If the intent of Elena Kagan’s testimony in the Senate Judiciary Committee is to build confidence in her competence, her answer to Orrin Hatch about a controversial memo has to be a huge step in the wrong direction. Despite the issue having been in the news for the last 24 hours and the centrality of it to the Clinton-era efforts to stop a ban on partial-birth abortion, Kagan initially claimed ignorance of the issue. Only when pressed did Kagan recall her intentions, as Byron York and LifeNews‘ Steven Ertelt both report this afternoon:
“Did you write that memo?” Hatch asked.
“Senator, with respect,” Kagan began, “I don’t think that that’s what happened — ”
“Did you write that memo?”
“I’m sorry — the memo which is?”
“The memo that caused them to go back to the language of ‘medically necessary,’ which was the big issue to begin with — ”
“Yes, well, I’ve seen the document — ”
“But did you write it?”
“The document is certainly in my handwriting.”
But after finally admitting that she wrote it, she then dismissed it:
Hatch continued to press Kagan about the document, and she ultimately told Hatch she didn’t think she had the power to alter ACOG’s statement: “there was no way I could have or would have intervened” in ACOG drawing up its own opinion.
Kagan said she wrote the memo to present the “most accurate understanding” of what ACOG thought about partial birth abortion and said ACOG’s original statement didn’t represent the totality of what it thought about partial-birth abortion as originally expressed to the Clinton administration. …
“They could think of circumstances in which it was the best or most appropriate procedure and that it was the procedure with the least risk” for women’s health. “We informed President Clinton of that fact and there did come a time when we saw a draft statement and I had some discussion with ACOG about that draft.”
“I recall generally talking to ACOG about that statement and about whether that statement was consistent with the views we knew they had,” [she] said to explain away the criticism.
“The document is certainly in my handwriting” is a way to say, “I’m not going to explicitly admit writing it.” Otherwise, why not just say, “Yes, I wrote it”? Note also the “I recall generally talking to ACOG” rather than “this is what I wrote and why I wrote it.” It’s deceptive and only somewhat responsive to what Hatch asked and why he asked it.
In other words, it’s more or less an Urkel defense of saying, “Did I do that?” Kagan seemed ill prepared to discuss the memo, despite the debate that has erupted since yesterday over its meaning. When she did discuss it, she did so in an evasive manner. I doubt seriously that this alone will derail her confirmation, but this evasiveness plus her utter lack of judicial experience should have Senators questioning the wisdom of this choice, and questioning Kagan with more enthusiasm on her track record as a political activist within the Clinton administration.
Update: Shannen Coffin, who published the memo and its edits, responds at National Review:
First, the ACOG task force — formed specifically and solely for the purpose of studying the medical efficacy of the procedure — met for two full days in October 1996, and the result of their collective work was a statement concluding only that it could identify no particular circumstances where the partial-birth method might be the only method to save the health or life of the mother, but that the committee thought it important to leave that judgment to the individual doctors — that is, a policy statement that Congress should stay out of it. After they deliberated in October 1996, the task force forwarded its draft statement to the ACOG board. It was only then that Kagan stepped in to suggest changes.
Therefore, any suggestion that her work was merely the synthesis of the task force’s deliberations doesn’t account for that time line — she had no interaction with the task force itself, only the executive board of ACOG.
Second and more significant, the White House had already met with ACOG’s former president and current chief lobbyist (to whom Kagan’s revisions were addressed) in June 1996, before the special task force was even formed. At that meeting (which apparently Kagan did not attend but recounted in a memo to her bosses, dated June 22, 1996), Kagan wrote that the White House staffers were basically told that ACOG couldn’t identify any particular circumstances where the procedure was medically necessary.
Coffin quotes from the relevant memo that makes this even more clear. Perhaps another Republican on the panel will pick this up where Hatch left off.