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Kagan File, News

AUL’s Kagan File: The Case Against Kagan


TO: [Undisclosed Parties]

FROM: Americans United for Life Legal Team

DATE: June 28, 2010

RE: Elena Kagan File:  The Case Against Kagan

Today begins the confirmation hearing for Elena Kagan to the United States Supreme Court.  Since the announcement of her nomination, we have released daily memoranda detailing our concerns about her nomination.  Today, we present our case for why she is not qualified to serve on the Court, which can be summarized in two major points:  (1) Elena Kagan will be an agenda-driven judge who will use any source of law at her disposal to achieve her desired outcome in a case, and (2) Elena Kagan is a pro-abortion ideologue who would go farther than the Court in Roe and Doe in prohibiting protections for the unborn.

First Major Point:  Elena Kagan will be an Agenda-Driven Judge who will use any Source of Law at her Disposal to Achieve her Desired Outcome in a Case.

A United States Supreme Court nominee’s judicial philosophy, i.e. the methodology that she would use to decide a case, is as relevant to whether she is qualified to serve on the Court as her intellectual ability, education, and professional experience. Supreme Court Justices should exercise restraint by applying our laws, not directing policy, or their own agendas. When judges fail to respect their limited role under our Constitution, their decisions merely reflect their personal preferences regarding public policy.  They are engaged agenda-driven judging.

Elena Kagan has never been a judge.  However, there are several aspects of her record that strongly indicate that she will be an agenda-driven judge.

Kagan’s “Judicial Hero”

  • First, in 2006, Kagan called former Israeli Supreme Court Judge Aharon Barak her “judicial hero.”  She stated that “he is the judge who has best advanced democracy, human rights, the rule of law, and justice.”  She also stated that there have been many “famous and great judges Harvard Law School [has been] associated with . . . but the Harvard Law School association of which [she is] most proud is the one with President Aharon Barak.”[1] The Honorable Justice Richard Goldstone, a former justice of the Constitutional Court of South Africa and chief prosecutor of the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia stated, “[Aharon Barak] is unashamedly what, in U.S. terms, would be regarded as an ‘activist judge.’”[2]
  • Barak has stated, “The judge may give a statute a new meaning, a dynamic meaning, that seeks to bridge the gap between law and life’s changing reality without changing the statute itself. The statute remains as it was, but its meaning changes, because the court has given it a new meaning that suits new social needs.”[3]
  • In other words, Barak believes that judges may impose their personal agendas – that is, what they believe is needed to respond to “life’s changing reality” – without any deference to elected legislatures.  In fact, Barak expects that “the need to bridge law and society will become more pressing.  Social changes are becoming more and more intensive. . . . The legislature cannot always keep pace with these changes. Society will need courts more than ever to bridge the gaps between law and life…”[4]

Kagan’s Mentor

  • Kagan described Thurgood Marshall’s constitutional interpretation as “a thing of glory”[5][6] While that may be admirable in the abstract, the reality of Justice Marshall’s opinions concerning abortion show little concern for the most vulnerable people in our country – the unborn.because he thought the role of the court was to “show a special solicitude for the despised and disadvantaged.”
  • Justice Marshall dissented in Supreme Court cases upholding restrictions on public funding for abortion and parental involvement statutes.[7] He viewed the denial of public funding for abortions for Medicaid patients as an Equal Protection violation,[8] and did not believe that parental involvement statutes even had a rational basis in the law.[9] Even Justice John Paul Stevens acknowledged that notification of only one parent and a 48-hour waiting period were reasonable restrictions on abortion.[10]

Kagan’s Writings and Statements: The Warren Court

  • In her graduate thesis,[11] Kagan wrote favorably about the Warren Court’s judicial philosophy.  She described the Warren Court as “a court with a mission… to correct the social injustices and inequalities of American life … [and] to transform the nation.”[12] Kagan stated that “the Warren Court justices set themselves a goal…and they steered by this goal when resolving individual cases.”[13]
  • This “steering” by the Court is the essence of agenda-driven judging.  Kagan did not criticize the Warren Court’s vision of a “just and fair society informing almost the whole of the Court’s constitutional analysis.”[14] Kagan only critiqued the Warren Court because it failed to write “a tenable legal argument” for its decisions regarding the exclusionary rule, leaving them vulnerable to reversal or modification by future Courts.

