There’s a lot of buzz about Will Saletan’s incisive analysis of Elena Kagan’s role in shaping, from the White House, the “medical” conclusions of the American College of Obstetricians and Gynecologists on the partial-birth abortion method.  (See full article, below.)  The criticism of Kagan and ACOG is certainly welcome, especially coming from this “pro-choice” writer at this left-leaning magazine.

But Saletan is dead wrong on one central point:  Kagan did substantively change the ACOG statement with the sentence she dictated to the organization.  Before Kagan’s interference, the ACOG statement read:

“a select panel convened by ACOG could identify no circumstances under which this procedure, as defined above, would be the only option to save the life or preserve the health of the woman.”

Before Kagan, partial-birth abortion was equal to or lesser than other methods in ACOG’s view.  With the addition of Kagan’s wording that it “may be the best” method “in a particular circumstance,” partial-birth abortion now became potentially better than other methods in the official view of ACOG.  Saletan apparently doesn’t understand that making it potentially best in some unnamed hypothetical situation was equivalent to making it definitively best in the view of the reviewing courts.  Even a cursory reading of the lower court rulings shows that the Kagan “best” language was absolutely key to the courts’ reasoning in overturning the bans.

Ultimately, of course, the Supreme Court got past this politicized medicine and got the ruling right.  But this revelation should be a permanent black eye for ACOG’s reputation on any abortion-related issue in the future, and is proof that Kagan is a zealous pro-abortion political animal trying to disguise herself in judge’s robes.

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“As one who has spent a number of years in uniform, as a Marine and a police officer, my remarks will focus primarily on Ms Kagan’s treatment of military recruiters at Harvard Law School.

“As has been pointed out while Dean of the law school she defied the requirements of a federal law, known as the Solomon Amendment. Her violation of this federal law was motivated by her vehement opposition to the military’s prohibition against open homosexuality.

“This protracted incident, combined with the just made public report of her re-writing of the medical findings of ACOG on partial birth abortion as advisor in the Clinton White House, raises doubts as to whether she possesses the requisite judicial temperament and impartial nature required of a Supreme Court justice.

“We do not need a justice on the Supreme Court who sees it as her life mission to write the homosexual version of Roe v. Wade by striking down one-man, one-woman marriage across America. These positions and the temperament accompanying them make her unfit to sit as an associate justice on the Supreme Court. I urge the Senate to reject her nomination.”

Perkins’ complete prepared testimony can be viewed here.

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Say what you will about Supreme Court nominee Sonia Sotomayor, her personal story is a compelling one.  From the sickly daughter of a widow in the South Bronx projects to the Pyne Prize at Princeton, the Yale Law School, and almost two decades as a federal judge is a remarkable journey.  Yet, one should ask how much of Judge Sotomayor’s success “against-the-odds” came from her high-quality preparation at in the Catholic school system.  Would her story have turned out differently had she attended a soon-to-be-blighted South Bronx public high school rather than the rigorous Cardinal Spellman?

That said, how many future Sonia Sotomayors are among the 1,715 DC students currently enrolled in private and parochial schools through the DC Opportunity Scholarship voucher program?  How many will still be given the same chance to excel once the program is terminated in 2010?  If President Obama is serious about the importance of Judge Sotomayor’s biography, he should work even harder to make sure that DC children from similar backgrounds can have the same opportunities.

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Here is Tony Perkins’ statement on President Obama’s nomination of Judge Sotomayer. Her record makes one wonder… is she a legislator or a jurist?

FOR IMMEDIATE RELEASE: May 26, 2009 CONTACT: J.P. Duffy or Maria Donovan, (866) FRC-NEWS

Sotomayor: A Policy Maker or a Jurist?

Washington, D.C. – This morning President Obama announced his nominee to the nation’s highest court, Judge Sonia Sotomayor of the United States Court of Appeals for the Second Circuit. Family Research Council Action President Tony Perkins released the following statement:

“President Obama has chosen a nominee with a compelling personal story over a judicial pick with a solid constitutional judicial philosophy. A compelling personal story is no substitute for allegiance to the Constitution and its sound application to public life.

“Judge Sotomayor’s failure to premise her decisions on the text of the Constitution has resulted in an extremely high rate of reversal before the high court to which she has been nominated.

“With that fact in mind Judge Sotomayor appears to subscribe to a very liberal judicial philosophy that considers it appropriate for judges to impose their personal views from the bench. President Obama promised us a jurist committed to the ‘rule of law,’ but, instead, he appears to have nominated a legislator to the Supreme Court.

“For example, in 2001 when delivering the Judge Mario G. Olmos Law and Cultural Diversity Lecture at the University of California-Berkeley Law School, Sotomayor stated: ‘I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion [as a judge] than a white male who hasn’t lived that life.’

“Needless to say, that statement is troubling – if not offensive – on many levels. As the distinguished legal reporter Stuart Taylor of the National Journal observed about that speech and of Sotomayor, ‘her thinking is representative of the Democratic Party’s powerful identity-politics wing.’

“In a 2005 panel discussion at the Duke University Law School that can be seen on YouTube and cable news channels, the judge stated that the U.S. Court of Appeals is ‘where policy is made.’

“With all due respect to Judge Sotomayor, our constitution states otherwise and public surveys indicate that the American public understands this constitutional principle and want judges who interpret the law and do not act as life-tenured judicially empowered social workers.

“The Family Research Council expects the members of the Senate Judiciary Committee and the entire Senate to fully examine and publicly present an accurate picture of Judge Sotomayor’s judicial philosophy to the American public before they vote on her nomination.”

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Pro-homosexual activist groups like Lambda Legal began pressing President Obama, even before he was inaugurated, to appoint homosexuals as federal judges, and now that there is a Supreme Court vacancy, the possibility of the first “openly gay or lesbian” Supreme Court justice is being discussed in the media and (intensely) in the blogosphere.

Comments by Sen. Jeff Sessions, by a spokesman for Focus on the Family, and by me, suggesting that a history of same-sex attractions would not necessarily, automatically, and a priori disqualify a candidate for the court led a blogger for Politico to ask, “Is [the] right softening on gay judges?”

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One thing can be said for President Obama is that he doesn’t sneak up on his targets. And another thing that can be said for this liberal administration is that it is not in the least embarrassed about its inclinations. To buy into this left-of-center government is to have gotten what one bargained for. Yesterday Obama made it clear that he wants to see retiring Justice David Souter (he who ignored the erstwhile tradition of justices allowing a president of the party that appointed him to nominate his successor) replaced by October – and by an individual who has “empathy” and is “about how our laws affect the daily realities of people’s lives.” These are indeed fine characteristics, but they are finest in legislators and not in judges, and in judges they are finer in trial judges than in appellate and Supreme Court judges whose “empathy” may or may not be a reliable yardstick of, well – quaint concept – justice or due process.

President Obama also suggested that some (unspecified) Americans need Supreme Court judges who will use their empathy to assure that they feel “welcome in their own nation.” Is Obama referring to judges who will enforce duly enacted civil rights laws? To homosexual couples desiring to “marry” and have the U.S. Constitution traduced to their cause? To Mormons and Christians who are being assaulted in their churches or on the street for their participation in our democracy? To legal immigrants? Illegal immigrants?

In the realm of feeling, any answer is possible. But in the realm of leftwing jurisprudence, only one answer to each of these questions is likely. The empathy that matters is in the eye of the office-holder.

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