The Kagan "Smoking Gun"? Hardly

It seems that the Right is all agog over this article in the "National Review" by Shannen Coffin, claiming that Elena Kagan "manipulated the statement of a medical organization to protect partial-birth abortion" while working in the Clinton White House.

Here is the gist of Coffin's "bombshell":

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Coffin points to this draft copy [PDF] of the ACOG statement which does not include the phrase “[An intact D & X] may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." Instead, that phrase was handwritten in as a suggestion from Kagan.

The phrase was included in the final version and has apparently been cited by judges in cases involving the prodecure ... and this is somehow proof that Kagan is willing 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" and therefore is unfit for the Supreme Court.

Of course, if you bother to actually read the document Coffin cites, or the final ACOG statement itself, it is abundantly clear that this one sentence fits with the overall position being advocated by ACOG, which was that any "legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.."

Here is the entire ACOG statement, so you can judge for youself wheter the inclusion of this one sentence in any way changes ACOG's fundamental point or distorts science:


Washington, DC.

ACOG Statement of Policy


The debate regarding legislation to prohibit a method of abortion, such as the legislation banning ``partial birth abortion,'' and ``brain sucking abortions,'' has prompted questions regarding these procedures. It is difficult to respond to these questions because the descriptions are vague and do not delineate a specific procedure recognized in the medical literature. Moreover, the definitions could be interpreted to include elements of many recognized abortion and operative obstetric techniques.

The American College of Obstetricians and Gynecologists (ACOG) believes the intent of such legislative proposals is to prohibit a procedure referred to as ``Intact Dilatation and Extraction'' (Intact D & X). This procedure has been described as containing all of the following four elements:

1. deliberate dilatation of the cervix, usually over a sequence of days;

2. instrumental conversion of the fetus to a footling breech;

3. breech extraction of the body excepting the head; and

4. partial evacuation of the intracranial contents of a living fetus to effect vaginal delivery of a dead but otherwise intact fetus.

Because these elements are part of established obstetric techniques, it must be emphasized that unless all four elements are present in sequence, the procedure is not an intact D & X.

Abortion intends to terminate a pregnancy while preserving the life and health of the mother. When abortion is performed after 16 weeks, intact D & X is one method of terminating a pregnancy. The physician, in consultation with the patient, must choose the most appropriate method based upon the patient's individual circumstances.

According to the Centers for Disease Control and Prevention (CDC), only 5.3% of abortions performed in the United States in 1993, the most recent data available, were performed after the 16th week of pregnancy. A preliminary figure published by the CDC for 1994 is 5.6%. The CDC does not collect data on the specific method of abortion, so it is unknown how many of these were performed using intact D & X. Other data show that second trimester transvaginal instrumental abortion is a safe procedure.

Terminating a pregnancy is performed in some circumstances to save the life or preserve the health of the mother. Intact D & X is one of the methods available in some of these situations. A select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman. An intact D & X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and only the doctor, in consultation with the patient, based upon the woman's particular circumstances can make this decision. The potential exists that legislation prohibiting specific medical practices, such as intact D & X, may outlaw techniques that are critical to the lives and health of American women. The intervention of legislative bodies into medical decision making is inappropriate, ill advised, and dangerous.

Approved by the Executive Board, January 12, 1997.


Not Activism, Patriotism

[Thurgood Marshall] taught us all what it means to love our country enough to work to make it a little better, a little stronger and a little closer to what it's supposed to be. That's not activism. That's patriotism.

Stephanie Jones’ op-ed in the Washington Post this morning explains perfectly why the Republican line of attack against Justice Marshall is so, so wrong. All senators who have hopped on to the anti-Marshall train this week need to read it, and then explain themselves.


Kagan: Judges Have to Exercise Judgment

Sen. Amy Klobuchar asked Solicitor General Kagan this morningwhat she thinks of Chief Justice Roberts famous “balls and strikes” metaphor of judging. Kagan answered that the metaphor is correct in that judges have to be neutral and fair, and “realize that they are not the most important person in the system of government.”

But, she added, she disagreed that judging is a “robotic” enterprise…especially in the tough cases that come before the Supreme Court.

