It's not as though the second day of testimony lacked interesting developments. The New York Times on July 1 reported the intense questioning by Senator Orrin Hatch on an abortion memo written by then-Clinton White House Counsel Kagan.
Hatch demanded, "Did you write that memo?...But did you write it? Is it your memo?"
Kagan's memo worried that a American College of Obstetricians and Gynecologists (ACOG) report on abortion could be a "disaster" for the Clinton administration.
None of the morning shows on Thursday mentioned the exchange between Hatch and Kagan. On Wednesday, only CBS's Evening News raised the subject. Reporter Jan Crawford observed, "But when Senators tried to pin her down on other specific issues, she sidestepped. On whether she helped craft strategies supporting partial-birth abortion-"
She then broke off and featured a clip of Hatch grilling. Crawford herself allowed that "over three days, there were plenty of tense and testy moments."
Apparently these examples were not interesting enough for ABC. In addition to only allowing 67 seconds on GMA, World News on Wednesday skipped the hearings completely. NBC's Nightly News provided a more generalized account.
Ignoring the abortion issue, correspondent Pete Williams explained that Kagan appeared "to back away from the position she expressed last year on gay marriage."
Nightly News, as well as the morning shows, also ignored a clip of Kagan telling senators, "I've been a Democrat all my life. I've worked for two Democratic Presidents, and those are, you know, that's what my political views are." Only the Evening News noted the remark.
For more on Kagan's abortion memo, see a CNSNews.com article on the topic:
Three years after ACOG released its statement on partial-birth abortion -- that included verbatim the words that had been the handwritten notes in Kagan's White House files -- the Supreme Court issued its opinion in Stenberg v. Carhart, which declared Nebraska's ban on partial-birth abortion unconstitutional. Justice Stephen Breyer wrote the Court’s decision in the case, quoting verbatim the passage from the ACOG statement on intact dilatation and extraction abortion that had originally appeared in the handwritten notes in Elena Kagan’s files released by the Clinton Presidential Library.
Breyer wrote: "The District Court also noted that a select panel of the American College of Obstetricians and Gynecologists concluded that D&X ‘may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.’"
"The picture that’s emerging," says National Right to Life Legislative Director Douglas Johnson, reflecting on Kagan's Clinton White House files, is that "it appears that Kagan was perhaps the key strategist in blocking enactment of the partial-birth abortion ban act." Johnson also said he believes that Kagan had "her hands on this from the beginning to the end."
A transcript of the Evening News segment, which aired at on June 30, follows:
SCOTT PELLEY: On Capitol Hill today, Supreme Court nominee Elena Kagan parried her way through her last day of confirmation hearings. Back in the 1990s when Kagan was an assistant law professor, she complained that such Senate hearings are, quote, "a vapid and hollow charade" because the nominees refuse to say anything of substance. Oh, how things change when you're sitting in the witness chair. Here's our chief legal correspondent Jan Crawford.
SENATOR JON KYL (R-AZ): I absolutely disagree with you about that.
SENATOR ARLEN SPECTER (D-PA): Apparently I'm not going to get an answer there, either.
CRAWFORD: She defended her record on military recruiting at Harvard.
SENATOR JON CORNYN (R-TX): It strikes me that the sole result and impact was to stigmatize the United States military on the campus.
ELENA KAGAN: It certainly was not to stigmatize the military. And every time I talked about this policy and many times besides I talked about the honor I had for the military.
CRAWFORD: But when Senators tried to pin her down on other specific issues, she sidestepped. On whether she helped craft strategies supporting partial-birth abortion.
SENATOR ORRIN HATCH (R-UT): Did you write that memo?
KAGAN: Senator, with respect, I don't think that that's what happened.
HATCH: But did you write it? Is it your memo?
KAGAN: The document is certainly in my handwriting.
CRAWFORD: On gay marriage.
SENATOR CHARLES GRASSLEY (R-IA): Do you believe that marriage is a question reserved for the states to decide?
KAGAN: There is, of course, a case coming down the road, and I want to be extremely careful about this question.
CRAWFORD: But on some things, Kagan was blunt.
KAGAN: I've been a Democrat all my life. I've worked for two Democratic Presidents, and those are, you know, that's what my political views are.
SENATOR LINDSEY GRAHAM (R-SC): And would you consider your political views progressive?
KAGAN: My political views are generally progressive, generally-
CRAWFORD: She also showed real savvy, deftly deflecting Democrats' criticisms of the Roberts court.
KAGAN: I'm not agreeing to your characterizations of the current court. I think that that would be inappropriate for me to do-
SENATOR SHELDON WHITEHOUSE (D-RI): I understand that.
KAGAN: -and I'm sure that everybody up there is acting in good faith.
CRAWFORD: And mixed with the serious exchanges was humor, something nominees typically are cautioned to avoid in case a joke backfires.
SENATOR TOM COBURN (R-OK): I'm 12 or 13 years older than you.
KAGAN: Maybe not after this hearing.
COBURN: No, I'm sure I'm older.
GRAHAM: Where are you at on Christmas Day?
KAGAN: You know, like all Jews, I was probably at a Chinese restaurant.
(AUDIENCE LAUGHTER)
CRAWFORD: But without a misstep, Kagan seemed headed for easy confirmation.
SENATOR DIANNE FEINSTEIN (D-CA): If you were confirmed – and I believe you're going to be-
CRAWFORD: One reason Republicans are unlikely to put up a fight is that she's replacing a liberal. She won't change the balance of the court.
GRAHAM: So I wish you well and I know your family is proud of you and I think you've acquitted yourself very well.
CRAWFORD: So is this a charade, Scott? Well, even Kagan herself admitted there's no real upside to answering specific questions. It's a successful strategy not to, and it looks like it’s going to work in her case as well.