Kagan’s Writings and Statements:  International and Comparative Law

  • Kagan has expressed a profound affection for the study and application of international and comparative law. Under Kagan’s leadership as Dean of Harvard Law School, the school’s curriculum was changed to require the study of comparative or international law.  Strikingly, the curriculum was not changed to require the study of American Constitutional law. [15]
  • In her responses to follow-up questions from Senator Arlen Specter after her confirmation hearing for the office of Solicitor General, Kagan stated that “There are some circumstances in which it may be proper for judges to consider foreign law sources in ruling on constitutional questions.”[16]
  • Kagan’s emphasis on international and comparative law presents yet another similarity to her “judicial hero,” Judge Aharon Barak.  Barak has stated that even in the absence of a direct influence of one constitutional text upon another, there still exists “a basis for interpretive inspiration.”[17] He gives an example of where this interpretation would be proper: to determine “the scope of human rights, resolving particularly difficult issues such as abortion and the death penalty, and determining constitutional remedies.”[18] In other words, Barak is arguing that judges should look to foreign countries’ constitutions to determine how to rule on important issues, like abortion, under their own Constitutions.

Second Major Point:  Kagan is a Pro-Abortion Ideologue Who Would Go Farther Than the Court in Roe and Doe in Prohibiting Protections for the Unborn.

Kagan is a stanchly pro-abortion ideologue who has devoted her life to serving pro-abortion political candidates, judges, and office-holders.  Further, on multiple occasions she has used her positions to voice opposition to the most widely accepted regulations of abortion.

Political Activism

  • Holtzman Campaign: As an undergraduate at Princeton University, Kagan devoted “14 hours a day, six days of a week” during one of her summer breaks to working for United States Senate candidate, Elizabeth Holtzman.[19] Kagan admired Holtzman’s “intelligence, her integrity, her ideals.”[20] Among Holtzman’s core ideals were “abortion rights.”
  • Following Holtzman’s defeat, Kagan wrote that she was surprised by the election winners:  “I found it hard to conceive of the victories of these anonymous but Moral Majority-backed [candidates] . . . these “avengers of ‘innocent life.’[21] This statement raises the question of why “innocent life” is in quotation marks.  Did Kagan contest the scientific fact that the unborn are alive, or was her statement expressing doubt of their innocence?  Either way, it communicates hostility to unborn human life and to those who promote protection of unborn human life.
  • Clerkships: Kagan also clerked for pro-abortion Judge Abner Mikva and pro-abortion Justice Thurgood Marshall.
  • Dukakis and Biden: In 1988, Kagan worked as a Researcher for Michael Dukakis’ presidential campaign.  Three years before Roe v. Wade, he introduced a bill in the Massachusetts House to repeal that state`s then strongly pro-life laws.[22] In the summer of 1993, Kagan worked as special counsel to then-Senator Joe Biden on the Senate Judiciary Committee.  Biden believes the Constitution offers an “inherent right to privacy” and “strongly supports Roe v. Wade.”[23] Biden once stated that if elected President: “I would make sure that the people I sent to be nominated for the Supreme Court shared my values; and understood that there is a right to privacy in the United States Constitution.  That’s why I led the fight to defeat Bork, Roberts, Alito, and Thomas.”[24]
  • Clinton: From 1995-1999, Kagan worked for President Bill Clinton as Associate Counsel to the President, and then Deputy Assistant to the President for Domestic Policy and Deputy Director of the Domestic Policy Council.  Clinton’s anti-life actions included vetoing the Partial-birth Abortion Ban passed by Congress twice;[25] reversing the Mexico City Policy, allowing federal funding to go to groups that perform or promote abortion;[26] and supporting the Freedom of Choice Act (which would have codified Roe and Doe into federal statutory law).[27]

Memo to Marshall

  • Funding for Prisoners’ Abortions: In April of 1988, Elena Kagan wrote to Justice Thurgood Marshall that a Circuit Court decision mandating taxpayer funding for the elective abortions of inmates was “well-intentioned,” but poorly reasoned.[28] However, despite Kagan’s belief that the decision was “quite ludicrous”[29] in part, she recommended Marshall vote against reviewing the case because “this case is likely to become the vehicle that this Court uses to create some very bad law on abortion.”[30]
  • The only logical explanation for Kagan’s concern that this case could be a “vehicle … to create very bad law on abortion” is that Kagan did not want the Court to reinforce or extend its holdings in Beal v. Doe,[31] Maher v. Roe,[32] and Harris v. McRae[33] that the State is not required to pay for elective abortions. 

Academic Writings

  • Elena Kagan has extensively criticized the Supreme Court decision in Rust v. Sullivan,[34] where the Court upheld the constitutionality of Dept. of Health and Human Services’ regulations that prohibit Title X family planning funds from being “used in programs where abortion is a method of family planning.”  This prohibition also applies to promoting and counseling on abortion.  Kagan argued that the Title X regulations amount to unconstitutional viewpoint discrimination.[35]
  • In other words, Kagan believes that it is unconstitutional for the federal government to fund speech that promotes childbirth while prohibiting funding for speech that promotes abortion.  In contrast, the United States Supreme Court held that the government may “make a value judgment favoring childbirth over abortion, and . . . implement that judgment by the allocation of public funds.”[36]

