The Kagan Hearings - Day 3

By 

Nathanael Bennett

|
June 9, 2011

6 min read

Supreme Court

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Day 3 of Elena Kagans confirmation hearings started with Senator Leahy expressing his desire to finish the questioning of Kagan that day, in light of the upcoming memorial services for Senator Byrd.  Although there were still four Senators who had yet to ask questions in the first round and numerous Senators with additional questions for Kagan, Senator Leahy was determined to finish.  And finish is exactly what the Senate Judiciary Committee did. 

After the first round was completed, Senators were then given a second round of 20 minutes to ask additional questions if they so desired.  A few Senators asked a limited number of questions in a third round.  While it is appropriate for the Committee to pause its work to honor the life of Senator Byrd, it was clear that Senator Leahy was pushing to get the questioning completed in Day 3. Kagan has been nominated to a lifetime position on the highest court in our country.  The Senate has a constitutional duty to provide Advice and Consent on her nomination.  The Committee certainly could have completed its hearings on her nomination after the July 4 recess, and still allowed enough time for the Senate to vote on her nomination before the Supreme Courts next term.

Although Kagan seemed more responsive today to Senators questions, she did refuse to answer some questions.  For example, she did not think it appropriate to say whether she believes that the Constitution could be properly read to include a right to same-sex marriage.

Some Senators remained concerned about her actions regarding military recruiters at Harvard Law School.  Senator Sessions noted that he was disappointed a bit with regard to how you described the situation at Harvard and the blocking of the military to have full and equal access to the recruiting offices as required by law.  He also stated that he thinks that the White House has been spinning that story inaccurately, and I believe your testimony was too consistent with an inaccurate spin and didn't frankly set forth what you did.  In his closing statement, he said that he believed her actions there were not consistent with the law.

Kagan also faced tough questioning on some of the work that she did in the Clinton White House on the issue of partial-birth abortion.  Senator Hatch questioned Kagan about a memo she wrote to her supervisors on a draft statement by the American College of Obstetricians and Gynecologists (ACOG) on partial-birth abortion. 

As Senator Hatch said in his questioning of Kagan:

You noted that the American College of Obstetricians and Gynecologists were considering a statement that its experts panel found no circumstances under which partial-birth abortion was the only option for saving the life or preserving the health of the woman.

You wrote, quote, "This, of course, would be a disaster," unquote.

That's something that -- that does bother me, because it would be a disaster, you wrote, because ACOG opposed the ban on partial-birth abortion, if anyone ever found out -- and you wrote that it could leak -- even if ACOG did not officially release its original statement, it could have negative political consequences.

So you drafted alternative language that would say that partial-birth abortion, quote, "may be the best and most appropriate procedure in particular circumstances to save the life or preserve the health of the woman," unquote.

Now, that's a very different spin and obviously a more politically useful spin. The ACOG executive board copied your language verbatim into its final statement. Your language played an enormous role in both legal and political fights over banning partial-birth abortion.

While Senator Hatchs ultimate question to Kagan was rather straightforward"Did you write that memo?"Kagan launched into a defense of her actions.  She claimed I dont think thats what happened here. She called the issue a difficult one and did admit to talking to ACOG about the issue. 

She explained as part her lengthy answer:

What ACOG thought and always conveyed to us was two things. What ACOG thought was that, on the one hand, they couldn't think of a circumstance in which this procedure was the absolutely only procedure that could be used in a given case, but, second, on the other hand, that they could think of circumstances in which it was the medically best or medically most appropriate procedure, that it was the procedure with the least risk attached to it, in terms of preventing harm to the women's health.

And so we knew that ACOG thought both of these things. We informed the president, President Clinton, of that fact. There did come a time when we saw a draft statement that stated the first of these things which we knew ACOG to believe, but not the second, which we also knew ACOG to believe. And I had some discussions with ACOG about that draft.

With regards to her disaster statement, she said, the disaster would be if the statement did not accurately reflect all of what ACOG thought, both -- I mean, that there were two parts of what ACOG thought.  Senator Hatch was rightly troubled by the issue and Kagans actions.  He said, I know that there are plenty of doctors in ACOG who did not believe that partial-birth abortion was an essential procedure and who believed that it was really a brutal procedure, and it was a constant conflict there.

On the issue of foreign law, Senator Kyl pressed Kagan about her statements to Senator Grassley yesterday.  Kagan said in part of an answer to Senator Grassley, I'm in favor of good ideas coming from wherever you can get them, although she did say that she did not think that foreign law should have independent precedential weight in any but a very, very narrow set of circumstances.  In her answer to Senator Kyl she compared looking at foreign judicial decision and learn[ing] something from it to looking at and learning something from a law review article.  Senator Kyl remained troubled by her answer, as do we.

On Thursday afternoon, Senators will hear from outside witnesses.  They will then have the opportunity to submit written questions to Kagan.  We will continue to monitor the nomination.