Abortion could be sleeper issue in Supreme Court confirmation process

By Michael D. Shear
Washington Post Staff Writer
Tuesday, May 11, 2010; 11:09 AM

In the hours after President Obama introduced Elena Kagan as his choice for the Supreme Court, there was little talk about her position on abortion, an issue that has faded from the political forefront during the past year's economic crises.

But Kagan's take on Roe V. Wade could become a sleeper issue during the next six weeks, as activists on both the left and the right seek to better understand how the solicitor general might rule on a right to privacy if she is confirmed to the court.

The answer to that question got a little bit clearer late Monday afternoon as the Associated Press reported on what it said was a 1997 memorandum authored by Kagan during the time she advised then-President Bill Clinton.

According to the AP, the May 13, 1997, memo shows Kagan arguing that Clinton should support a compromise ban on late-term abortions as a way of avoiding a congressional override of his veto on a more restrictive, Republican bill. The compromise bill had been authored by then-Sen. Tom Daschle (D-S.D.)

"We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto," Kagan and her boss, Bruce Reed, wrote, according to the AP.

White House spokesman Ben LaBolt said Tuesday that Kagan's memorandum does not necessarily represent her personal views, and he noted that Chief Justice John Roberts offered a similar explanation during his confirmation hearing of memos that he had written as a government attorney.

"Judges confront issues differently than staff attorneys for an administration with a position," Labolt quoted Roberts as saying. "As a White House aide, Elena Kagan provided legal advice and evaluated policy proposals for President Clinton, who like President Obama, supported a late-term abortion ban with a narrow exception for the health of the woman."

For the Obama White House, the prospect that Kagan might support tougher restrictions on abortion presents a complicated set of political opportunities and risks. The revelation may help to mute right-wing groups who often use support for abortion rights as a way of attacking a nominee.

Those attacks have already begun. The American Life League issued a statement before the AP story came out, saying they have little doubt that Kagan supports abortion rights. "Make no mistake -- the grassroots pro-lifers (who make up 51 percent of Americans according to Gallup) are incensed by this choice," said the group's communications director, Katie Walker.

But the 1997 memorandum may give further rise to the concerns already expressed on Monday by liberal groups, who fear that the lack of evidence of Kagan's strong support for abortion rights throughout her career suggests that she will not be an advocate for their cause on the court.

In a cautious statement issued shortly after Kagan's nomination, Nancy Keenan, president of NARAL Pro-Choice America, wrote that "We call on the Senate to give Solicitor General Kagan a fair hearing and look forward to learning more about her views on the right to privacy and the landmark Roe v. Wade decision."

Cecile Richards, president of Planned Parenthood Federation of America, was more supportive of Kagan, calling her "an accomplished and experienced lawyer and legal scholar who has been a trailblazer throughout her career. . . . We are confident that Kagan will bring the dedication and commitment that have marked her career with her to the highest court in the land."

The differences in reaction among abortion rights activists mirrors a larger split among liberals in their initial response to Kagan on Monday.

Many groups on the left issued ringing endorsements of the first female Harvard Law School dean. Nan Aaron of the Alliance for Justice wrote that Obama's selection of her was a "historic step forward for women" and said she will "bring to the Court a respect for core constitutional values and a willingness to stand up for the rights of ordinary Americans."

But other liberal groups have expressed concern that Kagan represents a kind of middle-of-the-road consensus builder, not the full-throated advocate for liberal, populist, anti-corporate causes that they want represented within the walls of the Supreme Court.

To some liberals, Kagan is the second strike for Obama, whose selection of Sonia Sotomayor was initially hailed by the left before being considered a disappointment. At Sotomayor's confirmation hearings, some on the left say she too easily accepted criticism by conservatives of activist judges.

If there is a lack of passion for Kagan among some on the left, it is unlikely to affect the outcome of her confirmation. With 59 votes in the Senate, the Democrats are virtually assured of getting confirmation unless a political bombshell drops before the hearings.

But the confirmation process is playing out in the months before this year's midterm congressional elections, and some Democrats were hoping to use a fight over abortion to whip up women, who are a key Democratic constituency.

Still, the White House is hoping for a quick confirmation process, betting that the last thing that voters want to see as they are going to the polls is another endless war of words between politicians in Washington.

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