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AUL - Kagan File: The "Comparative Law" Memo 

Compared to what?—Would Elena Kagan Use Foreign Law to Interpret Our Constitution?


In 2004, Elena Kagan spoke at a conference sponsored by Lex Mundi[1], where she emphasized the importance of international and comparative law in the curriculum of law schools, and recommended that law schools bring more visiting foreign professors to their faculty.[2]  “They will help to make American students aware that there are many different ways of solving legal problems and of using law to shape public life,” she said.[3] 

While increasing law students’ awareness of the laws of other countries is not wrong, favoring international law as a means to “shape” American jurisprudence is problematic.  Kagan should be questioned as to whether she emphasizes comparative and international law merely to inform law students that “many different ways of solving legal problems” exist around the world, or if she believes lawyers and judges should be trained to use international and comparative law as one way “to solve legal problems” within the U.S.

Kagan’s emphasis on international and comparative law presents yet another similarity to her “judicial hero,” Judge Aharon Barak.  In his book, The Judge in a Democracy, Barak dedicates an entire chapter to discuss the significance of comparative law.  There, Barak states that comparative law is an “important tool” to enable judges to “fulfill their role in democracy.”[4]  Does Kagan consider comparative law an “important tool” for a judge?  If so, how is it to be used?  While dean of Harvard Law School, she viewed comparative law as important enough to support requiring law students to study it.    

Barak also writes: “Comparative law is a tool that aids in constitutional and statutory interpretation... [and] helps the judge better understand the place of interpretation and the role of the judge as an interpreter.  With comparative law, the judge expands the horizon and the interpretive field of vision.”[5]  Would Kagan include comparative law in her “interpretive field of vision” as a Supreme Court Justice?

Aharon Barak, Kagan’s “judicial hero,” says: “Before judges decide their own positions on the issue, they would do well to consider how other legal systems treat the question…[C]omparative law can help judges determine the objective purpose of a constitution.”[6]    As a Supreme Court Justice, would Kagan rely on comparative law to interpret our Constitution?

Barak goes so far as to say that even in the absence of a direct influence of one constitutional text upon another, there still exists “a basis for interpretive inspiration.”[7]  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.”[8]  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.  Would Kagan rely on foreign constitutions to “inspire” her judicial opinions on issues like abortion under the U.S. Constitution?   

Barak regrets that judges in the United States have made little use of comparative law.  He urges them to do so.  If confirmed, would Kagan follow Barak’s advice?


The importance Kagan placed on incorporating international and comparative law into Harvard Law School’s curriculum suggests that Kagan may discount the principal role our Constitution holds in American jurisprudence.[9]  Her admiration of Judge Barak, whose judicial philosophy welcomes comparative law in judicial decision-making, raises further concern that Kagan may embrace comparative law as a method of interpreting the Constitution.  During Kagan’s confirmation hearings, the Senate needs to question deeply Kagan on her view of the role international and comparative law play in a justice’s judicial opinions and in the interpretation of the U.S. Constitution. 


[1] Lex Mundi is an organization focused on the local and global practice and development of law.

[2] This speech may be found in the compilation of Kagan’s lectures and speeches put together by the Judiciary Committee at  See also Kagan’s 2008 John W. King Memorial Lecture at the New Hampshire Supreme Court, which also may be found at

[3] (emphasis added).  

[4] Barak, Aharon, The Judge in a Democracy, New Jersey: Princeton University Press, 2006: 197.

[5] The Judge in a Democracy, 197.

[6] Id., 197-198.

[7] Id., 201.

[8] Id., 201.



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.


AUL - Kagan File: The "No Impartial Justice" Memo 


RE: Elena Kagan File:  No Impartial Justice on Abortion


On Friday, the Clinton Library released thousands of documents from Elena Kagan’s service in the Clinton White House from 1995-1999.  Kagan was one of President Clinton’s primary advisors on how to respond to the passage of the Partial Birth Abortion Act of 1997.  She also advised President Clinton on other legislative proposals that implicated abortion rights.  

Some of these documents further illuminate the extremity of Kagan’s position on abortion.  What’s more, they reveal that, as a Supreme Court Justice, Kagan will likely be too partisan to consider impartially any abortion-related cases that come before the Court.  The newly- released documents reveal: 

First, Kagan thought the President was “too lenient” on what he would accept in a partial-birth abortion ban, even though the ban he was willing to accept would not necessarily prevent any woman from having an abortion.