“Judges do have to exercise judgment,” Kagan said, “They're not easy calls. That doesn't mean that they're doing anything other than applying law. … But we do know that not every case is decided 9-0, and that's not because anybody's acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes.”

It’s nice to hear a nominee and a senator discussing the Court’s work in an honest—and nuanced—way.

[Updated with polish transcript]


Coburn Wants the Supreme Court to Stop Congress from Spending

Senator Tom Coburn just launched an . . . interesting line of questioning against Elena Kagan, claiming that the Supreme Court has a broad mandate to stop Congress from running up a national debt.

SCOTUSblog’s initial notes of Coburn’s statement:

The Commerce Clause has gotten us to a place where we'll have a $1.6 Trillion deficit for our kids to pay. We have this expansive cost, and we have to have some limit on it. If the courts aren't going to limit within original intent, we have to throw out most of the Congress.

Actually, Senator Coburn, the American people do have a way to “throw out most of the Congress” if we’re unhappy with what they're doing. In fact, we get a chance to do it every two years.

Senator Cardin, following Coburn, put it just right: “His definition of original intent is similar to some of my colleague’s definition of judicial activism . . .  you use it to get results.”


Outdated Stereotypes and Gender-Based Discrimination in Flores-Villar v. United States

On Monday, People For the American Way Foundation signed on to an amicus brief urging the Supreme Court to reverse the Ninth Circuit’s decision to enforce a section of the Immigration and Nationality Act that imposes a greater residency requirement for unmarried citizen fathers to transfer citizenship to their children born abroad than on unmarried citizen mothers.

The statute permits unmarried citizen fathers to transmit citizenship only if they have lived in the U.S. prior to the child’s birth for ten years, five of them after the age of 14. Mothers, on the other hand, are only required to have lived in the U.S. for just one year prior to the child’s birth. The petitioner’s father was 16 when his son was born, making it impossible for him to meet the requirement of five years of residency after age 14. Mr. Flores-Villar filed suit on the grounds that the law violates the equal protection component of the Fifth Amendment’s due process clause.

PFAWF’s brief, authored by the National Womens’ Law Center, argues that such gender-based discrimination perpetuates the old stereotype that unwed fathers have less meaningful relationships with their children than do unwed mothers, and the Supreme Court has rejected the use of such stereotypes in justifying gender-based classifications. The classifications also do nothing to further the government’s stated objective of encouraging parent-child relationships, and in countries where citizenship is derived from the father, would render stateless the children of fathers who cannot meet the requirements.

If the Supreme Court were to uphold the Ninth Circuit’s decision, it would be ignoring over 30 years of Equal Protection jurisprudence to enforce a discriminatory law that perpetuates outdated stereotypes and is harmful to family relationships.


Any Group With Just 15% Support Should Not Be Calling Anyone an "Ideologue"

Outside of the incessant Twittering of the Judicial Crisis Network's Carrie Severino, I haven't seen much commentary from the Right on Elena Kagan's hearing today ... and the few things I have seen have tended to be along the line of this ridiculous press release from the American Life League:

"Elena Kagan has revealed herself as the pro-abortion activist she is. The 'health of the mother' exception has long been code for abortion on demand for any reason under the sun - including financial 'health.'

"Kagan's position is clearly opposed by the majority of Americans who self-identify as pro-life. While we are not shocked that an Obama nominee would be anything but rabidly pro-death, we are compelled to demand representation from our elected leaders: this pro-abortion ideologue is not fit to serve on the Supreme Court.

While poll results may show that a bare plurality of Americans consider themselves "pro-life," a whopping 80% believe that the option should be available in certain circumstances ... like for "the health of the mother":

Only 15% believe abortion should be illegal in all circumstances, which is the position held by the American Life League .. and yet ALL claims that it is Kagan who is the extremist ideologue.

Cross-posted from RWW.


RNC v. FEC: Court Decides Against Soft Money, But Barely

As Miranda reported back in May, the Citizens United decision mobilized its proponents in the direction of securing more rights under the First Amendment. The specific target? Soft money contributions.

In the case, RNC v. FEC, the RNC and several affiliate groups argued political parties should be allowed to raise and spend unlimited "soft" money contributions for purposes other than influencing national elections.

