RH Reality Check is a member.

On Monday, President Barack Obama nominated solicitor general Elena Kagan to replace retiring Justice John Paul Stevens on the Supreme Court. Kagan’s nomination has raised eyebrows among progressives. Despite a long career in legal academia, Kagan has published very little. She seems to have studiously avoided taking a stand on almost any controversial issue. Ruth Conniff of the Progressive calls the Kagan pick “a triumph of the bland.”

“Partial Birth Abortion” ban

As a White House aide, Kagan wrote a memo urging President Bill Clinton to support a ban on so-called “partial birth abortion.” At the time, the House had passed a sweeping late-term abortion ban with no exceptions for the life and health of the mother. Clinton asked Kagan whether he should throw his support behind a more moderate Senate version of the same bill. She recommended a “compromise”—a ban with a maternal health exemption. In the end, Congress passed the extreme version and Clinton vetoed it.

Suzy Khimm of Mother Jones characterizes the memo as “more indicative of a political strategy than a legal argument.” In other words, Kagan was giving strategic advice to the president about what would be politically feasible, not legal advice about the government’s powers to regulate abortion. Kagan argued that the president should support the “compromise” position even though the Justice Department thought it was unconstitutional, according to Jodi Jacobson of RH Reality Check.

At TAPPED, Monica Potts argues that the memo gives us little indication of how Kagan would vote on abortion as a justice.

No Harriet Miers

There’s no question that Kagan is possessed of a formidable intellect. Stephanie Mencimer of Mother Jones quotes one of her former law school students, Elie Mystal, sharing his experience with Kagan on the blog Above the Law:

Like Frodo on Weathertop, there are some wounds that never fully heal. Professor Kagan massacred me intellectually, and brutalized my pride. I got some form of a B in her class (I honestly don’t remember if there was a modifier — I’ve tried to suppress those memories). Kagan was a frightening professor for those who wanted to match wits with the brightest legal minds in the world. For people like me, people who just wanted to get through law school with minimal mental damage, Kagan was nothing short of terrifying.

That’s the best news I’ve heard all day.

Kagan has never been a judge, but that’s not necessarily a deal-breaker in itself. As Steve Benen points out at the Washington Monthly, over a third of the 111 justices of the Supreme Court have had no previous judging experience.

A missed opportunity

Scott Lemieux argues in the American Prospect that Obama is wasting a rare political opportunity to confirm a more liberal justice. Right now, the Democrats still have a sizable, though not filibuster-proof, majority in the Senate. Lemieux argues that Obama is almost certain to get another Supreme Court pick before the end of his term. Then again, he points out, the Democrats are likely to lose Senate seats in the midterm elections.

If Obama were ever going to get a strong liberal on the bench, this would have been the time. No date has been set for a confirmation hearing. Kagan is in Washington today, courting lawmakers.

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