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AUL vs. White House on Kagan 



WASHINGTON, D.C. - (6/23/2010) - Americans United for Life’s President and CEO, Dr. Charmaine Yoest, observed today that the White House’s attempts to drown out opposition voices to Supreme Court nominee Elena Kagan are falling flat.

News reports indicate that the White House appeared to release some colleague endorsements as more serious figures weighed into the debate on Kagan’s qualifications.

According to Politico, “Yesterday, in advance of the AUL conference, the White House organized a conference call of its own with three people who were fellow Supreme Court law clerks with Kagan in1987 and 1988, at the time she clerked under Marshall. They stuck closely to the administration’s script: Kagan, they said, was fair-minded and nonideological.”

Stories that some former office mates found her pleasant and that her work needed few corrections ran alongside of stories of AUL’s virtual news conference Wednesday with legal luminaries Judge Robert Bork, William Saunders and Professor Gerard Bradley. The three urged the Senate to refuse to endorse her confirmation to the high court because of the radical political positions she has taken in her career and because of the people she has extolled as her heroes.

“Judge Bork and our distinguished legal experts substantively outlined Elena Kagan’s agenda-driven judicial philosophy, a philosophy that is  far outside the boundaries of our Constitution,” said Yoest. “This nomination is not about personality, it’s about an attempt to grant a lifetime appointment to a political operative who has already pre-judged important issues like abortion. The American people want an impartial justice who will interpret the law and they are finding out very quickly that Elena Kagan is anything but impartial.”  

For more information on Kagan’s legal record, check out the Kagan File at

On Background:

Some of the stories in question:


Dahlia Lithwick on Twitter sometime around 11 a.m. today:


# # #

Americans United for Life (AUL) is a nonprofit, public-interest law and policy organization whose vision is a nation in which everyone is welcomed in life and protected in law. The first national pro-life organization in America, AUL has been committed to defending human life through vigorous judicial, legislative, and educational efforts at both the federal and state levels since 1971.

AUL's legal team has been involved in every pro-life case before the U.S. Supreme Court including the successful defense of the Hyde Amendment. AUL also publishes Defending Life, the most comprehensive state-by-state legal guide of its kind, which is distributed annually to legislators across the nation.

Recently, Americans United for Life detailed the facts on taxpayer-funding of abortion during the debate over federal health care legislation, provided legal assistance to states working to opt out of abortion provisions created by federal health care law, and has played a major role in educating policymakers on the record of Supreme Court nominee Elena Kagan.


NRLC Urges Senators to Oppose Kagan Confirmation 


The National Right to Life Committee (NRLC), representing the affiliated Right to Life organizations in all 50 states, today sent a letter urging members of the U.S. Senate to oppose the confirmation of Elena Kagan to the U.S. Supreme Court.

The letter is posted on the NRLC website here:


AUL - Kagan File: The "Confirmation Mess" Memo 

Kagan’s Upcoming Confirmation Hearing: Another “Confirmation Mess”?


Before a new Supreme Court justice takes office, she is required to take an oath to uphold and remain loyal to the U.S. Constitution.  The Justice promises to “administer justice…under the Constitution and laws of the United States”[1] and “to support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the [Constitution]; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter.”[2]    

Vague or evasive answers have characterized some of the confirmation hearings of some recent Supreme Court nominees.  Supreme Court nominee Elena Kagan herself has lamented the failure of Stephen Breyer and Ruth Bader Ginsburg to give adequate answers during their confirmation hearings: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”[3]  Kagan stated that [a] nominee, as I have indicated before, usually can comment on judicial methodology, on prior case law, on hypothetical cases, on general issues like affirmative action or abortion.”[4]

  • Will Kagan answer questions posed to her next week to “educate the public” on her judicial philosophy and allow Senators to “properly evaluate” her?

Kagan highlights the confirmation hearings of Ruth Bader Ginsburg and Stephen Breyer to give examples of where nominees failed to answer questions.  She refers to their hearings as “official lovefests” because they “confronted no unfair or nasty opposition.”[5]  She states that “both nominees felt free to decline to disclose their views on controversial issues and cases”, and that this caused the confirmation hearings to “[lack] seriousness and substance... [, becoming a] troubling confirmation mess.”[6] 

  • Will Kagan decline to “disclose her views on controversial issues and cases” like abortion and Roe v. Wade? 
  • Will her confirmation hearing “lack seriousness and substance” or will she adhere to the standard she previously claimed was important and expound truthfully when asked about “prior case law, judicial methodology, hypothetical cases, or general issues like abortion?”

