Pro-Life Works: Setback - The Kagan Nomination

May 19, 2010

The Kagan Nomination: A Setback for the Pro-Life Movement

Eric Brown

Membership Services Associate

Solicitor General Elena Kagan is already being painted as a moderate nominee to the Supreme Court by the media and some political think-tanks.  This portrayal is difficult to dispute comprehensively because of her lack of a public record and accompanying statements that outline her personal views, thus, complicating the venture of placing her on an ideological spectrum. 

Political portraits have been sketched with the little information we have about Elena Kagan.  The New York Times on May 11 published a piece—“As Clinton Aide, Kagan Recommended Tactical Support for an Abortion Ban”—by Peter Baker discussing a memorandum authored by Kagan while she was working for the Clinton Administration, in which she counseled President Clinton in May 1997 to support an amendment to the partial-birth abortion ban authored by Senator Tom Daschle (D-SD) that would include an exception for the “health” of the pregnant woman—a broad exception that could easily be employed as a loophole.

At that time, President Clinton and his advisors anticipated that the Daschle amendment would fail, but support from the White House could provide enough political cover for Democratic lawmakers.  These lawmakers could reiterate their alleged support of the partial-birth abortion ban, but justify their vote against it because of the lack of inclusion of the broad “health” exception for the pregnant woman.   In the end, the Daschle amendment failed and the Republican-sponsored partial-birth abortion ban, endorsed by the National Right to Life, was sent to President Clinton who consequently vetoed it.  Kagan’s advice to the President was successful and held the passage of a partial-birth abortion ban for years.

According to Douglas Johnson, the legislative director of National Right to Life, during his testimony before a joint-hearing before the U.S. Senate Judiciary Committee and the Constitution Subcommittee of the U.S. House Judiciary Committee in 1997:

“The Clinton-Daschle proposal is a political construct, designed to provide political cover for lawmakers who want to appear to their constituents as if they have voted to restrict partial-birth abortions, while actually voting for a hollow measure that is not likely to prevent a single partial-birth abortion, and which, therefore is inoffensive to the pro-abortion lobby.”

Kagan is not “in the middle” on abortion; she advised President Clinton of the pragmatic steps (endorsing a pseudo-ban on partial birth abortion) needed to defeat the actual Pro-Life measure.  Kagan may very well be a “legal progressive” as was recently proclaimed from the White House, in defense of her liberal credentials.

At present, it seems that Kagan may be confirmed without any significant opposition.  Senator John Kyl (R-AZ), the Senate’s Republican whip and member of the Senate Judiciary Committee, recently said, “the filibuster should be relegated to the extreme circumstances, and I don't think Elena Kagan represents that.”  All 41 Senate Republicans would be needed to prevent Kagan from being confirmed and even a single dissent would enable her confirmation.  The concession by Senate Republicans to allow a vote on Elena Kagan may translate into a major setback for the Pro-Life cause.

From a Pro-Life perspective, Elena Kagan is not likely to rule to overturn Roe v. Wade.  Before the 2008 elections, there were five justices in favor of Roe v. Wade and four on the court with the possibility of ruling against Roe.  The ebb and flow of history has already enabled President Obama to be the first president since Ronald Reagan with a great opportunity to shape the Supreme Court for coming generations.  President Reagan, over a span of eight years, nominated three of the current sitting members of the high court.  President Obama’s first nominee, Justice Sonia Sotomayor, was confirmed last year.  Now in just the second year of his presidency, Obama already has a second opportunity to shape the court and with no Republican opposition.  It is possible that President Obama may have at least one more pick in his first term and if he is re-elected; his influence over the composition of the Supreme Court will be a rarity in American presidential history.

The implications of this are far-reaching.  Any future Republican presidents are likely to replace conservative justices with conservative justices, playing defense rather than offense.  The predisposition of the Court toward tolerating Roe v. Wade might very well last another generation, perhaps even two.  Recent history seems to affirm this hypothesis.  The actual length of terms for justices has increased dramatically since 1970, from a prior average of about 15 years to a present average of about 26 years.  The increase in life expectancy may have something to do with this, and so does political calculation.

The longer each appointment to the Supreme Court lasts, the more valuable—politically speaking—it becomes, which creates an incentive for presidents to nominate relatively young nominees.  Kagan, the current nominee, is 50 years old; Sotomayor was 54, John Roberts was 50, and Clarence Thomas was 43.  The conventional wisdom has been that the more political the nomination and appointment process to the Supreme Court becomes, the more likely Presidents will nominate younger and ideologically-chosen candidates.  This  gives the president a legacy in shaping the judicial and political philosophy of the high court.

In light of the current political reality, it is vital for the Pro-Life movement to get informed voters to the polls to vote in more Pro-Life Senators in 2010 and a new President in 2012.