Sen. Orrin Hatch questions Elena Kagan on partial-birth abortion

WASHINGTON — Sen. Orrin Hatch's second chance to question Supreme Court nominee Elena Kagan on Wednesday focused on partial-birth abortion and military access to Harvard Law School.

Hatch said he was concerned about a memo Kagan had written to President Bill Clinton when Congress was debating a ban on partial-birth abortion in the 1990s.

Kagan said the American College of Obstetricians and Gynecologists, which had opposed the ban, had told the Clinton administration that partial-birth abortion could be medically necessary to preserve the life of a mother. It had also stated that the procedure was not the only one that could be used in a given case.

When ACOG was preparing a public statement, only the second part of those beliefs was reflected there, Kagan said, and she wrote to Clinton that the statement would be a "disaster" if not all of the ACOG's beliefs were included.

"I'm stunned by what appears to be a politicization of science," Hatch said. "Many in Congress came to the conclusion that it was a brutal procedure, which really was unjustified."

He said he was bothered by the way he perceived Kagan to intervene.

"Sen. Hatch, there was no way in which I would have or could have intervened in ACOG, which is a respected body of physicians, to get it to change its medical views on the question," Kagan said.

Her efforts, she said, only worked toward getting ACOG to adequately express all of its views.

Hatch also asked Kagan about her term as Harvard Law School dean, during which time military recruiters didn't have access to the school's career office to reach out to students.

He asked Kagan if that was because she felt the "Don't Ask, Don't Tell" law was wrong and if she was trying to make a political statement.

Kagan said the recruiters declined to fill out a form required of all companies who want to use the career center and noted that there was an uptick in recruits during that time.

"I do think the military, at all times, had excellent access," she said.

Senate Judiciary Chairman Patrick Leahy, D-Vt., introduced a letter from Michael McConnell, a former University of Utah law professor and current Stanford Law professor, praising Kagan.

"Based on my personal experience, as well as her public statements and writings, she deserves not a grudging acquiescence but an enthusiastic confirmation as an associate justice of the United States Supreme Court," wrote McConnell, a former federal judge on the U.S. Court of Appeals for the 10th Circuit. "Publicly and privately, in her scholarly work and in arguments on behalf of the United States, Elena Kagan has demonstrated a fidelity to legal principle even when it means crossing her political and ideological allies."

The committee's third day of questions for Kagan wrapped up Wednesday. The committee planned to spend time questioning witnesses for and against Kagan's nomination today.

This story was reported from Salt Lake City.

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