Top Democrats Won’t Say If Elena Kagan Should Justify Her Abortion Views

June 24, 2010 - 7:28 AM
Sens. Patrick Leahy (D-Vt.) and Dick Durbin (D-Ill.) each refused to say whether Supreme Court nominee Elena Kagan should have to justify her view on abortion at her upcoming confirmation hearing.
Patrick Leahy

Sen. Patrick Leahy, D-Vt., discusses the nomination of Elena Kagan to the Supreme Court at news conference on Monday, May 10, 2010 on Capitol Hill. (AP Photo/Evan Vucci)

(CNSNews.com) – Sens. Patrick Leahy (D-Vt.) and Dick Durbin (D-Ill.) each refused to say whether Supreme Court nominee Elena Kagan should have to justify her view on abortion at her upcoming confirmation hearing.
 
Leahy, the chairman of the Senate Judiciary Committee, and Durbin, the Senate Majority Whip, were asked by CNSNews.com whether they agreed with former federal judge and Supreme Court nominee Robert Bork, who said on Wednesday that Kagan should have to explain the origins of her views on abortion.
 
“I think the first set of inquiries should go into what she considers the materials from which she should draw in deciding, for example, the constitutional right to an abortion,  which I don’t think exists,” Bork said during a conference call.  “[S]he ought to be asked what basis – on what materials – does she base that [opinion].”
 
When asked by CNSNews.com whether Kagan should have to explain her views on abortion, Leahy didn’t answer directly.
 
“I don’t listen to special interests groups on the right or on the left,” Leahy said. “I consider myself a pretty good lawyer, [and] I’ll make up my mind which questions to ask. You will know what I think is appropriate by the questions I’m going to ask.”
Dick Durbin

Senate Majority Whip Dick Durbin, D-Ill., speaks to reporters on Capitol Hill on Dec. 16, 2009. (AP File Photo/Harry Hamburg)

Durbin, asked the same question, predicted that Kagan would be “cautious” in expressing her views. Like Leahy, he did not actually say whether Kagan should explain why she thinks abortion is a constitutional right.
 
I bet that it’s one of the early questions asked – about her position on Roe v. Wade – whether she thinks that there are any variations on that that we ought to consider. I think it’s been asked of every nominee in some form, so I expect that,” Durbin said.
 
Durbin said he expects Kagan to be “careful.”
 
“Even though she’s written articles saying that nominees should be more forthcoming, I’m sure she’s been cautioned to follow precedent and she’ll be careful. I hope we can get some answers – more direct answers,” Durbin said.
 
Kagan, the current solicitor General of the United States, previously has published articles calling for Supreme Court nominees to be more forthcoming about their views on the law and the Constitution.
 

Following is a transcript of CNSNews.com’s questions to Sens. Leahy and Durbin and their reponses:
 
CNSNews.com to Sen. Leahy: Judge Bork today said that she [Supreme Court nominee Elena Kagan] should be asked to justify her views on abortion, where they come from. Do you think that she should be asked?
 
Leahy: You know what? As I said, I don’t listen to special interests groups on the right or on the left. I consider myself a pretty good lawyer [and] I’ll make up my mind which questions to ask. You will know what I think is appropriate by the questions I’m going to ask.
 
CNSNews.com to Sen. Dick Durbin: One of the things Judge Bork said was that she [Elena Kagan] should have to justify – and really just name – whether or not she thinks there’s a constitutional right to an abortion and justify those views. Not asking whether or not you’d ask that, but do you think that she should? Do you think he’s right that she should?
 
Durbin: I bet that it’s one of the early questions asked – about her position on Roe v. Wade – whether she thinks that there are any variations on that that we ought to consider. I think it’s been asked of every nominee in some form, so I expect that.
 
CNSNews.com: So do you think [crosstalk] that’s the point, you never get an answer [from previous nominees] -- do you think that she should give a full explanation?
 
Durbin: I think that they come close [more crosstalk]
 
CNSNews.com: Should she go ahead and instead of the super-duper precedent, that kind of thing, go ahead and just lay out the case, [what] in her mind the case is, if she supports it? Is that something you’d like to see?
 
Durbin: I don’t know that volunteering information to the Senate Judiciary Committee…
 
CNSNews.com: Well if she’s asked…
 
Durbin: Well, if she’s asked that’s one thing, but when you start volunteering information in this type of a hearing it may turn out to be problematic.
 
CNSNews.com: Well if she’s asked, should she just lay it out?
 
Durbin: She’ll be careful. Even though she’s written articles saying that nominees should be more forthcoming, I’m sure she’s been cautioned to follow precedent and she’ll be careful. I hope we can get some answers – more direct answers.