Just as the full Senate this week starts debate over the nomination of Elena Kagan to the Supreme Court, a group of conservative activists is planning to ask that same court to disbar her. Larry Klayman, the famous Clinton tormentor and founder of Judicial Watch, told WorldNet Daily recently that he believes Kagan’s work behind the scenes during the Clinton administration on the partial-birth abortion ban constitutes a “conspiracy to defraud the Supreme Court” and that he intends to ask the court to revoke her license to practice law.
Klayman’s disbarment campaign is just the latest call from the right demanding a full investigation into Kagan’s work on the partial-birth abortion ban during her years working in the Clinton White House. The controversy began during her confirmation hearings last month when Shannen Coffin posted a story on the National Review‘s website arguing that Kagan had been willing “to manipulate medical science to fit the Democratic Party’s political agenda on the hot-button issue of abortion.”
Coffin, formerly Vice President Dick Cheney’s general counsel, defended the partial-birth abortion ban that passed in 2003 as deputy attorney general during the Bush administration. Citing documents released by the Clinton Library, Coffin claimed that when Kagan was working in the Clinton administration’s domestic policy shop, she persuaded the American College of Ob/Gyns to alter the language it used in a statement on the merits of the partial-birth abortion procedure to support the political fight against the ban. Apparently, in an early statement on the procedure, ACOG had said that most of the time, the partial-birth abortion wasn’t essential to preserving the health of a woman. The statement didn’t include any qualifying language suggesting that there may be times when the procedure may be medically necessary.
Coffin quoted Kagan’s memo in which she wrote that ACOG’s original statement on partial-birth abortion “would be a disaster,” presumably referring to the impact the medical opinion might have on any attempts to strike down a ban. Coffin then accused Kagan of having meddled with the ACOG expert statement, suggesting that memos in the archives show Kagan encouraging the group to amend its official position in a way that would most benefit opponents of any partial-birth ban. Coffin claimed the ACOG language made it extremely difficult for his office to defend the ban that did finally pass Congress, largely because the courts repeatedly deferred to the medical expertise of ACOG.
Kagan’s responses to questions about ACOG during the confirmation hearings apparently didn’t satisfy anti-abortion groups, who were remarkably quiet during the hearings. But now they’re making one last desperate push to derail her confirmation. Americans United for Life has asked for a full Senate investigation into whether Kagan screwed up American abortion policy and law for more than a decade as a result of her work in the Clinton White House. The group’s 50+ page report on the ACOG controversy is also the basis for Klayman’s disbarment complaint.
The abortion issues don’t seem to have had much of an impact on the vote tally so far in the Senate. Kagan is likely to be confirmed. Whether she could be disbarred is another matter. But the funny thing about the Supreme Court is that there’s no requirement that justices even be lawyers, much less bar members. Even if by some miracle Klayman managed to get Kagan disbarred, it wouldn’t necessarily get her off the bench.