June 30, 2010 | 2 Comments
It’s disheartening to know that I will probably be a grandfather before this hack is off the bench.
Notwithstanding its allegedly apolitical nature, ACOG shared this draft statement with the Clinton White House. Miss Kagan, then a deputy assistant to the president for domestic policy, already knew ACOG’s stance as a result of a July 1996 meeting at the White House, at which ACOG representatives told administration officials — according to a Kagan memorandum [PDF] — that “in the vast majority of cases, selection of the partial birth procedure is not necessary to avert serious adverse consequences to a woman’s health.”
Upon receiving the task force’s draft statement, Kagan noted in another internal memorandum [PDF] that the draft ACOG formulation “would be a disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation.” Any expression of doubt by a leading medical body about the efficacy of the procedure would severely undermine the case against the ban.
So Kagan set about solving the problem. Her notes, produced by the White House to the Senate Judiciary Committee, show that she herself drafted the critical language hedging ACOG’s position. On a document [PDF] captioned “Suggested Options” — which she apparently faxed to the legislative director at ACOG — Kagan proposed that ACOG include the following language: “An intact D&X [the medical term for the procedure], however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”
Kagan’s language was copied verbatim by the ACOG executive board into its final statement, where it then became one of the greatest evidentiary hurdles faced by Justice Department lawyers (of whom I was one) in defending the federal ban. (Kagan’s role was never disclosed to the courts.) The judicial battles that followed led to two Supreme Court opinions, several trials, and countless felled trees. Now we learn that language purporting to be the judgment of an independent body of medical experts devoted to the care and treatment of pregnant women and their children was, in the end, nothing more than the political scrawling of a White House appointee.
Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.
This is bad enough, but then we were treated to this charade during her confirmation hearings today:
“Did you write that memo?” Hatch asked.
“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”
“Did you write that memo?”
“I’m sorry — the memo which is?”
“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”
“Yes, well, I’ve seen the document — ”
“But did you write it?”
“The document is certainly in my handwriting.”
It’s quite the accomplishment to be this duplicitous and yet stupid. It’s not like Hatch hit her out of the blue. The White House had an entire day to prepare her for this question, and the best she can come up with is some muttering, non-sensical dodge?
Shannen Coffin adds this:
I was unable to watch Kagan’s explanation of her role in the ACOG policy statement live, but I understand from Ed Whelan’s excellent coverage that she essentially brushed off the issue (as I predicted here she would), explaining that she was merely helping ACOG state more clearly what the evidence before it already showed.
As I explained, however, there are reasons to doubt that. First, the ACOG task force — formed specifically and solely for the purpose of studying the medical efficacy of the procedure — met for two full days in October 1996, and the result of their collective work was a statement concluding only that it could identify no particular circumstances where the partial-birth method might be the only method to save the health or life of the mother, but that the committee thought it important to leave that judgment to the individual doctors — that is, a policy statement that Congress should stay out of it. After they deliberated in October 1996, the task force forwarded its draft statement to the ACOG board. It was only then that Kagan stepped in to suggest changes.
Therefore, any suggestion that her work was merely the synthesis of the task force’s deliberations doesn’t account for that time line — she had no interaction with the task force itself, only the executive board of ACOG.
Second and more significant, the White House had already met with ACOG’s former president and current chief lobbyist (to whom Kagan’s revisions were addressed) in June 1996, before the special task force was even formed. At that meeting (which apparently Kagan did not attend but recounted in a memo to her bosses, dated June 22, 1996), Kagan wrote that the White House staffers were basically told that ACOG couldn’t identify any particular circumstances where the procedure was medically necessary.
I believe the filibuster to be borderline unconstitutional when exercised in the case of judicial appointments, and believe it should have been “nuked” when the Republicans had a chance. But thanks to the Senator who just received a rare GOP primary endorsement from National Review, the filibuster is still available to defeat nominations to the judiciary.
Therefore, working within the system we have [i.e. playing by the rules the Democrats have established for judicial nominations], I now support a filibuster of Elena Kagan’s nomination to the Supreme Court. Her views on abortion are the very definition of extreme, but that’s hardly surprising coming from a Democrat-appointed nominee. But her falsifying a scientific report that was used as evidence before Congress and subsequently in court to defeat legislative bans on one of the more brutal abortion procedures ever dreamed up shows her to be not only extreme, but unethical and untrustworthy and makes unfit to be an officer of the court, much less a life-tenured member of the highest Court in the land deciding the very issues on which she has manipulated evidence to affect the outcome.
This could get a lot more interesting than I ever anticipated.