In vote, will senators weigh Kagan's tricky words? 

The Senate Judiciary Committee will vote Tuesday on the Supreme Court nomination of Elena Kagan. In a panel made up of 12 Democrats and seven Republicans (the most lopsided party ratio of any Senate committee), the outcome is not in doubt. But a serious question remains: How can any senator reconcile an "aye" vote with Kagan's troubling actions in the Clinton White House on partial-birth abortion?

The key question in a Supreme Court confirmation vote is whether the nominee will use the Constitution and the law as her guideposts, or whether she will sometimes just make things up to suit her preferences. The partial-birth abortion affair suggests Kagan will make things up.

In April 1996, the Republican-led Congress sent President Bill Clinton a bill banning the procedure known as "intact dilatation and extraction," or "intact D&X." Clinton vetoed it. In September 1996, the House voted to override Clinton's veto -- more than two-thirds of the House voted against the president -- but the override effort failed in the Senate.

As the battle raged, Clinton sought medical support for his position. But White House officials, meeting with representatives of the American College of Obstetricians and Gynecologists (ACOG), learned that there were almost no examples in which a partial-birth abortion was medically necessary to save a pregnant woman's life or protect her health.

In December 1996, Kagan received a draft statement from a group of doctors convened by ACOG. The statement said the experts "could identify no circumstances under which this procedure ... would be the only option to save the life or preserve the health of the woman." If ACOG actually made such a statement publicly, Kagan wrote in a memo a few days later, it "would be a disaster" for Clinton's stand against the partial-birth abortion ban.

What to do? Kagan didn't try to remove the "no circumstances" sentence from the ACOG statement. Rather, she drafted an addition, writing, "An intact D&X, however, may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman. ..."

Kagan is not a doctor and has no medical expertise. She just made the statement up, cleverly changing the meaning of the original ACOG statement without actually contradicting it.

The ACOG executive board, which supported Clinton's position, adopted Kagan's addition verbatim. (The experts who drafted the original statement weren't consulted.) Later, when the issue of partial birth abortion made its way through the courts, several judges cited the ACOG statement -- in particular the "may be the best or most appropriate procedure" sentence written by Kagan -- as an expression of the best medical opinion on the subject. The judges had no way of knowing the statement was written not by doctors but by an associate White House counsel.

At her confirmation hearing, Kagan struggled to explain her actions. At first she seemed reluctant to admit that she had written the words -- "The document is certainly in my handwriting," she finally conceded -- and later argued that she was simply trying to express the ACOG experts' true feelings, which they had not fully expressed in the original statement.

What does the episode mean for senators mulling a vote on Kagan? First, it raises questions that extend far beyond the issue of abortion; it's not hard to imagine something similar happening in other situations. Second, it suggests Kagan has a casual attitude toward the creation of government policy. And third, it shows an almost cavalier disregard for informed opinion.

"The problem for me, as a physician," wrote former Surgeon General C. Everett Koop in a letter urging senators to vote against Kagan, "is that she was willing to replace a medical statement with a political statement that was not supported by any existing medical data."

Kagan is not riding a wave of public support to confirmation. A recent Gallup poll found that just 44 percent of those surveyed support her nomination -- fewer than any high court candidate in recent memory. "If confirmed," Gallup concluded, "Kagan would be the first successful nominee in recent years whose nomination was backed by less than a majority of Americans in the final poll before the Senate confirmation vote."

With 59 votes in the Senate, Democrats will certainly confirm a nominee of their own party. A handful of Republicans will support Kagan, too. But how will they explain those worrisome words from 1996?

Byron York, The Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appears on www.ExaminerPolitics.com ExaminerPolitics.com.

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