The RNC, the CA GOP and the San Diego Co. GOP had claimed they should be allowed to raise the money for redistricting, non-federal state elections and grassroots advocacy. A 3-judge panel in DC Circuit Court ruled unanimously against the RNC earlier this year. Only 3 members of the Supreme Court wanted to hear the case; 4 members must approve for the Court to accept a case.

The Court’s decision today not to take the case – with Scalia, Thomas and Kennedy on the other side - is a slim victory for the American people, already harmed by the harsh reality of the Roberts Court’s pro-corporation bent. We should temper our happiness, however, given the fact that a similar case is already pending in another circuit court, and pro-corporation groups are energized about its prospects.

Meanwhile, the U.S. Court of Appeals for the Fifth Circuit recently heard Cao v. FEC May 25. This case is a similar challenge to party restrictions, questioning the very low coordination limits for political parties and congressional candidates.


Justice Thomas, Activist

Tom Goldstein at SCOTUSblog has done an impressive analysis of the Supreme Court’s decisions this term, and found several surprising results. Among these is pretty clear evidence that Justice Clarence Thomas, one of the most conservative Justices on the court, is also by far the most willing to rewrite established law and overrule judicial precedent:

Among all the Justices, it is in fact Scalia and Thomas – frequently heralded by conservatives as ideal members of the Court – who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent. They not only joined the Citizens United majority, but they would also have held unconstitutional the “honest services” statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).

Just as fascinating is Justice Thomas’s openness to reconsidering almost every issue in the law that he views as wrongly decided. This Term, he wrote eight separate opinions suggesting the reconsideration of existing law: McDonald (incorporation); Berghuis v. Smith (fair cross-section requirement for juries); Milavetz, Gallop & Milavetz v. United States (commercial speech); Maryland v. Shatzer (custodial interrogation); Mohawk Industries v. Carpenter (interlocutory appeals); Carachuri-Rosendo v. Holder (immigration); United States v. O’Brien (jury trial rights); and Wilkins v. Gaddy (cruel and unusual punishment). 

[Emphasis is mine].

We can’t say it here enough: it’s stunning that conservative Senators are still throwing around the term “judicial activism” with a straight face.


Kagan Defends Marshall

As we and others have noted, many Republican Senators have adopted the perplexing tactic of attacking Kagan’s strong ties to civil rights giant and Supreme Court Justice Thurgood Marshall. Today, Kagan masterfully defended Justice Marshall’s judicial philosophy against Senator Kyl’s accusations of judicial activism.

Senator Kyl accused Justice Marshall of favoring the disadvantaged over the powerful – a critique that may reveal more about Senator Kyl than Justice Marshall. But as Kagan put it, Justice Marshall’s philosophy wasn’t about unfairly advantaging one group over another – it was about the “Court taking seriously claims that were not taken seriously anywhere else.” I think all of us, with the possible exception of Senator Kyl, can be glad that the Court gave Marshall and his colleagues a fair hearing in Brown v Board.


Sessions: Citizens United was just like Brown v. Board!

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

  1. Brown v. Board of Education ended the systematic segregation of the American school system. Citizens United v. FEC struck down a law that didn’t let corporations spend as much as they wanted to on electioneering communications.
  2. The GOP has spent a large part of the past two days attacking Justice Marshall for what they call his “activist” judicial philosophy. They define that philosophy as an insufficient reverence for the Constitution as originally written and intended.
  3. Brown v. Board of Ed (which Marshall argued) is a classic example of a case in which the Supreme Court interpreted part of the Constitution—the 14th Amendment—in a way at odds with the original intent of its writers, but in line with evolving social mores and values. Elena Kagan made that very point herself this morning, as did former Justice David Souter a few weeks ago.
  4. Sessions says that the same philosophy led to Brown v. Board and Citizens United, but continues to slam Thurgood Marshall, the architect of the Brown argument, while praising the results of Citizens United.

The confusing logic aside, the main point here is that Sessions just compared limits on corporate spending in elections with systematic racial segregation. This is the top Republican on the Senate Judiciary Committee. And abstract arguments about judicial philosophy aside, that’s just appalling.


