Thousands of parties petition the Supreme Court to review their case, although the justices generally hear only about 60-80 cases a year. So as a law clerk to Justice Thurgood Marshall, Supreme Court nominee Elena Kagan would have written literally hundreds of memos to her boss advising him on whether to grant or deny these petitions. Of these hundreds of memos, the right-wing Federalist Society chose to post exactly five of them on its website.
By what could only be an amazing coincidence, CBS News’ legal correspondent Jan Crawford selected four of the same five memos as the basis of a report Thursday night. According to Crawford:
Taken together, these documents will be much harder for her to explain away than other, less controversial papers unearthed before her confirmation hearings for Solicitor General. . . . The documents seem to show that Kagan had some pretty strong legal views of her own, and while that might encourage liberals, it’s going to give Republicans a lot more ammunition to fight against her.
As if to prove Crawford’s point, Senator Jeff Sessions (R-AL) responded almost immediately to Crawford’s report with a statement claiming that “Kagan’s memos unambiguously express a leftist philosophy and an approach to the law that seems more concerned with achieving a desired social result than fairly following the Constitution,” and Sessions posted Crawford’s report to his YouTube channel.
These kinds of obviously coordinated attacks are nothing new, but the Fed-Soc/Crawford/Sessions hit on Kagan isn’t just a team effort, it’s also dead wrong. Literally none of the memos cited in Crawford’s report mean what she says they mean.
The first memo cited in Crawford’s report is one recommending that Marshall deny review of a case holding that prisoners have a constitutional right to state funded, “purely elective” abortions. Crawford presents the memo as evidence that Kagan’s views on abortion are somehow subject to attack from the right, but if Crawford had actually bothered to read the memo, she would have come to a very different conclusion. Here is Kagan’s legal analysis of the decision subject to review:
Quite honestly, I think that although all of this decision is well-intentioned, parts of it are ludicrous. Since elective abortions are not medically necessary, I cannot see how denial of such abortions is a breach of the Eighth Amendment obligation to provide prisoners with needed medical care. And given that non-prisoners have no rights to funding for abortions, I do not see why prisoners should have such rights.
One baffles at how Crawford could present Kagan as too pro-choice based on this harsh view of the prisoner’s claim.
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