Kagan’s reflexive bias will disfigure the USSC’s impartial appearance

During the debate over legislation to ban partial birth abortion in the 1990s “the American College of Obstetricians and Gynecologists said an expert panel it commissioned could find no medical reason why the partial-birth abortion procedure would ever be used to protect a woman’s life or health.” In a memo to President Clinton, Elena Kagan wrote that publication of the ACOG’s findings “would be a disaster — not the less so (in fact more so) because ACOG continues to oppose the legislation.” In her testimony before the Senate Judiciary Committee, Kagan admitted that she was the author of handwritten notes found on that memo, notes that later became the basis for language included in the ACOG’s public statement about the issue. Pro-life forces have correctly cited this whole episode as evidence that Kagan has a pronounced bias in favor of so-called “abortion rights”.  However, when it comes to confirming her nomination for the Supreme Court, the episode reveals another even more disqualifying trait.  Kagan’s bias makes her impervious to contradictory evidence.

It makes sense for people to reach conclusions based on conscientious thought and reasoning. Once they have done so, it makes sense for them to be biased in favor of those conclusions. In fact, that bias is what makes a decision possible based on that process of deliberation. It is an especially important qualification for a judge.  Thus, in and of itself, the capacity for bias is not always a bad thing in a judge. What matters is the basis for that bias. The whole point of judicial hearing is to give advocates from both sides of an issue a chance to present their views. It is proper to assume that a fair judge listens to both sides carefully. She then reasonably weighs the facts and evidence they have presented (including expert testimony) and delivers an opinion influenced (that is to say biased) in favor of a conclusion justified by this conscientious process of deliberation.

What’s particularly disturbing about Kagan’s memo to Clinton and her subsequent actions is that her reaction to the opinion of the ACOG panel of experts showed not the slightest trace of fair deliberation. Apparently, the truth about the necessity (or lack thereof) for the gruesome partial-birth abortion procedure didn’t matter to her. All that matter was its political effect. This makes her a clever political operative, and possibly even a shrewd academic administrator (good at figuring out ways to serve her faction’s interest in the faculty wars). But it suggests a limping temperament that focuses reflexively on whether a given statement or piece of evidence favors or does damage to her factional position, and not at all on what it contributes to understanding the true state of affairs as it affects a fair judgment about an issue.

If the dominance of selfish ambition had not so deeply corrupted our understanding of politics, we would consider this a disqualification for any office that requires decisions fair to truth and the common good of the society. It would be particularly bad in individuals advising the President, whose main concern ought to be the nation’s good, not his own political advantage. Be that as it may, a politically biased temperament (political in the factional sense of the term) has never been regarded as appropriate in a judge, and certainly not in a Justice of the Supreme Court.

How are Supreme Court decisions likely to be received once its seats are known to be occupied by shrewd political operatives who have no ear for evidence and arguments that contradict the their faction’s partisan preferences? How will they deserve to be received? Confirming someone like Kagan for the Supreme Court will signal the rapidly approaching end of its moral suasion in our society. It will confirm what some already suspect or believe- that the Court’s activities are just a black robed extension of the political wars, and its opinions of no more weight or significance than any other  partisan speeches or political tracts.

Prudent consideration of the political environment for its decisions must necessarily play a role in the Supreme Court’s deliberations. But openly admitting that the Court is an appropriate arena for a temperamentally biased political warrior like Elena Kagan will disfigure the Court’s appearance of impartiality.  Even on potentially explosive issue like racial discrimination, trust in that appearance has been one of the key institutional factors helping to assure that America’s political wars remain just that. By disrupting the sense that some part of the system responds fairly to evidence, arguments and reasoning, Elena Kagan’s confirmation will tempt people to resort to other means, destructive but nonetheless far too common in societies that do not know even the semblance of an impartial judiciary. What a banal, tragic way to signal the end of a tradition so vital to the peaceful stability of our liberty. I understand why the anti-American in the White House proposed Elena Kagan. It’s impossible to see why any Senator still loyal to liberty would vote to confirm his proposal.

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Related posts:

1. Kagan also disqualified by ignorance of Ninth Amendment
2. Is Kagan radical like Obama, and unfit for Supreme Court?
3. No President “entitled” to appoint any SCOTUS Justice he wishes
4. The GOP’s uncivil union-pro-life voters, pro-abortion money
5. Lindsey Graham’s conscienceless covenant of power

Tagged as: abortion, impartiality, Kagan, partial-birth abortion, pro-life, Supreme Court