Free Enterprise Fund v. PCAOB: The Pro-Corporation Court Strikes Again

Yesterday, the Supreme Court held that the Public Company Accounting Oversight Board’s mechanism for removing its officers violated the constitution. Formed by the Sarbanes-Oxley Act, in response to the Enron scandal, the PCAOB has been challenged since its inception. Today’s ruling is another signal from the Roberts Court that the rights of corporations are more important than the rights of individuals. The Court ruled that since the PCAOB’s members are appointed by the Securities and Exchange Commission, and not removable by the President except for cause, such an arrangement violated the Constitution’s separation of powers. According to the Wall Street Journal:

Congress had given the five-member board, a not-for-profit corporation, broad regulatory authority over accounting firms that audit publicly traded companies. . . .

Roberts said the structure of the accounting board violated constitutional separation-of-powers principles because it was too difficult for the president to remove board members.

The majority did not invalidate PCAOB completely, finding that the offending provision was severable from the other parts of the statute.  But as Breyer’s dissent points out, the Court’s ruling “threatens to disrupt severely the fair and efficient administration of the laws” because the decision struck down protection for members from removal for political reasons and could be expanded to apply to other government officers. 

This decision – which as noted by Justice Breyer poses a serious threat to the functioning of the government and the board - is just another that can be added to the long list of pro-business decisions made by the Roberts Court. By further complicating the PCAOB, the Supreme Court is tacitly supporting corporations, rather than protecting the public from predatory practices.



Kyl and Activism

John Kyl says that senators have been talking about the “alleged activism” of the current Court.

I think we can just go ahead and call it “activism.”


Hatch Misses the Point

Senator Hatch spent most of his allotted questioning time trying to refute what he called “misstatements” by critics of the Supreme Court’s decision in Citizens United. Particularly, he tried to defuse claims that the decision permits foreign corporations to heavily influence the outcome of our elections by getting Kagan to admit that the case itself didn’t involve a foreign corporation.

Kagan readily agreed, since it is a matter of record that the plaintiff in the case was a domestic corporation and not a foreign corporation. But he cut her off when it looked as if she was going to continue. Most likely, he didn’t want to hear that his question missed the point.

The conservative majority in Citizens United held that corporations have the same First Amendment political speech rights as individuals and that they are now allowed to make unlimited independent expenditures from their general corporate accounts. There was no limitation in the decision that would prevent a U.S. company that is a subsidiary of a foreign corporation – or controlled by one – to pour millions of dollars into our elections to further foreign interests.

This very real loophole is why it is imperative for Congress to pass the DISCLOSE bill to prevent what Hatch wrongly dismisses as a misstatement.


Hatch’s Citizens United Tirade

Sen. Orrin Hatch spent his entire question time lambasting the arguments Kagan made as Solicitor General defending campaign finance limits in Citizens United v. FEC, and trying to get Kagan to express her personal views on the case. She declined.

“I want to make a clear distinction,” Kagan said, “between my role as an advocate and any opinions I might have as a judge.”

The result was something of a half-hour soapbox for Sen. Hatch to heap praise on Citizens United (and criticize its critics) while Kagan repeatedly distanced herself from the issue. Hatch might want to take a look at our recent poll, which shows that the critics of Citizens United include the majority of Americans.

It’s remarkable that Hatch, who has always spoken so highly of judicial restraint, is so happy to have judges overruling acts of Congress. Apparently he’s changed his opinion on “judicial activism.”


Who in the World is Thurgood Marshall??

It isn't just Republican senators on the Senate Judiciary Committee who are attacking Thurgood Marshall, the NAACP attorney and American hero whose brilliant long-term litigation strategy led to Brown v. Board of Education, the end of Jim Crow, and eventually to a seat on the Supreme Court. In fact, if they and their compatriots had their way, the next generation might not even know who Thurgood Marshall was. As our affiliate PFAW Foundation has reported, Justice Marshall just barely survived the recent ideological purge of Texas textbooks, despite urgings from Religious Right "advisors" that he be erased from history.

What we're seeing at the Kagan hearings is just part of a larger far right campaign to vilify a man who symbolized the best of America.