The White House:  Abortion

  • While working in the Clinton White House policy, Kagan was heavily involved in advising the President on life issues and crafting his related policy positions.  In fact, she was specifically assigned “abortion” in the White House Counsel’s Office[37] and “choice” while serving on the Domestic Policy Counsel.[38] During this time, Kagan consistently promoted anti-life positions that at times extended beyond what President Clinton was inclined to do.
  • In January of 1996, Kagan drafted a memo advising Clinton to oppose the Partial-Birth Abortion Ban of 1995 (the memo was signed by Jack Quinn).[39] The following month, when President Clinton decided to adopt a policy position supporting a weaker “ban” on partial-birth abortion, Kagan viewed his position as “a problem.”[40] She promptly drafted a memo arguing that the President’s approach “is unconstitutional, because it prohibits the use of the partial-birth procedure in any pre-viability case in which the woman desires the abortion for non-health reasons. . . .”[41] In other words, she believed that any ban that extended to pre-viability abortions for any reason was unconstitutional.[42]
  • She recommended instead that President Clinton support an approach that would allow a woman to have a partial-birth abortion under a “health exception” that extended beyond what the Court required in Roe and Doe.[43] In other words, her “ban” was not really a ban at all.
  • Kagan succeeded in changing President Clinton’s position.  Congress did not amend the bill, and President Clinton vetoed it on April10, 1996.
  • Further, in a December 14, 1996 memo, Kagan wrote in response to a proposed statement by ACOG that partial-birth abortion is never medically necessary that “This [the release of the statement], of course, would be disaster — not the less so (in fact, the more so) because ACOG continues to oppose the legislation.”[44] Also, when discussing whether the American Medical Association (AMA) could reverse its policy at its convention that there is not an identified situation in which partial-birth abortion is the only appropriate method of abortion, ethical concerns surround it, and that it should not be used unless it is absolutely necessary, she stated “We agreed to do a bit of thinking about whether we (in truth, HHS) could contribute to that effort. Chuck and I are meeting with the AG on Tuesday; Donna offered to send over some doctors this week (though we don’t know who or when) to give a medical briefing.”[45]
  • In other words, Kagan was so opposed to the passage of a ban on partial-birth abortion that she hoped that ACOG and the AMA would suppress or modify their views, and was aggressively tried to make that happen.
  • Kagan later advised the President to support a phony late-term abortion “ban” to give “cover for pro-choice Senators” who did not want to support a real partial-birth abortion ban.[46]

The White House:  Other Life Issues

  • Physician Assisted Suicide: Kagan has expressed a disregard for the sanctity of human life in other contexts as well. In 1997, following the State of Oregon’s failure to repeal its law legalizing physician assisted suicide (PAS), some members of Congress responded by supporting a federal ban on the practice.  In a hand-written note at the top of a DOJ memorandum, Kagan wrote that she thought making physician assisted suicide a federal crime was “a fairly terrible idea.”[47]
  • Cloning:  Kagan played a key role in shaping and executing the President’s response to the development of new cloning technology.  In a May 29, 1997 memo to the President, Kagan and Jack Gibbons (Assistant to the President for Science and Technology) recommended:  “that [the President] support domestic legislation banning human cloning.”[48] However, as the memo explains, Kagan’s “ban” on cloning only banned the use of cloning aimed at the live-birth of a baby, not at cloning that takes human life.
  • The cloning of human embryos creates living human beings in the earliest stage of development.  “Using them for research” means they will be “disaggregated” and killed as part of the research.  By endorsing such practices, Kagan demonstrated her disrespect for unborn human life.
  • Kagan’s involvement in cloning policy was not limited to writing memos.  Over the course of several months, she was in frequent dialogue with other administration officials about the content of Clinton’s legislative language, which Congressional proposals they should support or oppose, and how much they could work with Senate Republicans.


Solicitor General Kagan’s record is a jigsaw puzzle. However, when the pieces come together, the picture is bleak for the Constitution and protections for innocent life.  Our concern is not simply that Kagan will be another judge who supports upholding Roe v. Wade.   Rather, we are concerned that even the most widely-accepted regulations on abortion will not withstand her review.

Our concerns extend to the end of life as well.  If physician assisted suicide becomes legal in more states, legislatively or through state courts, activist U.S. Supreme Court justices might determine that “societal changes” or a new “social consensus” require revisiting the Court’s decisions in Washington v. Glucksberg[49] and Vacco v. Quill,[50] which held that there was no right under the U.S. Constitution to assisted suicide.

Kagan’s disregard for the value of human life at its most vulnerable stage creates concerns about how she will consider common sense abortion regulations and other cases that will come before the Court.  She is deeply hostile to protecting the unborn, even when abortion is not an issue.

[1] “Israel’s Aharon Barak Receives 2006 Gruber Justice Prize.” http://www.gruberprizes.org/PressReleases/PressRelease_2006_Justice.php,

[2] 48 Harv. Int’l L.J. Online 54 (2007).

