Robert Knight

As we watch in disbelief, the United States Senate is about to take the Fifth on a Supreme Court nominee who has no business being near a courtroom except as a defendant.

The word from Capitol Hill is that the GOP won’t even bother with a filibuster despite evidence from Elena Kagan’s Judiciary Committee hearing that she falsified evidence used in a Supreme Court case and committed what might be perjury before that committee.

One wonders what it would take for the Senate to deny this nomination? A daytime bank robbery, guns drawn? No, that could be chalked up to youthful exuberance or perhaps research in pursuit of insight into the criminal mind. When the Gang of 14 Democrats and Republicans agreed to clear the path for some Bush Administration nominees, that arrogant group’s presumption was that a president is entitled to his pick unless there are “exceptional circumstances.”

If Elena Kagan’s malfeasance does not fit “exceptional circumstances,” the term has no meaning. The GOP senators’ mild, gentlemanly resistance brings to mind Michael Dukakis’s fatally reserved response back in 1988 to the presidential debate question about how he’d feel if someone raped and murdered his wife. Uh, not good. Probably. Let me get back to you on that. (I’m paraphrasing quite loosely here.)

Ms. Kagan has a long list of questionable activities, including contempt for the law and the United States armed forces while dean of Harvard Law School. But the one that stands out is this: She falsified a physicians’ group’s document on partial-birth abortion to reflect her own view instead of theirs – it was submitted to the Supreme Court as evidence. This is fraud, plain and simple.

Most Americans are unaware of this outrage because the media want to ensure that she is seated. If journalists could be charged with malpractice, this would be exhibit A. Can you imagine a conservative nominee being given such deference?

Here’s what they’ve kept out of the news:

When she was a legal advisor to President Clinton, Kagan was the point person in efforts to keep partial birth abortion legal. She took a draft copy of a statement from the American College of Obstetricians and Gynecologists (ACOG) and changed it to say the opposite.

A handwritten memo confirms this ploy, showing the crossed out language and the new language that Kagan inserted.

The ACOG clearly stated that it “could identify no circumstances under which [partial-birth abortion] … would be the only option to save the life or preserve the health of the woman.”

But according to Kagan’s version: “[Partial-birth abortion] may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.”

Robert Knight

Robert Knight is an author, senior fellow for the American Civil Rights Union and a frequent contributor to Townhall.