Kagan Hearings: Gags, God, Guns, and Gays

by Lindsay Beyerstein, Media Consortium blogger

Elena Kagan’s Supreme Court confirmation hearings kicked off on Monday. Her nomination has been met by glum resignation on the left and indifference on the right, as Adam Serwer notes in the American Prospect. Kagan is hoping to replace the Supreme Court’s most prominent liberal, Justice John Paul Stevens, who stepped down earlier this week. Progressives are counting on Kagan to shore up the pro-choice faction on the court.

Kagan has never been a judge and she hasn’t published very many academic law opinions. As a result, the confirmation process is leaning heavily on her counsels to President Bill Clinton as a White House adviser, her clerkship with legendary liberal Supreme Court Justice Thurgood Marshall, and her stint as Dean of Harvard Law School.

Kagan on choice


RH Reality Check has video of a key exchange in Kagan’s confirmation hearing yesterday, in which Sen. Diane Feinstein (D-CA) pressed Kagan on her views about life and health exemptions for the mother within abortion bans.

“Do you believe the constitution requires that the health of the mother be protected in any statute restricting access to abortion?” Feinstein asked Kagan.

“Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation,” Kagan replied.

That’s a good start, but it’s hardly the ringing endorsement of choice that progressives would have hoped. Kagan went on to talk the special case of “partial birth abortion bans,” which she encouraged Bill Clinton to support while he was president. “Partial birth abortion” isn’t even a medical term. It’s a marketing term coined by anti-choicers in their bid to chip away at Roe v. Wade. For pro-choicers, it’s disappointing to see Kagan uncritically buying into that frame.

Title X and the Gag Order

Jodi Jacobson discusses Kagan’s record on choice issues in greater detail at RH Reality Check. She notes that the Center for Reproductive Rights reviewed Kagan’s record and raised many questions about her views on abortion. On the bright side, CRR believes that Kagan would have struck down the Title X gag rule. Title X was established in 1970 to provide public funding for reproductive health care, including birth control.

In 1988, the Secretary of Health and Human Services imposed a so-called “gag rule” that prevented doctors from talking about abortion and required them to refer patients to services for the welfare of “the unborn.” Kagan argued in a 1992 law review article that the gag order violated the First Amendment because the government was trying to silence one point of view while promoting another.

However, in a memo for Justice Thurgood Marshall, Kagan said it was “ludicrous” that a lower court found that the Eighth Amendment guarantees elective abortions for women in prison. Kagan disagreed with the lower court’s finding that elective abortions are “serious medical needs.”

Obamacare all over again

A Supreme Court confirmation hearing is like Shark Week on the Learning Channel. Chum’s up!

Sen. Jeff Sessions (R-AL) criticized Kagan for rejecting the fringe legal theory of “tentherism,” a position that opponents of health care reform have used to argue that Obamacare is unconstitutional. As Ian Millhiser observes in AlterNet, it’s ironic that Sessions also criticized Kagan as an incipient “activist judge.” Embracing “tentherism” would be nothing if not judicial activism. It’s extremely unlikely that any tenther-based challenge would make it to the Supreme Court.

Outside the Senate chamber, anti-gay activist Peter LaBarbera is demanding to know whether Dean Kagan schemed to allow transgender people to use the bathroom of their choice, reports Stephanie Mencimer of Mother Jones.

Some Republican senators questioned Kagan about her decision to bar military recruiters from school-sponsored recruiting events at Yale Law School over Don’t Ask Don’t Tell. On the outside, a Yale grad and Republican activist named Flagg Youngblood has taken to the talkshow circuit to complain about how he had to attend ROTC drills at another school. It’s not clear why any of this is Kagan’s problem, seeing as she was Dean of Harvard and took a much weaker stance on military recruiting.

That’s not cooling Youngblood’s apocalyptic anti-Kagan rhetoric, though, Adam Weinstein reports in Mother Jones. “In the last 18 months, the president and his plotting comrades have dragged the United States to the edge of Constitutional oblivion. America’s in the eleventh hour, and Elena Obama must be stopped from pushing us over the cliff,” Youngblood recently proclaimed.