  • A February 15, 1996 memo reveals her opposition to the President’s tentative support for a pre- as well as a post-viability ban.[1] In other words, Kagan opposed any limits on abortion in the first six months of pregnancy.

  • Kagan believed a proposed limit on the right to a partial birth abortion was “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. . . .”[2]  In other words, Kagan did not believe partial-birth abortion should be limited to issues affecting a woman’s health prior to viability, but should be permitted for any reason.

  • She also argues that “the [pro-abortion] groups will go crazy” if Clinton doesn’t do what they want.[3]  In other words, she didn’t want to disappoint the pro-abortion groups.

  • Instead, she recommends that the President’s ban have an even broader “health” exception, which would have the effect of limiting even fewer abortions.[4]

Second, Kagan was undeterred in her opposition to meaningful limitations on partial birth abortion even after discovering that the American College of Obstetricians and Gynecologists (ACOG) could not find a legitimate need for it. [5]

  • Amazingly, instead of being concerned that the President was wrong in vetoing the PBA Ban Act of 1995 in light of ACOG’s information, Kagan worried that the President’s proposed alternative language was too pro-life because it was rarely the case that a partial-birth abortion was needed for health reasons.  Therefore, the President’s language, in spite of its broad health exception, would prevent more abortions than the White House realized.[6]  In other words, Kagan was determined to prevent as few abortions as possible.

  • In a December 14, 1996 memo, Kagan opposed the release of a truthful proposed statement by ACOG that partial-birth abortion is never medically necessary - “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.”[7]

Third, Kagan was in tune with Capitol Hill politics and clearly sided with pro-abortion lawmakers over pro-life lawmakers.

  • In the December 14, 1996 memo, Kagan noted approvingly that “Sen. Daschle's staff is working on a legislative proposal that would prohibit all post-viability abortions, with a tight exception for life and health. . . . Daschle's staff hopes that this proposal will provide cover for pro-choice Senators (who can be expected to support it) and that it will refocus the debate from the partial-birth procedure to late-term abortions generally.”[8] 

  • She recommended that the President support the Daschle proposal.[9]

  • In a series of memos in 1997 and 1998, Kagan addressed the progress of other abortion-related proposals on Capitol Hill, and described how the White House was concerned about or was trying to block pro-life legislation.  In a June 8, 1998 memo addressing Medicare funding for abortion, Kagan wrote “We are very concerned that Senator Nickles will soon highlight this issue, adding it to the growing list of abortion proposals Congress will take up this year.”[10]

  • On July 7 1998, Kagan wrote that the White House was trying to prevent the Senate from stopping RU-486 development.[11]


Documents from Elena Kagan’s record continue to show that she is a partisan who has strong pro-abortion views. When such cases come before the Court, could Kagan judge them impartially given her bias?  It is critical that Senators on the Judiciary Committee extensively question Kagan on her recommendations that she made during her time in the White House. Particularly – in light of her previous statement that a partial-birth abortion ban that lacks a health of the mother exception and that extends to pre-viability abortions would be unconstitutional – would she respect the Court’s decision to uphold just such a ban in Gonzales v. Carhart?[12]

[1] Elena Kagan, DOMESTIC POLICY COUNCIL BOXES 69-70, p. 178, available at

[2] Id.

[3] Id.


CHQ - Toughest Battles For Conservatives Are Yet To Come

Toughest Battles For Conservatives Are Yet To Come

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Other Highlights at Conservative HQ's News From The Front

Toughest Battles For Conservatives Are Yet To Come
American Spectator - Quin Hillyer compares today's political situation to the historic British evacuation of Dunkirk during WW II, and says in truth, despite recent positive results, conservatives haven't won anything yet (like Churchill said a successful Dunkirk evacuation was not a victory).  Hillyer says conservatives have thus far successfully avoided being swamped under the socialist tide, but our true battles for the political future of America are still far off in the future - and the Left still holds much important territory today.

Rush Limbaugh: I Know I'll Be Destroyed Eventually
World Net Daily - Radio host Rush Limbaugh never displays any 'fear' in broadcasting his radio program, but in his private life, he's scared that eventually liberals will come after him and destroy him - both professionally and personally.  Limbaugh is the subject of a new book (Rush Limbaugh an Army of One) that reveals quite a bit of 'behind the scenes' material on Rush's life, and some of his views may be surprising to his dedicated audience.

