As a White House adviser in 1997, Supreme Court nominee Elena Kagan urged then-President Bill Clinton to support a ban on late-term abortions, a political compromise that put the administration at odds with abortion rights groups.
Documents reviewed Monday by The Associated Press show Kagan encouraging Clinton to support a bill that would have banned all abortions of viable fetuses except when the physical health of the mother was at risk. The documents from Clinton's presidential library are among the first to surface in which Kagan weighs in the thorny issue of abortion.
The abortion proposal was a compromise by Democratic Sen. Tom Daschle. Clinton supported it, but the proposal failed and Clinton vetoed a stricter Republican ban.
In a May 13, 1997, memo from the White House domestic policy office, Kagan and her boss, Bruce Reed, told Clinton that abortion rights groups opposed Daschle's compromise. But they urged the president to support it, saying he otherwise risked seeing a Republican-led Congress override his veto on the stricter bill.
Clinton generally supported banning late-term abortions but insisted there be an exception when the mother's health was at risk.
No long history of opinions and briefs
Because Kagan spent little time in court and never sat as a judge, she does not have the typical long history of court opinions and legal briefs. That has made it difficult to assess her legal acumen or ideology. President Barack Obama announced Kagan's nomination to the high court on Monday.
White House spokesman Ben LaBolt said "judges confront issues differently than staff attorneys for an administration." He noted Chief Justice John Roberts made a similar point during his nomination when he was questioned about positions he took as an attorney in the Reagan administration's Justice Department.
Indeed, the memo is more of a political calculation than a legal brief, but Kagan and Reed urged Clinton to support the compromise despite noting that the Justice Department believed the proposal was unconstitutional.
"We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto," they wrote.
The memo noted that another White House adviser, Rahm Emmanuel, also supported the idea. Emmanuel is now Obama's chief of staff.
Proposals such as late-term abortion bans are seen as key battlegrounds in the legal fight over abortion. Though the debate often focuses on whether the Supreme Court will someday overturn Roe v Wade, the high court more frequently takes cases that carve out the exceptions that make it easier or harder for women to obtain abortions.
The memos were contained in Reed's files. They do not include Kagan's papers from her time as domestic policy adviser and associate White House counsel. Those records, a several-thousand page collection that could provide the most revealing look at Kagan's legal work, are expected to be released this summer.
The library released more than 5,000 papers from Justice Sonia Sotomayor before she was confirmed last year.
Kagan also recommended that Clinton support legislation banning human cloning in May 1997. At the time, the scientific and religious communities were abuzz about news that scientists had cloned a sheep, Dolly. The news raised questions about the legal and ethical boundaries of such research.
Kagan and White House science adviser Jack Gibbons urged the president to support a congressional ban on human cloning. Clinton followed that advice but the bill died in Congress.