Part of the plan

Meanwhile in Nevada, Republican Senate hopeful Sharron Angle is in hot water for asserting that women who get pregnant through rape must be forced to give birth because these pregnancies are all part of God’s plan. Good catch by Vanessa Valenti of Feministing.

“You know, I’m a Christian, and I believe that God has a plan and a purpose for each one of our lives and that he can intercede in all kinds of situations and we need to have a little faith in many things,” Angle said in an interview with a conservative broadcaster in January.

This post features links to the best independent, progressive reporting about health care by members of The Media Consortium. It is free to reprint. 

Photo: photoxpress.com


Joseph B.
Joseph B7 years ago

The issue for me is will Kegan follow the Constitution and interpet it as written, not legislate liberal laws (and expunge conservative ones) that can't be won at the ballot box so that includes God , and abortion which should have NEVER been decided in the first place by the Supreme Court but left to the States to decide-
We have seen unconstitutional overreach by dare I say Liberal members of the Court frequently ,( indeed even the Obama Administration) and the last thing we need is Judges that legislate from the bench!!
As in all things look to the Constitution for all things, not re-write it!
Liberal "Legislate from the Bench types ultimately take away the peoples right to propose new laws and petition the Government for redress of wrongs- This will effect all of us no matter which side of the fence you are on-

writer fool
writer fool7 years ago

OOOPS ,sorry, i didnt think first post went through...

writer fool
writer fool7 years ago

Susan, Amen sister,... Senator Jeff Sessions Republican from Alabama also asked Ms. Kagan where she was on Christmas... That was a dig and a reminder that Ms. Kagan is Jewish. Certainly he wanted EVERYONE to know she was NOT in Church, nor would she ever be. I wonder ,would Sen. Sessions have asked that question of Justice thomas, Alito, Or chief justice Roberts? Otherwise, who in the world cares where anyone was last christmas??? I was hysterical and roared with laughter at her answer.. she stated,"I was probably at a Chinese resturant like any good jew would be." Wonderfully witty :*)

writer fool
writer fool7 years ago

Susan, Amen sister...
By the way, Sen. Sessions (AL-R) asked ms. Kagan where she was last Christmas. I wonder, would he ask that of Justice Alito,Thomas, or Chief Justice Roberts..? Just a thought.
I took this as a dig or reminder to others that Ms. Kagan is Jewish. Her answer to him was wonderfully witty... she stated,"I was probably at a Chinese restaurant, like any good jew would be." I thought it was hysterical, and roared with laughter....

Pat Tyler
Pat Tyler7 years ago

We have a good candidate for the Supreme Court...

Susan Roth
Susan Roth7 years ago

Just get her confirmed! I am so sick of the Republicans refusing to cooperate on anything -even if they originally proposed it-like some of the health reform measures. Stop playing with the lives of Americans- start doing something other than spreading misinformation and refusing to do anything that might help us right now with the mess that this country is in! And Tea party people- you are the best thing that ever happened to corporate America- you are the nail in the coffin for organized labor-fighting for ALL to be paid a decent wage, and have benefits so you don't lose your house to save a sick kid, you are helping destroy real liberty by listening to half truths- you want to throw out all the politicians- but who are you putting in their place??Do you know even who is funding all this tea party crap?? When it is all said and done, and even if you get your way- we will be far worse off than we are now, but hey, you won't have to worry about Illegal immigrants- there won't even be work for them either!

lorraine callahan
lorraine c7 years ago

I think it's a good thing that another liberal will become a supreme court justice. It seems to work better with a fairly even mix.

Jack B.
Jack B7 years ago

As with any other politician, she will say anything to get elected. She will than vote whatever way she wants, even if she had promised to vote another way.

Philippa P.
Philippa P7 years ago


Jonathan Y.
Jonathan Y7 years ago

Usually Supreme Court confirmations are knock-down drag-outs between the left and right.

The reason this isn't is that a moderate liberal justice is replacing another moderate liberal, Stevens, and she's competent and well-liked.

Yes the Conservatives have been trotting out their usual shibboleths about Gays, Guns, God, and Girl's rights, they've been gagging us with the 4G's since Reagan and Goldwater.

But their opposition to Kagan is merely token. Just wait until a conservative justice retires or gets sick; it will be a civil war like the Bork or Thomas hearings.