I too would like to get to the bottom of all this and get
some answers on what Kagan’s views truly are. I am troubled by some things that
I have read, and I need to know where Kagan stands on some core issues related
to reproductive choice and church and state separation.

Over the past couple of weeks, the following facts about
Kagan have been unearthed that I find particularly concerning:  

  • In 1987,
    while serving as a clerk for Justice Thurgood Marshall, Kagan wrote a memo
    adopting a strict separationist viewpoint on tax funding. She asserted that
    religious groups should not be able to receive public funding for certain
    ostensibly secular activities, such as offering sex education to teens. These views were reflected in Marshall’s dissenting opinion
    in Bowen v. Kendrick. But
    unfortunately, Kagan changed her mind on the issue, and 22 years later, during
    her confirmation hearings for solicitor general, Kagan distanced herself from
    that analysis, calling it “deeply mistaken,” “utterly wrong,” and “the dumbest thing
    I ever heard.”

  • As a White
    House aide, Elena Kagan co-authored a memo in 1997 with Bruce Reed, calling on
    President Bill Clinton to support a ban on late-term abortions. Then-Sen. Tom
    Daschle had proposed an amendment that would ban these abortions except
    when it was necessary to protect “grievous injury to [the mother’s] physical health.”  Clinton was leaning toward vetoing the bill – he wanted
    broader protections for women’s health care. Pro-choice groups also opposed the
    amendment and the Justice Department’s Office of Legal Counsel said the ban may
    violate the constitutional protection under Roe v. Wade. Still, Kagan advised
    Clinton to sign the bill with the amendment.

  • Also during her tenure as an aide to Clinton, Kagan favored
    a measure
    that provided funding to religious groups. The issue came up
    regarding “charitable choice” provisions of the Welfare Reform Bill. Clinton
    wanted to know what to do about the issue – as the bill stood, churches and
    religious groups could receive contracts and vouchers to participate in welfare
    and other social-service programs. Kagan was asked about the status of the religious provisions
    in the new welfare law, and she responded that she did not favor making changes
    to the “charitable choice” provisions of the bill.

Jay, I know you probably are in favor of all these things –
but realistically, it is unclear what Kagan really believes and what was done
for political purposes. It troubles me that we don’t know her stance on basic
constitutional issues and I hope the Senate Judiciary Committee asks some really
tough questions.

I think we should take to heart something Kagan
said years ago. During the Ruth Bader Ginsburg
hearings, she critiqued the Supreme Court nomination process as a “vapid and hollow charade, in which repetition of platitudes has
replaced discussion of viewpoints and personal anecdotes have
supplanted legal analysis.”

She demanded that the nominee be open to discussing her “understanding of the role of courts in our society, of the nature of
and values embodied in our Constitution, and of the proper tools and
techniques of interpretation, both constitutional and statutory.”

Let’s hold her to those words.

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