Memos From Kagan's Clerkship For Thurgood Marshall Include Abortion Cases

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice
Article Date: 27 May 2010 - 3:00 PDT

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Memos pertaining to abortion cases that Supreme Court nominee Elena Kagan authored during her yearlong clerkship for former Supreme Court Justice Thurgood Marshall could become an issue during her confirmation hearings, the AP/Boston Globe reports. The memos were released from Marshall's files at the Library of Congress.

In a 1988 memo, Kagan advised Marshall to vote to reject the Supreme Court's acceptance of a Monmouth County, N.J., case concerning abortions for female prison inmates. Kagan described the lower court's decision to force the county to finance prisoners' elective abortions as "well-intentioned" but called parts of the decision "ludicrous." She wrote, "This case is likely to become the vehicle this court uses to create some very bad law on abortions and/or prisoners' rights." She said that women in general do not have the right to have their abortions paid for, adding, "I do not see why prisoners should have such rights." The Supreme Court did not hear the case.

During her confirmation hearings to become solicitor general, Kagan said she attempted to "channel" Marshall's views in memos during her clerkship, rather than express her own positions. Brad Snyder, a professor of law at the University of Wisconsin, said, "You can't draw too many conclusions from these memos."

Some Senate Republicans have indicated that they may emphasize Kagan's clerkship with Marshall -- whom they characterize as an activist judge more concerned with outcomes in a case than rules -- during confirmation hearings. Snyder said, "There's a danger of saying if Kagan clerked for Marshall she must be an off-the-charts liberal. There's no formula, but it will be interesting what she chooses to say about Thurgood Marshall, the judge, at her confirmation hearings" (Sherman/Gresko, AP/Boston Globe, 5/26).

Advocates on both sides of the abortion debate already have speculated on Kagan's views on the issue. Americans United for Life, which opposes abortion rights, described Kagan's record on abortion as "problematic" and said it believes she would issue "decisions like Roe v. Wade" (Kiely, "The Oval," USA Today, 5/25). Rep. Louise Slaughter (D-N.Y.), co-chair of the House Pro-Choice Caucus, has pressed the Senate Judiciary Committee to closely question Kagan about her views on abortion rights following the release of a 1997 memo Kagan authored while working as a policy adviser in the Clinton White House. The memo urged the president to support a compromise ban on abortion later in pregnancy with exceptions for risks to the woman's health (Women's Health Policy Report, 5/19).

On Wednesday Kagan is scheduled to meet with Sens. Michael Bennet (D-Colo.), Johnny Isakson (R-Ga.), Joseph Lieberman (I-Conn.) and Jon Tester (D-Mont.). Confirmation hearings are set to begin June 28 ("The Oval," USA Today, 5/25).

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