[3] Aharon Barak, The Judge in a Democracy. Princeton: Princeton University Press. 2006, p. 306-7, 4.

[4] Id. at 310-11 (emphasis added).

[5] Elena Kagan, For Justice Marshall, 71Tex L. Rev. 1125, 1130 (1992).

[6] Id. at 1129.

[7] See Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980); H.L. v. Matheson, 450 U.S. 398 (1981); Hodgson v. Minnesota, 497 U.S. 417 (1990).

[8] Beal, 432 U.S. at 454; Maher 43 U.S. at 337.

[9] Matheson at 445, 453-4 (“The State cannot have a legitimate interest in adding to this scheme mandatory parental notice of the minor’s abortion decision.”)

[10] Hodgson at 449.

[11] “The Development and Erosion of the American Exclusionary Rule,” Elena Kagan, Oxford University, June 27, 1983, http://judiciary.senate.gov/nominations/SupremeCourt/upload/ElenaKagan-OxfordThesis.pdf.

[12] Id. at 40.

[13] Id. at 40.

[14] Id. at 41.

[15] See http://www.courts.state.nh.us/press/Kagan_NH_speech_distribution.pdf.

[16] March 18, 2009 letter to Senator Specter,

[17] Id. at 201.

[18] Id. at 201.

[19] The Daily Princetonian, November 10, 1980, available at http://www.dailyprincetonian.com/2010/05/03/26082.

[20] Id.

[21] Id. (emphasis added).

[22] See http://articles.chicagotribune.com/1988-08-13/news/8801230321_1_abortion-unborn-dukakis.

[23] See http://www.ontheissues.org/Social/Joe_Biden_Abortion.htm.

[24] Id.

[25] See http://www.abortionfacts.com/partial_birth/congressional_bans.asp.

[26] See http://abcnews.go.com/Politics/International/story?id=6716958&page=1.

[27] See http://www.clintonmemoriallibrary.com/clint_abort.html.

[28] Elena Kagan, Memo to Justice Thurgood Marshall on Lanzaro v. Monmouth County (1988) (Reproduced from the Collections of the Manuscript Division, Library of Congress) (hereinafter, “Marshall Memo”).

[29] Kagan, Marshall Memo, supra, n. 28 at 2.

[30] Id.

[31] Beal v. Doe, 432 U.S. 438 (1977).

[32] Maher v. Roe, 432 U.S. 464 (1977).

[33] Harris v. McRae, 448 U.S. 297 (1980).

[34] 500 U.S. 173 (1991).

[35] See Elena Kagan, The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion,1992 Sup. Ct. Rev. 29 (1992).

[36] 500 U.S. 173, 192-3 (citing Maher v. Roe, 432 U.S. 464, 474 (1977)).  See also Harris v. McRae, 448 U.S. 297(1980).

[37] http://www.clintonlibrary.gov/KAGAN%20COUNSEL/KAGAN%20Counsel%20-%20Box%20001%20-%20010.pdf, p. 3236.

[38] http://www.clintonlibrary.gov/KAGAN%20E-Mail%20SENT/KAGAN-ARMS%20SENT%20Boxes%2001-10.pdf, p. 1220.

[39]http://www.clintonlibrary.gov/KAGAN%20DPC%201/DOMESTIC%20POLICY%20COUNCIL%20BOXES%2069-70.pdf, p. 173.

[40] Id. at 182.

[41] Id. at 178.

[42] In Gonzales v. Carhart, 550 U.S. 124 (2007), the United States Supreme Court upheld the constitutionality of the Partial-Birth Abortion Ban of 2003, which prohibited the use of the procedure during the entire pregnancy and did not include a health exception.

[43]http://www.clintonlibrary.gov/KAGAN%20DPC%201/DOMESTIC%20POLICY%20COUNCIL%20BOXES%2069-70.pdf,, pp. 179-180.

[44] Id. at 1336.

[45] http://clintonlibrary.gov/KAGAN%20E-Mail%20SENT/KAGAN-ARMS%20SENT%20Boxes%2001-10.pdf, p. 1759.

[46]http://www.clintonlibrary.gov/KAGAN%20DPC%201/DOMESTIC%20POLICY%20COUNCIL%20BOXES%2069-70.pdf,, p. 1336.

[47] http://www.clintonlibrary.gov/KAGAN%20DPC/Corrections/DPC%20-%20Box%20002%20-%20Folder%20011.pdf., p. 31.

[48] http://www.clintonlibrary.gov/KAGAN%20DPC/DPC%205-17/DOMESTIC%20POLICY%20COUNCIL%20BOXES%205-30_Part35.pdf, p. 46.

[49] 521 U.S. 702 (1997).

[50] 521 U.S. 793 (1997).