When it comes to the abortion issue in a Democratic Supreme Court nomination, everybody plays their preassigned role. Pro-choice groups say they are encouraged by what they’ve heard and want to hear more. The opposing side says it’s deeply concerned. The nominee says she respects judicial precedence, stare decisis, and all that, and won’t answer hypothetical questions. And the president says he doesn’t have a litmus test.
Abortion opponents suspect President Obama, being a Democrat, has a litmus test nonetheless, and abortion-rights advocates fret that Obama, with his centrist leanings, may not care about their issue quite as much as they do. In the middle of all this, a leaked memo appears, written on May 13, 1997, by Elena Kagan when she was a senior domestic-policy adviser to President Clinton, that may shed some light on where she stands on abortion rights.
The memo advises Clinton to support a Senate compromise banning late-term abortions but with an exception for the health of the mother. These were the Gingrich years when Republicans controlled Congress for the first time in 40 years, and were flexing their muscles. Newt Gingrich had kept social issues out of the “Contract With America,” but the newly empowered right-wing majority needed to pay back their base. And they were smart about it, crafting initiatives that to most people seemed reasonable, like parental notification, and devising language to put the other side on the defensive, like calling an abortion performed in the last trimester a “partial birth” abortion, a vivid phrase developed by Republican pollster Frank Luntz.
It was a tough political environment for Clinton and the Democrats, who were made to look like they were the extremists in battling limits on abortion. It was the first time in the long standoff since the passage of Roe v. Wade in 1973, and the Democrats’ adoption of the phrase “pro-choice,” that anti-abortion activists had gained the upper hand. What Kagan told Clinton in her memo is that the Republicans had him boxed in. The “partial birth” abortion ban was sure to pass, and she reminded Clinton that he had often said that abortion should be safe, legal, and rare.
Supporting the compromise would be consistent with his values, and she doubted that the Democrats could muster the votes to sustain a veto. She was looking for a middle ground that would head off a worse outcome. “It was a political calculation more than a memo reflecting some point of view,” says Nan Aron, president of Alliance for Justice, a liberal group. With the ban certain to pass, she was “trying to get as much as possible for women in a hostile environment,” says Karen O’Connor, founder of the Women & Politics Institute at American University.
A very small number of abortions, fewer than 1 percent, take place in the last trimester, and if an exception for the mother’s health were included, it would be, as students learn in law school, “the exception that swallows the rule.” The compromise Kagan championed failed. The Senate passed the more extreme version, which Clinton vetoed, and which he was able to sustain even in the Republican-controlled Congress. The victory was short-lived, however, when another Republican Congress in 2003 passed the same bill, which was then upheld by the Supreme Court in 2006 in a 5–4 decision, with Bush appointees John Roberts and Samuel Alito securing the conservative majority.
What does this episode reveal about Kagan, and about the president who nominated her for the court? It tells us that she’s a consensus seeker, which was the storyline on her from the beginning. Obama sees in her a reflection of himself and the values he’s attempting to bring to government. She’s a pragmatic politician who is exercising the same kind of skills that she did as the dean of Harvard Law School, trying to bring peace between warring factions. “She searches for sensible compromise positions on tough issues,” says Matt Bennett, a cofounder of the centrist Democratic group Third Way. “She is the perfect Obama nominee.”
What little grumbling there is on the left is coming from progressive groups who were rooting for federal appeals Judge Diane Wood, whose strong rulings in support of abortion rights probably took her out of the running. The White House is betting that Kagan will be easier to confirm because of her lack of a judicial record, but the five years she spent in the Clinton White House in both the counsel’s office and the domestic-policy staff are a treasure trove for critics searching for something to bring down her nomination. The hundreds of memos she wrote could prove more problematic in her confirmation than any rulings in an open court. The Senate Judiciary Committee will demand and inevitably get them, just as they did the memos Roberts wrote as a young aide in the Reagan White House.