Kagan stated that the problem was “not that the Senate focused too much on a nominee’s legal views, but that it did so far too little.”[7]  The “current confirmation mess,” according to Kagan, derived “from the Senate’s abandonment of that role and function”, namely, to ask questions and expect solid answers from the nominee as the Senators did during the confirmation hearing of Judge Bork.[8]  The way Justices Ginburg and Breyer addressed issues of substance during their confirmation hearings contributed to what Kagan calls a “confirmation mess.”[9] 

Kagan, who worked on the Judiciary Committee with Senator Biden during Justice Ginsburg’s confirmation hearing, relates that Justice Ginsburg’s “favored technique took the form of a pincer movement…When asked a specific question on a constitutional issue, Ginsburg replied that an answer might forecast a vote and thus contravene the norm of judicial impartiality…But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling.”[10]

  • Will Kagan avoid the “pincer movement” next week during her own confirmation hearing or will she too refuse to answer a “specific question on a constitutional issue” or find a “hypothetical beyond her calling?”

Kagan has also criticized Justice Breyer for his answers during his hearing that were not “forthcoming.”  “His favored approach was the ‘grey area’ test: if a question fell within this area—if it asked him to comment on issues not yet definitively closed—he must, he said, decline to comment.”[11]  “Like Justice Ginsburg, he could provide personal anecdotes—the relevance of which were open to question [—or] state settled law—but not whether he agreed with the settlement.  He could explain the importance and difficulty of a legal issue—without suggesting which important and difficult resolution he favored. What he could not do was to respond directly to questions regarding his legal positions.”[12] 

  • Will Kagan hold herself to the standard she criticized Breyer for failing to meet, namely, will she directly answer questions regarding her legal positions on issues?   
  • Will Kagan discuss “the importance and difficulty of a legal issue” AND “suggest which important and difficult resolution” she favors? 

Kagan criticizes the confirmation process and the Senators’ role in it as a “peculiar ritual dance, in which [the Senators] propound their own views on constitutional law, but neither hope nor expect the nominee to respond in like manner.”[13]  Kagan states that “ignorance” of a judicial nominee should increase “the importance of their testimony” and bemoans the fact that the Senators failed to probe more deeply into the philosophies of Ginsburg and Breyer.[14]  Because so little is known about Kagan, the Senators must deeply question her during her confirmation hearing. 

  • When pressured by Senators to give insight into her judicial views, will Kagan respond and “propound her own views on constitutional law” and its role for a Supreme Court justice or follow in the footsteps of Ginsburg and Breyer—whom she criticized for their failure to engage in a legitimate discussion of legal ideas and viewpoints?  

Kagan also believes that the Senate ought not “to defer to the President” in his pick for the Supreme Court, but should instead adopt the position that “the Senate and the President have independent responsibility to evaluate, by whatever criteria are appropriate, whether a person ought to serve as a Supreme Court Justice.”[15]  She states that “the Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct.”[16]   

  • Will Kagan facilitate “open exploration of [her] substantive views” and “enable senators and their constituents to engage in a focused discussion of constitutional values, to ascertain [her] values, and to evaluate whether she possesses the values that the Supreme Court most urgently requires?”[17]  
  • Will Kagan avoid “the kind of inquiry that would contribute most to understanding and evaluating a nomination,” namely, “discussion first, of the nominee's broad judicial philosophy and, second, of her views on particular constitutional issues?”[18]   
  • If Kagan does not answer questions, her hearing will present to the American people exactly what she criticized regarding Breyer’s and Ginsburg’s hearings: “a vapid and hollow charade, in which repetition of platitudes replace discussion of viewpoints and personal anecdotes supplant legal analysis.”[19]  


Kagan clearly understands the importance of confirmation hearings and has articulated appropriate standards for nominees during questioning.  Kagan’s refusal to answer important questions would contradict the standard she herself advocated.  Senators should expect Elena Kagan to answer questions next week so that the confirmation process will not become what Kagan calls a “process so empty.”  Further, failure to ensure that Kagan provides solid answers to Senators’ questions would be unfair to the American people and would impede Senators from determining whether Kagan is qualified to be a Supreme Court justice, as Kagan herself acknowledged.  Indeed, if Kagan fails to answer questions, Senators should reject her nomination.

