Kagan Helped Craft Clinton Strategy for Blocking Partial-Birth Abortion Ban

(CNSNews.com) - Solicitor General Elena Kagan, President Barack Obama’s nominee to replace retiring Justice John Paul Stevens on the Supreme Court, helped craft President Bill Clinton’s political strategy for sustaining his veto of the partial-birth abortion ban in 1997. As a result of Clinton’s successful veto that year, the ban was not enacted until 2003, when it was signed by President George Bush

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IN HIS COURT - MIKVA BRINGS A POLITICIAN’S PERSPECTIVE TO THE FEDERAL BENCH
Chicago Tribune - Sunday, January 16, 1994
Author: Michael Kilian, Tribune Staff Writer.
Abner Mikva is still somebody nobody sent.

The one-time liberal activist from Chicago’s Hyde Park has had as long and rewarding a public career as any honest Illinois politician could want. He has been a state legislator representing the South Side, a member of Congress representing Chicago and then the North Shore, a federal judge and, since 1991, chief judge of the U.S. Court of Appeals for the District of Columbia.

“Mifka,” as Mayor Richard J. Daley used to mispronounce his name, was even viewed during the Carter administration as next in line for a Supreme Court vacancy. But before one came, the country had settled into 12 years of Republican rule

Still, Mikva has found more than just leftovers at the D.C. appeals court, which is often called the “baby Supreme Court,” reflecting its status as the second most important court because its caseload is so dominated by the review of federal laws and actions. As chief judge, Mikva, who joined the court in 1979, may well have more influence than he ever did as a legislator.

For all his tenure and stature, the sport-coat-wearing Mikva still seems much the same rough-edged, plain-spoken, shiny-eyed, feistily independent, unabashed liberal he was when he and Chicago politics first met up.

That was during the elections of 1948. As a University of Chicago kid wanting to work in the reform campaigns of Paul Douglas for U.S. senator and Adlai Stevenson for governor, he walked into 8th Ward Regular Democratic Organization headquarters ready to sign up. The response, enshrined in a chapter of professor Milton Rakove’s 1979 oral history on Illinois politics, “We Don’t Want Nobody Nobody Sent,” went like this:

“I came in and said I wanted to help,” Mikva told Rakove. “Dead silence. `Who sent you?’ the committeeman said. I said, `Nobody.’ He said, `We don’t want nobody nobody sent.’ Then he said, `We ain’t got no jobs.’ I said, `I don’t want a job.’ He said, `We don’t want nobody that don’t want a job. Where are you from, anyway?’ I said, `University of Chicago.’ He said, `We don’t want nobody from the University of Chicago.’ “

Eight years later, after the first statewide reapportionment in decades created a Hyde Park legislative district with no incumbents, Mikva avenged this churlishness by getting elected to the Illinois House, where he served for 10 years. Among those campaigning for him in that 1956 contest was Eleanor Roosevelt, whose picture still hangs above his desk.

Mikva, who will turn 68 on Friday, now has diminished prospects of joining his former Appeals Court colleagues-Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg-on the nation’s highest bench, even with a Democrat in the White House.

“As one of my friends said, `How does it feel to be too old, too white, too male and too liberal?’ “ Mikva said in an interview. He laughed, which he often does, then became philosophical, as he also often does.

“It’s like saying to someone, `Shouldn’t you be president?’ There are times when I think I would have been a good president-not often-and there are times when I think I would have been a good Supreme Court justice, but there are nine of them in the whole, wide world, and it’s a combination of timing and politics and age and attitude and history. I saw Ruth the other night. She’s doing well, and enjoying it. I’m chief judge here, and enjoying it.”

Activist to pragmatist

There are few judicial jobs of such consequence as Mikva’s. Unlike the other 11 federal circuit courts of appeals, the District of Columbia’s is considered a national rather than regional court. Half the caseload of the court involves challenges to federal agency actions, and the government is a party in some fashion to about 90 percent of the cases, including criminal appeals.

“We frame the questions for the Supreme Court,” Mikva said.

Recently, Mikva wrote majority appeals court panel opinions involving gays in the military and the debate over the North American Free Trade Agreement, rejecting a demand from environmental groups that the president be directed to produce an impact statement before proceeding with adoption of NAFTA.

“To order the president to do something before he submitted something to Congress-that’s a relationship that’s so clearly political . . . the court should not get involved,” Mikva said. “This is something that should play out on the political stage.”

In his early days, Mikva was routinely called a “bomb thrower,” “a bleeding heart,” “an ultraliberal” and “a left-wing labor lawyer.” In addition to representing the steelworkers union and other labor groups as a young partner in Arthur Goldberg’s Chicago law firm, Mikva was an early and vocal champion of abortion rights and gun control, and a trenchant foe of the death penalty.

Given his convictions and long-standing reputation, one would have expected Mikva to be a liberal activist much like his predecessor as chief judge, David Bazelon, who served on the court for three decades and gave it a decidedly liberal stamp. But Mikva surprised many by being less an activist than a pragmatist-by imposing upon the judicial process the experience, attitudes and understanding he gained in 20 years as a state and federal lawmaker.

“Judge Bazelon was not a great fan of the legislative branch,” said Mikva, whose office window offers a broad view of the U.S. Capitol. “I’ve had an altogether different view of how to interpret statutes and also a different view on how the court should function.”

A congressman’s touch

For example, during the interview Mikva criticized the Supreme Court for stepping in with its sweeping and divisive abortion decision in 1973, Roe vs. Wade, when state legislatures throughout the country were already moving to change abortion laws. In contrast, he said the 1954 Warren Court was right in moving against segregated schools with its Brown vs. Board of Education decision, because no legislature in the nation was doing anything about segregated schools, “including Illinois’.”

The legal community seems in agreement that Mikva has brought a congressman’s touch to the court, but not everyone applauds the result (some, such as his conservative former appeals court colleague Robert Bork, declined to comment at all).

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Elena Kagan , assistant professor at the University of Chicago Law School, was a law clerk for Mikva. “He demanded a lot, but he was completely fair and was extremely tolerant,” she said. “I learned a lot from him: how government works, how it can be expected to work . . . things I wasn’t taught at (Harvard) Law School.”

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