With no judicial record to review, it's hard to see how Elana Kagan would rule on any number of issues were she to be confirmed. The confirmation process won't help, because we all know how reluctant nominees are to say anything that might be construed as an opinion. But neither does the memo she wrote urging President Bill Clinton to ban late-term abortions, reported on by the Associated Press.
The deal Kagan wanted Clinton to support was a compromise: Republicans wanted a stricter ban that didn't allow exceptions for the health of the mother, and Kagan noted the Justice Department thought it was unconstitutional anyway. Supporting the compromise ban was a political calculation.
As RH Reality check and others note, this is disheartening, but I don't find it surprising. Late-term abortions is where many who say they support reproductive rights often waver, and Republicans had pretty successfully dubbed the procedure "partial-birth abortion," which people neither understood nor liked. I hope for a day when all abortion issues are viewed rationally and not emotionally, but that day wasn't in 1997.
It also doesn't tell us much about how Kagan would do in her new job. Kagan worked for Clinton then, and her job was to advise him. Her job as a Supreme Court justice would be much different, and we just don't have a sense of what she would do in another position.
-- Monica Potts