[1] Title 28, Part I, Chapter 21, Section 453 of the U.S. Code.

[2] Title 5, Part III, Subpart B, Chapter 33, Subchapter II, Section 3331 of the U.S. Code.

[3] Kagan, Elena. “Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919, 940 (1995) (book review).

[4] Id. at 920.

[5] Id. at 920.

[6] Id. at 920.

[7][7] Id. at 920.

[8] Id. at 920.

[9] Id. at 925.

[10] Id. at 925-926.

[11] Id. at 926.

[12] Id. at 926.

[13] Id. at 930.

[14] Id. at 928. 

[15] Id. at 931.

[16] Id. at 935.

[17] Id. at 935. 

[18] Id. at 939.

[19] Id. at 941. 


AUL - Grave Consequences

Wednesday, June 23, 2010
This Week's Feature

Kagan’s Admiration of Marshall Could Have ‘Grave Consequences’ for Unborn

Branding Logo

William Saunders, AUL’s Senior Vice President of Legal Affairs, warned in an op-ed published in yesterday’s Roll Call, the daily newspaper of Capitol Hill, that Elena Kagan’s admiration for Thurgood Marshall “could have grave consequences should she become another agenda-driven judge on the Supreme Court.”

Kagan, who clerked for Supreme Court Justice Marshall, has called his constitutional interpretation “a thing of glory.” But, as Saunders notes, “Justice Marshall frequently dissented on cases involving reasonable restrictions to abortion. ... [He] believed that the Fourteenth Amendment mandated that states pay for abortions.” He was also against parental notification and waiting-period laws.

Saunders observes, “If President Obama were sincere about finding ‘common ground' with those in the pro-life movement, then reasonable restrictions on abortion should be something a Supreme Court justice would uphold. Elena Kagan must answer questions about whether she agrees with her mentor’s opposition to abortion regulations.” Read more on the AUL Blog.

On The Docket

Supreme Court ‘One Vote’ Away from Reversing Key Pro-Life Decision

On Monday, Americans United for Life hosted a reception to commemorate the 30th anniversary of Harris v. McRae, the Supreme Court decision that upheld the Hyde Amendment, resolving a four-year legal battle to ensure that Congress may prohibit taxpayer dollars from funding abortion. AUL’s attorneys argued the case, securing a major victory for the pro-life movement. In her remarks opening the reception, AUL President & CEO Dr. Charmaine Yoest reminded attendees, “We won Harris v. McRae with one vote.” Among those who opposed the decision were Justice John Paul Stevens, whose seat Obama proposes to fill with Elena Kagan, and Justice Thurgood Marshall, for whom Kagan clerked. Click here to see the video of Dr. Yoest’s remarks.

FDA Panel OKs Version of Abortion Drug RU-486 as ‘Emergency Contraception’

AUL Staff Counsel Anna Franzonello reports on the AUL Blog that the drug Ulipristal, to be marketed in the United States as an “emergency contraceptive” called “Ella,” received approval from an FDA advisory panel. This drug could end the life of a developing human embryo and is the “next generation” of the abortion drug RU-486. Ella, like RU-486, is a selective progesterone receptor modulator (SPRM).  A progesterone blocker, SPRM works to interfere with the developing human embryo, causing it to die by either interfering with the uterine lining and preventing implantation, or by starving an already implanted embryo. Read more about the panel’s decision, and the dangers it poses to unborn lives and women’s health, on the AUL Blog.

Politico Features Yoest in Story on Bid to Allow Abortions at Military Facilities

The popular newspaper and Web site Politico this week featured Dr. Charmaine Yoest as a leading pro-life voice opposing a Senate amendment to the defense authorization bill that would authorize military hospitals to perform elective abortions. “They’re using the military as a wedge and a way to implement their agenda,” she said of those supporting the amendment. “I see them being very craven in looking to use the military to put the stamp of approval of federal government on abortion.” Click here to read a special report on the AUL Blog by our Staff Counsel Anna Franzonello, giving details about this new effort to direct taxpayer dollars toward ending the lives of the unborn.


