Hyper-Partisan Elena Kagan's Road to the High Court

In introducing his last Supreme Court nominee 13 months ago, President Obama gushed forth like an out-of-control oil spill about what he saw as Sonia Sotomayor’s main qualification—her “wisdom accumulated from an inspiring life’s journey.”

Obama lavishly praised her “distinguished career,” which included having worked “at almost every level of our judicial system.” All this courtroom time, he assured us, provided Sotomayor “with a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court justice.”

“Walking in the door,” he continued, “she would bring more experience on the bench and more varied experience on the bench than anyone currently serving on the United States Supreme Court had when they were appointed.”

Not surprisingly, in introducing Elena Kagan as his nominee to replace retiring Justice John Paul Stevens, Obama spent a great deal less time touting her judicial experience—that’s because she has none. Obama did, however, refer to Kagan as a “trailblazing leader.”

And in one sense, he’s right. Kagan would be a pioneer of sorts, at least among the current justices. She would be the first Supreme Court justice who has spent his or her life not applying the law but rather crassly manipulating it for political ends.

Remember the to-do about John Roberts’ wife’s affiliation with the non-partisan Feminists for Life? Well, Kagan’s resume overflows with left-wing politics.

She’s worked in academia and as an advocate and policy advisor in two Democratic administrations and on Democratic political campaigns. And, as the Boston Herald put it, she’s been a “faithful Democratic donor over the past decade, lavishing nearly $15,000 on candidates from Barack Obama to Al Gore.”

Kagan’s professed heroes include Barack Obama as well as unabashed judicial activists Thurgood Marshall and Aharon Barak, the former Israeli Supreme Court president.
Given her partisan background, it is not surprising that Kagan spent all week promising that as a Supreme Court justice she would set her political views aside. “My politics would be—have to be—separate from my judging,” she assured Judiciary Committee senators on Tuesday.

No senator on the committee can believe her claim is credible. A justice Kagan would be a vote for same-sex marriage, a vote against the 2nd Amendment, a vote against religious freedom and a vote upholding Obama’s take-over of healthcare. She will vote this way not because the Constitution demands it but because her left-wing ideology does.

Her career has been defined by manipulating the law for political ends. And, as research by Americans United for Life shows, it is a tendency most evident in Kagan’s handling of abortion.

Kagan’s time clerking for Justice Marshall seems to have been about the closest she’s ever been to a courtroom. But she spent much of her time with Marshall, whom she called “a hero of American law” and whose constitutional interpretation she has described as “a thing of glory,” making political calculations. 

In her confirmation hearing for solicitor general, she explained that her job as a clerk for Marshall was not to brief her boss on the law. Rather, she said, her job was to “enable him to advance his goals and purposes as a justice.” That’s revealing given that Marshall famously believed that the role of a judge was to “do what you think is right and let the law catch up.”

In 1988, Kagan wrote in a memo to Marshall that she believed lower courts were legally wrong in holding that female prison inmates could have their abortions paid for by taxpayers. But, because she thought the law was “well-intentioned” (read: would produce more abortions), she recommended that Marshall vote against reviewing the case because it “is likely to become the vehicle that this court uses to create some very bad law on abortion.”

And for her “bad law” meant law that did not advance abortion.

Partisanship also triumphed during her time working in the Clinton Administration. She assisted Clinton on his position against the Hyde Amendment and in favor of federal funding of abortion.


And she allowed politics to trump the law on partial-birth abortion. When Clinton offered tentative support for a very limited partial-birth abortion ban, Kagan argued that if he supported a ban that didn’t include a hollow “health exception,” “the [pro-abortion] groups will go crazy.”

She also advised Clinton that though she felt the partial-birth abortion ban was unconstitutional, he should support a compromise amendment for political gain, “in order,” she wrote to her boss, “to sustain your credibility on [the partial-birth abortion act] and prevent Congress from overriding your veto.”

Most egregiously, Kagan manipulated an opinion from a select panel of the American Congress of Obstetricians and Gynecologists (ACOG) that stated that partial-birth abortion was never necessary to protect the life or health of a woman.

The initial draft stated that the ACOG panel “could identify no circumstances under which this procedure…would be the only option to save the life or preserve the health of the woman.” But Kagan noted in a memo that ACOG’s statement “would be a disaster—not the less so (in fact, the more so) because ACOG continues to oppose the [partial-birth abortion] legislation.”

So, as attorney Shannen Coffin has noted, Kagan wrote “suggested options” for modifying the ACOG position statement. These included having the Clinton Administration claim that partial-birth abortion “may be the best or most appropriate” option.

That crucial language was inserted into the AGOG policy statement, which the ACOG executive board then dutifully copied—word for word—into its final statement.

Kagan’s agenda-driven past is rejected by most Americans. Polls consistently show that vast majorities of Americans want judges who follow the law and are not driven by their own agendas.

There’s been much debate over the last few weeks about whether Elena Kagan is “in the mainstream of current legal thought.” But her record indicates that her thoughts aren’t principally about the law at all. Rather, after years saturated in partisan politics, they habitually focus on how she can exploit the law for political ends. 

Cartoon courtesy of Brett Noel