The questioning period in the Elena Kagan confirmation hearings began yesterday, and some disturbing revelations concerning Kagan’s adamant pro-abortion ideology are already rising to the surface. Republican members of the Senate Judiciary Committee (and even some Democrats) have already expressed their concerns about Kagan’s utter lack of judicial experience and her apparent penchant for judicial activism. The leading Republican on the Committee, Jeff Sessions of Alabama, unhesitatingly expressed his reservations in Monday’s opening statements:
“Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. She has barely practiced law, and not with the intensity and duration from which real understanding occurs.”
On the matter of judicial activism, Sessions added the following:
“[T]hroughout her career, Ms. Kagan has associated herself with well-known activist judges. These judges don’t deny activism; they advocate it. And they openly oppose the idea of a judge as a neutral umpire.”
Orrin Hatch, a Republican and Senior Senator from Utah, quipped, “Will the Constitution control her, or will she control the Constitution?”
Indeed, Kagan’s admiration of her former boss, Supreme Court Justice Thurgood Marshall, is not unknown. At the time, she proved to be particularly fond of his “living Constitution” approach to judicial theory, saying: “For in Justice Marshall’s view, … [i]t was the role of the courts, in interpreting the Constitution, to protect the people who went unprotected by every other organ of government – to safeguard the interests of people who had no other champion. The Court existed primarily to fulfill this mission.” Unfortunately, history has shown us that this understanding of legal theory does not embrace the least protected of us all – the unborn.
The delicate nuances of abortion jurisprudence highlight the problems with Kagan’s deficiencies. Kagan has spent the bulk of her career taking strongly opinionated positions on several matters of law and policy in the manner of an ideologue – a clear contrast to the neutrality expected of those on the bench. During her time as an advisor to the Clinton Administration, she was instrumental in providing political cover for Pres. Clinton after he vetoed the Partial-Birth Abortion Ban Act of 1997. While Kagan’s recommendation appeared to suggest a compromise, the proposed “Daschle ban” was in reality a phony policy meant to be used as a political red herring. It worked.
While recalling that controversial ploy, Douglas Johnson, legislative director of the National Right to Life Committee, had this to say:
“[The Daschle ban] had only one purpose, which was to provide political cover for pro-abortion senators who might otherwise feel compelled to vote to override President Clinton’s veto of the Partial-Birth Abortion Ban Act. It was not a real ban, but a completely hollow political construct – all exception, no ban.
“The Daschle ploy served its political purpose, which was to provide enough of a smokescreen to prevent the Senate from overriding Clinton’s veto.”
In yesterday’s questioning period, pro-abortion Senator Dianne Feinstein asked Kagan a series of questions concerning Roe v. Wade. Kagan asserted her belief that both Roe and the accompanying case, Doe v. Bolton, require that state regulations on abortion make exceptions for the health of the mother. Of course, Roe and Doe leave the matter of “maternal health” open to very wide interpretations, even to the point where a physician could claim that a mother would suffer from mental stigma if she were to give birth. “Maternal health” has become the catch-all excuse to legitimize abortion on demand.
While serving in the White House, Kagan sought to expand the reach of the “maternal health” exception. A media alert sent today by Americans United for Life reveals that Kagan “argued that a woman should have access to a partial-birth abortion if her doctor felt it was the best procedure for her health – regardless of whether she actually ‘needed’ an abortion at all.” Kagan’s ambitious and impassioned view on abortion policy combined with her proclivity for judicial activism provide for a gloomy indication of what may soon appear on the legal horizon.