AUL - Kagan File:The "Campaign Contributions" Memo 


Kagan Puts Her Money Where Her Political Ideology Is


Whom a person supports with hard-earned money speaks volumes about the values she holds.  One gives financially to political candidates whom one respects, and whose political values, policies, and positions on important issues one would like to see advanced.  Today, we examine which political candidates Elena Kagan has supported financially and their positions on abortion.

Elena Kagan has given campaign contributions to staunchly pro-abortion candidates, including:

  • Her boss, President Barack Obama.  Kagan has contributed money to his various campaigns, giving $4600 in contributions in June of 2008, as well as an additional $2000 to support Obama when he ran for the U.S. Senate.[1]  President Obama holds the most radical views on abortion of any president in U.S. history.[2]  While a U.S. Senator, Obama opposed the partial birth abortion ban and opposed legislation that would protect infants who survive abortions.[3]  During Obama’s presidential campaign, he promised Planned Parenthood that the first thing he would do when elected president would be to sign the Freedom of Choice Act into law, which would constitute the largest expansion of abortion since Roe v. Wade.[4]
  • Secretary of State Hillary Clinton, one of the most outspoken advocates of abortion in our nation’s history, has also benefited from Kagan’s checkbook.[5]  Clinton not only works to expand access to abortion for American women, but also works to legalize abortion for women around the world.[6]  Clinton recently stated that “an important part of women's health and reproductive health includes access to abortion,” and "[W]e are now an administration that will protect the rights of women, including their rights to reproductive health care."[7]  A long-time recipient of NARAL support, Clinton received Planned Parenthood’s Margaret Sanger[8] Award in 2009, which Clinton described as a “great privilege.”[9]
  • Kagan also supported Senator John Kerry’s campaign, contributing a total of $1500 in 2000 and 2001.[10]  Senator Kerry firmly supports Roe v. Wade and the alleged “right to abortion.”  As a Senator, he opposed a criminal penalty for harming an unborn child during the commission of another crime, the partial birth abortion ban, and legislation to maintain a ban of abortion on military facilities.[11]  An advocate for embryonic stem cell research, which necessarily takes the life of an embryonic human being, Kerry also signed a letter asking President Bush to expand embryonic stem cell research.[12]  Since Kagan’s nomination to the Supreme Court, Kerry has endorsed the woman who supported his campaign.[13]
  • Kagan contributed to Al Gore’s 2000 presidential campaign.[14]  Al Gore is an advocate of abortion as part of international family planning.[15]  In 1997, Gore asserted that “Third World nations are producing too many children too fast…[I]t is time to ignore the controversy over family planning and out-of-control population growth. . .[and recognize abortion as part of the solution to this problem].”[16]  During the 2000 election campaign, he stated, “I will defend a woman's right to choose, regardless of her economic circumstances.  I will not allow Roe v. Wade to be overturned."
  • Kagan gave money to Judy Feder, a candidate endorsed by the pro-abortion Emily’s List, in her race for Congress in 2006.  According to the National Organization of Women’s website, Feder “understands the importance of maintaining women's reproductive rights…[and] fully supports women's right to choose abortion and birth control, as well as access to family planning services that include emergency contraception.”[17] 


Kagan has contributed thousands of dollars to some of the most pro-abortion politicians and candidates in American history. While political contributions do not speak directly to how Kagan would judge on the Supreme Court, her political contributions reveal she actively supports pro-abortion political candidates for public office. Americans have every reason to believe Kagan will bring this same radically pro-abortion commitment and worldview to the Supreme Court. Senators should ask Kagan if her pro-abortion political ideology will influence her ability to render impartial justice when abortion cases come before the Supreme Court.         

[1] See

[2] Within three days of President Obama taking office, he overturned the Mexico City Policy, which forbade federal funding of groups that provide or promote abortion.  For other instances, see

[3] See

[4] See

[5] See

[6] See

[7] See

[8] Planned Parenthood was founded by Margaret Sanger with the genocidal, eugenic intention of wiping out black children and other minority or low-income people.  See

[9] See

[10] See

[11] See

[12] See

[13] See

[14] See

[15] See

[16] See (emphasis added).

[17] See