The U.S. Senate is derelict in its duty if it votes to confirm Elena Kagan to the Supreme Court without further investigating her legal ethics.
Ms. Kagan, the U.S. solicitor general, was directly responsible for altering a key medical report in a way that stacked the deck in favor of keeping the barbaric practice of partial-birth abortion legal. She then gave testimony to the Senate Judiciary Committee that appeared to veer from the actual record.
The ethical questions are threefold. First, was it unethical for her to alter the original medical-report language? Second, was it unethical for her to fail to inform the courts when a series of judges relied explicitly on her altered language in reaching their decisions to keep partial-birth abortion legal for an entire extra decade? Third, did her testimony under oath before the Senate Judiciary Committee veer far enough from the actual record to constitute a major ethical breach?
On the first question, the answer seems clear. Ms. Kagan changed a medical document for political reasons without running it back past the specific medical panel that drafted it. Result: Studies early last decade documented between 1,250 and 1,500 partial-birth abortions per year - and that's from just an incomplete survey of doctors.
Analysts from right, center and left have criticized her for this. "Ms. Kagan's amendment ... has no basis in published medical studies or data," wrote former Surgeon General C. Everett Koop earlier this month. "This is unethical, and it is disgraceful, especially for one who would be tasked with being a measured and fair-minded judge."
The ethics of failing to inform the courts is covered in Rule 3.3 of the American Bar Association's Model Rules of Professional Conduct, which directs lawyers in such circumstances to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal." This she did not do.
As for her testimony to the Senate, it was problematic on several levels. For instance, Ms. Kagan told Sen. Orrin Hatch, Utah Republican, "There was no way in which I would have or could have intervened with [the American College of Obstetricians and Gynecologists - ACOG] ... to get it to change its medical views." The record makes that statement look false as false can be. Meanwhile, her mindset at the time was evident in yet a second instance, when she wrote in a White House e-mail that she should "contribute to [the] effort" to see if "the [American Medical Association's] policy can be reversed."
As Dr. Koop wrote, and as was echoed by a separate coalition of about 30 policy organizations led by Americans United for Life Action (a pro-life legal group), this all bears investigation. The Senate needs to depose members of the relevant ACOG committees to describe Ms. Kagan's actions. It needs to depose experts in legal ethics to determine if she violated Rule 3.3 or other ethical standards. And it needs to compare the findings of those depositions to various portions of her evasive testimony earlier this month.
The legal ethics in question are significant. The moral questions involved in partial-birth abortion should make senators and their constituents blanch. Ms. Kagan's troubling combination of bending the rules to endanger the unborn is enough to disqualify her from the bench.
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