See other coverage by Rewire on Elena Kagan’s nomination to the Supreme Court, including today’s summary of hearing questions on choice and civil rights issues, analysis of her earlier work on choice issues in the Clinton White House, analysis of her record by the anti-choice community, and a “progressive’s defense” of Kagan’s nomination.

The third day of the Kagan hearings included questioning on everything from the Defense of Marriage Act (DOMA) to education spending to abortion. But the Republicans stuck with one issue in particular: the fact that Harvard Law School abided by its own anti-discrimination policy to ensure that any potential employer recruiting at the law school did not discriminate on the basis of gender, ethnicity, sexual orientation, or race. The specifics in question had to do with Kagan, who was the Dean of Harvard Law School at the time, deciding to protect the rights of LGBT students to not be discriminated against by the United States military through the Don’t Ask, Don’t Tell policy. Kagan reminded senators and representatives that, in fact, the U.S. military was wholly able to recruit – even at Harvard Law School – just not through the law school’s Office of Career Services.

Still, Senator Graham (R-SC) had a bizarre analogy for Kagan, asking her, “If the Catholic Church wanted to recruit from the law school would you prevent them because they don’t have female priests?”

Though the committee seemed not to be able to let this line of questioning go, both Democrats and Republicans calling into the C-span phone lines expressed annoyance with the committee’s insistence on pursuing. Kagan, however, announced, “The anti-discrimination policy regarding military recruitment at Harvard Law School was meant to support LGBT students.”

Women’s health and rights popped up, of course, and Republicans wasted no time in getting to the heart of the matter by bringing up the (still, after all the years we’re using this meaningless, politically charged term!) partial-birth abortion ban and it’s related Supreme Court case which upheld the law, Gonzalez v. Carhart.

Kagan called this an “incredibly difficult issue” but did not waver from what she termed her responsibility to the American public and President Clinton during her time at the Clinton White House, when she was charged with helping inform and provide, according to her, “the best medical evidence on the issue” to President Clinton regarding the partial-birth abortion ban. Kagan told Senator Orrin Hatch, during his line of questioning, that the president believed partial-birth abortion should be banned, available only when necessary to save the life of or prevent serious health consequences to the mother. In gathering “the best medical evidence possible,” she relayed, to President Clinton, a memorandum from the American College of Obstetricians and Gynecologists (ACOG) on the issue. In question, during the hearings on day three, was the fact that the initial draft of the memo included only one of the two key ACOG statements, and Kagan’s discussions with ACOG to ensure both key statements were included.

ACOG’s statements on this particular abortion procedure were two-fold. The first being that, in ACOG’s view, “they couldn’t think of a circumstance in which this procedure was the only procedure that could be used, but second, on the other hand, that they could think of circumstances in which it was medically the best or most appropriate procedure with the least risk in terms of preventing harm to the woman’s health.”  However, when the memo was offered to the White House initially, it included only the fact that it wasn’t the only abortion procedure available, without mentioning that crucial “other” fact – that it may be the one that actually prevents harm from being done to the woman.

Everyone from Senator Graham to Senator Coburn pressed Kagan on why she asked ACOG to revise the memo to include both statements, attempting to get at an instance where Kagan’s personal belief system “interfered.” Senator Graham called this,”…advocating for how partial-birth abortion would be communicated to President Clinton.” While Senator Coburn pressed Kagan on the fact that the memo came directly from her and so, it was assumed, reflected her views on the issue. Kagan noted that, in fact, her only desire was to ensure the ACOG memo accurately reflected both of their positions in regards to partial birth abortion, “I was concerned that ACOGs language did not accurately reflect what their views on the issue were.”

In a moment of pure, unadulterated irony (one, apparentl,y missed by Hatch), Hatch was actually stunned by what he saw as “the politicization of science…an instance where political objective trumps a medical organization left to its own scientific inquiry.” 

Senator Amy Klobuchar (D-MN) offered a few moments of clarity when it was her turn to question Gen. Kagan. Responding to earlier statement by Senator Coburn as he waxed nostalgic about a time, 30 years ago, when Americans were apparently “more free,” Klobuchar reminded Coburn and the American public of a few quick facts:

• In 1980, while the number 1 song was Blondie’s “Call Me”, do you know how many women sat on the U.S. Supreme Court? Zero.
• Thirty years ago, when “Americans were more free”, how many women were sitting on the judiciary committee? Zero.
• Thirty years ago, when “Americans were more free,” how many women were in the United States Senate? One. 

In fact, Klobuchar reminds Coburn, “freedom is in the eye of the beholder.” It was a good opening, however, for Klobuchar to question Kagan on her time as Dean of Harvard Law School and what Kagan might do to address disparities for women in this country. Kagan admitted the disparities at Harvard and at law schools around the country; namely that while 50 percent of the student body at the law school was/is made up of females, very few actually assume leadership roles.

Kagan admitted, “In law firms, women don’t have the kind of – there’s not the diversity that anybody would want. I think people are trying hard to make that diversity happen. It’s not a matter of bad faith but I think there are structural obstacles. It’s hard to balance work and family, harder than it is for a man. We need to enable women to manage those balances, the desire to have a fulfilling professional life and a wonderful family life, to manage the balance better and create the structures to enable them to do so.”