A successful magic act hinges upon the magician’s ability to distract the audience from what is really going on. And in the current battle for a lifetime appointment to the Supreme Court, Americans—distracted by tragic headlines over the last two months—seem to have turned their eyes from the news that will shape their lives for generations to come.
Now it is time to pull back the curtain and demand that Elena Kagan receives appropriate scrutiny from our senators, or the trick will be on us.
An episode from Kagan’s Senate Judiciary Committee confirmation hearings shows us exactly where we need to look.
Engaged analysts already know that Ms. Kagan will be an agenda-driven judge, perhaps the likes of which we’ve never seen. She has a long record of supporting and admiring agenda-driven judges, people who at times rejected the law to advance their personal views.
But in a Perry Mason moment during her confirmation hearings, Kagan herself tugged at the magician’s curtain when answering questions about events surrounding her political work advising President Bill Clinton on partial-birth abortion.
On June 15, Americans United for Life attorneys released a legal memo that discussed Kagan’s work on partial-birth abortion. The memo first raised the issue of Kagan’s attempt to lobby the American College of Obstetricians and Gynecologists (ACOG) to change its position statement on partial-birth abortion to reflect her preferred language as debate on the heinous practice heated up on Capitol Hill. A month later, ACOG’s final policy statement contained Kagan’s edits.
And it didn’t stop there.
On June 28, AUL attorneys released a second memo examining Kagan’s efforts to lobby the American Medical Association (AMA) on the same issue.
Sen. Orrin Hatch (R.-Utah) asked Kagan at her confirmation hearing about this chapter in her career as a political operative. In an otherwise sleepy and scripted two days of hearings, it became clear from her tone and evasiveness that Hatch was on to something.
While working in the Clinton White House, Kagan wrote that ACOG’s initial statement on partial-birth abortion, which stated that experts "could identify no circumstances under which [the partial-birth] procedure …would be the only option to save the life or preserve the health of the woman," would be a "disaster." During the hearings, Kagan "clarified" what she meant by calling ACOG’s statement a "disaster."
Kagan told Hatch "the statement did not accurately reflect all of what ACOG thought…. That it was both not the only procedure [to save the life or preserve the health of the woman], but also that it was in some circumstances the medically best procedure."
That statement does not pass the straight-face test.
Kagan essentially told senators that she wasn’t trying to influence the ACOG language, rather she was working to ensure that ACOG had the opportunity to paint the whole picture. This explanation doesn’t square with her 1996 White House memo where it’s clear that the "disaster" in question was ACOG’s scientifically based view that partial-birth abortion is not medically necessary.
"I’m really stunned by what appears to be a real politicization of science," Sen. Hatch said, responding to her testimony. "The political objective of keeping partial-birth abortion legal appears to have trumped what a medical organization originally wrote and left to its own scientific inquiry they had concluded."
There seems to be a clear difference between what Kagan told the Senate and what may have actually taken place. William Saletan, hardly a conservative-leaning columnist, called Kagan’s explanation "bogus" in a July 3 Slate.com piece.
Americans United for Life President and CEO, Dr. Charmaine Yoest, called for a formal investigation into these discrepancies during her Senate testimony. And while the July 4th congressional recess temporarily paused the nomination process, it allows time to reset the proverbial stage.
Act Two is set to begin. As the Senate returns for business this week after the recess, the brewing storm over Kagan’s partial-birth abortion scandal is certain to intensify. But this storm, some may be surprised to find, will not necessarily be a partisan one.
Kagan’s apparent alteration of science raises serious ethical questions for both Republicans and Democrats. With so many outstanding questions about a political activist and advocate poised to sit on the highest court in the land, how could the Senate possibly vote on Kagan’s nomination without further inquiry?
A magician’s trick cannot withstand close scrutiny, and Americans are beginning to see the real Elena Kagan.