On April 21, 2010, President Obama used thinly veiled code language to communicate his clear intent to choose a nominee who would be hostile to legislative attempts to protect unborn humans. The President stated that he wanted someone "who is going to be interpreting our Constitution in a way that takes into account ... women's rights," and that this was going to be "very important" to him as he viewed our "core Constitution" as protecting the "bodily integrity" of women.
In light of the President's stated intent, senators have an obligation to probe whether Elena Kagan will tolerate limits on abortion, enacted through normal democratic channels, or will seek to impose extreme pro-abortion views by judicial decree. Ms. Kagan herself argued forcefully in 1995, in a lengthy book review published in the University of Chicago Law Review, that such inquiries by senators are a legitimate and necessary part of the confirmation process.
In the most recent Supreme Court ruling dealing with abortion and the rights of unborn children, Gonzales v. Carhart, on April 18, 2007, a five-justice majority upheld the federal Partial-Birth Abortion Ban Act. Yet on that occasion, four justices in dissent -- including Justice Stevens -- argued for a constitutional doctrine that would have invalidated the ban on partial-birth abortions and also, by implication, condemned virtually any other law or government policy intended to discourage abortion. If the dissenters' position became the position of the majority of the Supreme Court, various types of laws that have been deemed permissible under Roe v. Wade could be invalidated by judicial decree, perhaps including the Hyde Amendment (restricting government funding of abortion) and parental notification laws. It is appropriate and necessary for senators to inquire into whether Ms. Kagan would embrace the extreme, results-oriented doctrines enunciated by the dissenting justices in that case.
(Since the Gonzales case was decided, dissenting Justice David Souter has been replaced by Justice Sonia Sotomayor. Most analysts believe that Sotomayor would be very likely to join the pro-abortion bloc when such issues are revisited in the future.)
There are troubling indications that Ms. Kagan generally favors an activist, results-oriented approach to constitutional law. For example, in her 1995 law journal article, she wrote, "The bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court's decisions. ... If that is too results oriented ... so be it.” She also wrote that "it should be no surprise by now that many of the votes a Supreme Court Justice casts have little to do with technical legal ability and much to do with conceptions of value."
Regarding Ms. Kagan's specific views on the Court's past abortion-related rulings, there is little on the public record. But Ms. Kagan may have betrayed a possible personal animus towards the pro-life movement in a 1980 essay lamenting Republican gains in the 1980 election, in which she referred disparagingly to "victories of these anonymous but Moral Majority-backed [candidates] ... these avengers of 'innocent life' and the B-1 Bomber." Was Ms. Kagan so dismissive of the belief that unborn children are members of the human family that she felt it necessary to put the term "innocent life" in quote marks, or does she have another explanation? Would she be able to set aside any animus she has towards those who fight to protect innocent human life, when reviewing laws duly enacted for that purpose?
Monday, May 10, 2010
The National Right to Life Committee (NRLC), the federation of right-to-life organizations in all 50 states, issued the following statement regarding President Obama's nomination of Elena Kagan to fill the seat on the U.S. Supreme Court that is being vacated by Justice John Paul Stevens. This statement may be attributed to NRLC Legislative Director Douglas Johnson.