Conservative Ron Johnson Takes on Feingold in Wisconsin
Washington Post - George Will profiles the man who most likely will be taking on Wisconsin liberal career politician Sen. Russ Feingold in November, and says Republican Ron Johnson is somewhat 'typical' of the type of candidate coming forth in 2010 -- he's never run for office before and was inspired by the Tea Party to do so.  Johnson is prepared to spend his personal fortune to beat Feingold, and by the sound of it, he would be another excellent advocate for limited government if elected.

Fong Offers Optimism For Young Iowans
Des Moines Register - Not all grassroots conservative efforts these days are connected to America's Tea Parties, as this story on the efforts of one young conservative Iowan demonstrates.  Christian Fong got out of politics and has started his own conservative grassroots organization (The Iowa Dream Project) with the ultimate goal of getting young people more involved - but also to elect conservative candidates.  Fong has a bit of jaded view of Tea Parties, but it sounds as though his concept is still positive, nonetheless.

Carly Fiorina Now Ahead in GOP Battle for Cal. Senate Nomination - Conservatives are torn on the best candidate to support in the California GOP U.S. Senate race between Chuck DeVore (favored by Sen. Jim DeMint) and Carly Fiorina (the choice of Gov. Sarah Palin), but there's one thing that all would agree upon:  that RINO Rep. Tom Campbell is the worst choice of the three.  Good news for the Pro-Life community, as Fiorina has apparently pulled ahead of Campbell in recent polls.

The Lighter Side of Sarah Palin
National Review Online - Daniel Foster writes that we've been seeing a lot more of the 'lighter' side of Gov. Sarah Palin lately, and that's a good thing, because it's only when Palin comes off as too prickly that she seems to get herself in trouble.  Foster says Palin's brief time in the national spotlight has been more intense than most politicians have to endure, but she still needs to respond in ways that paint her in a positive light rather than looking like a political whiner.

Opposition to Kagan climbing
American Thinker (blog) - Ed Lasky blogs on the recent poll numbers concerning Supreme Court nominee Elena Kagan, noting that the more people learn about her - and her radical ideological leanings - the more 'unfavorable' she becomes.  Lasky also notes that being connected politically to Pres. Obama isn't helping Kagan, as Obama's presence in any matter related to public opinion is guaranteed to send your popularity plummeting. 

Rand Paul on Abortion
Reason - Like virtually everything else, Kentucky GOP U.S. Senate candidate Rand Paul's views on abortion have been put under the microscope, with the Left trying to find some inconsistency that might get him in trouble with some perceived political constituency - but a close look at Paul's views demonstrate that he's solidly Pro-Life and safely within the conservative mainstream.


NRLC Urges House to Reject "Corrupt" DISCLOSE Act 


WASHINGTON (May 27, 2010) -- The National Right to Life Committee (NRLC), the federation of right-to-life organizations in all 50 states, today urged the U.S. House of Representatives to reject the "DISCLOSE Act" (H.R. 5175), which it called a "bullying political power grab," which is "not a curb on corruption, but itself a type of corruption -- a corruption of the lawmaking process, by which incumbent lawmakers employ the threat of criminal sanctions, among other deterrents, to reduce the amount of private speech regarding the actions of the lawmakers themselves." NRLC said that it would include the dispositive roll calls on the measure in its scorecard of key votes for the current Congress.

The four-page letter, signed by NRLC Executive Director David N. O'Steen and Legislative Director Douglas Johnson, said that the bill "has been carefully crafted to maximize short-term political benefits for the dominant faction of one political party, while running roughshod over the First Amendment protections for political speech that have been clearly and forcefully articulated by the U.S. Supreme Court." The letter discusses a number of ways in which the legislation is designed to "to discourage, as much as possible, disfavored groups (such as NRLC) from communicating about officeholders, by exposing citizens who support such efforts to harassment and intimidation, and by smothering organizations in layer on layer of record keeping and reporting requirements, all backed by the threat of civil and criminal sanctions." The letter suggests that the bill be amended to clarify that “DISCLOSE” actually stands for “Deterring Independent Speech about Congress except by Labor Organizations and Selected Elites.”

The House Democratic leadership had apparently intended to bring the bill to the House floor tomorrow (May 28), but -- faced by a rising chorus of protests from a broad array of organizations -- has now postponed floor action until the week of June 7.

The letter is available here:



The Catholic Action League of Massachusetts today criticized the Supreme Council of the Knights of Columbus for prohibiting state and local jurisdictions in the Order from suspending the membership of candidates and elected officials who support abortion and same gender marriage.  At its annual state convention last weekend, the Massachusetts Knights of Columbus refused to take action on a resolution authored by Former District Deputy Joseph B. Craven Jr. urging the State Deputy to suspend such members, citing a letter from Supreme Advocate and General Counsel John A. Marrella.

Marrella stated: "... a subordinate council may not impose fraternal discipline with respect to a public figure's official actions on matters pertaining to faith and morals.  Rather, any such discipline must be made by or at the direction of the Supreme Board of Directors, which will consider the prudence of addressing the conduct of the public figure in light of the overall good of the Order." 

In the thirty-seven years since Roe v. Wade, the Supreme Board of Directors has never, to public knowledge, removed a single pro-abortion political figure from the Knights of Columbus.  In Massachusetts, a majority of Knights serving in the Legislature voted in 2007 against a constitutional amendment restoring traditional marriage, and voted in 2005 for a law which compels Catholic hospitals to distribute the so-called morning after pill to rape victims. 

The Catholic Action League called Marrella's letter "a shocking abdication of responsibility, and a shameful surrender to the culture of death."

Catholic Action League Executive Director C.J. Doyle stated: "This letter effectively kills any grassroots initiative within the Knights to address the scandal of pro-abortion pols in the Order.  It is now clear that the Knights of Columbus, for the foreseeable future, will continue to harbor in its ranks public officials who oppose Catholic morality, and who believe that the killing of 1.3 million pre-born children each year ought to remain legal in the United States." 

"Apparently, for the national leadership of the Knights of Columbus, the protection of its insurance business, tax exempt status, and its ratings from Standard and Poors is more important than defending the right to life.  Despite its pretensions to the contrary, the Knights of Columbus has now made its peace with legal abortion in America."

Enclosed is a copy of the letter from Supreme Advocate John A. Marrella to State Deputy William F. Donovan.


April 15, 2010

Mr. William F. Donovan

State Deputy

4 Irving Drive

Walpole, MA 02081-2430

Worthy State Deputy and Dear Brother Donovan:

You have asked our opinion with respect to a proposed resolution calling on the State Deputy to summarily suspend certain public figures who are members of the Knights of Columbus and who have publicly taken positions contrary to the teaching of the Catholic Church.  For the reasons set forth below, we conclude that the proposed resolution would be imprudent and contrary to the policy of the Knights of Columbus Supreme Council.

We recognize that some of our members who are public figures may use their public position to advocate or support policy positions that are contrary to the teachings of the Catholic Church on matters of faith and morals.  We further recognize that such conduct may cause confusion in that, among other things, it contradicts the Catholic identity and mission of the Order.  We also recognize that such conduct can be the source of internal dissension within councils and among members.   

We understand that some subordinate councils have the impulse to address real or perceived scandal caused by members who are public figures.  Because of the public stature of such members, however, decisions to summarily suspend the member necessarily affect the entire Order.  For this reason, a subordinate council may not impose fraternal discipline with respect to a public figure's official actions on matters pertaining to faith and morals.  Rather, any such discipline must be made by or at the direction of the Supreme Board of Directors, which will consider the prudence of addressing the conduct of the public figure in light of the overall good of the Order.

The reason for this is straightforward.  Any action by a state council likely will be understood by the public as an action of the Supreme Council on behalf of the entire Order.  Of course, subordinate councils, including state councils, do no have the authority to speak on behalf of the entire Order with respect to such matters.  To the extent that any subordinate council addresses the public acts of particular public figures, they may do so only at the express direction of and in concert with the Supreme Board of Directors, only in the rarest of circumstances, and only after careful consideration of all possible ramifications relating to the good of the Order.

Finally, the Order must be sensitive to the role of the bishops, with whom we stand in solidarity.  If the public figure's bishop has not excommunicated him for his public positions on issues relating to matters of faith and morals, it would be highly inappropriate for the Knights of Columbus to do so.

We thank you for bringing this important matter to our attention.  Please do not hesitate to contact us if you wish to discuss this matter further.

Sincerely and fraternally,

John A. Marrella

Supreme Advocate and General Counsel