Republican senators have reached a new low. I didn’t think it was possible. NRO and their “elves” on the right are on the warpath. Since smearing Thurgood Marshall wasn’t enough, now they’re going after Kagan using women as a shield.

Amidst this, we learned what I believe is very good news in the smoke signals out of Kagan’s confirmation hearings. Sam Stein reported it yesterday.

“I do think that the continuing holding of Roe and Doe v. Bolton, is that women’s life and women’s health have to be protected in abortion regulation,” Kagan said. “Now, the Gonzalez case [Gonzales v Carhart (2003)] which said that with respect to a particular procedure, that the statute congress passed, which passed a statute without a health exception and with only a life exception, was appropriate because of the large degree of medical uncertainty involved.” “But with respect to abortion generally, putting that procedure aside, I think that the continuing holdings of the court are that the woman’s life and that the woman’s health must be protected in any abortion regulation,” Kagan went on.

That’s as close as you’re ever going to get, I believe, to an affirmative on upholding precedent and also women’s individual freedoms. It’s a lot more than we got from Ms. Sotomayor.

The display of the Republicans on the Judiciary Committee has been a despicable display of ignorance met by overreach and partisan indulgence. It really can’t get any worse than targeting the brilliant firebrand and 20th century Thomas Jefferson, Thurgood Marshall. It seemed to escape Senators Session, Kyl, Grassley and Kornyn that Justice Marshall successfully argued Brown vs. Board of Education. Their disrespect waving like a flaming flag. So, since they couldn’t get Kagan for clerking for Marshall, going after the great justice himself, Republicans are now hitting Kagan on a political memo she did while working Clinton, while ignoring the final memo she co-signed on behalf of Clinton’s legal team.

With the help of Fox News channel, Shannen W. Coffin, who in her NRO bio says she was the deputy assistant attorney general in charge of the defense of the federal Partial-Birth Abortion Ban Act during the Bush administration, is coming at Ms. Kagan for work she did in the Clinton administration, taking aim at a memo Kagan on abortion. It’s Coffin’s concluding paragraph that is laughable, citing Kagan’s advice to “override a scientific finding.” This coming from a Bush official, you know, the dinosaur existed with people crowd.

Miss Kagan’s decision to override a scientific finding with her own calculated distortion in order to protect access to the most despicable of abortion procedures seriously twisted the judicial process. One must question whether her nomination to the Court would have the same effect.

The other problem is that the memo Coffin cites came the year before Kagan advised, along with Bruce Reed, that Clinton endorse Daschle’s views over Feinstein’s, though “both the Feinstein and the Daschle amendments prohibit post-viability abortions generally.” In fact, Daschle’s amendment was more “stringent” than Feinstein’s, the penalties harsher, $100,000 fine vs. $10,000.

Most critically, both amendments contain a health exception, though of different kinds. The Feinstein legislation would exempt an abortion if, “in the medical judgment of the attending physician, the abortion is necessary to … avert serious adverse health consequences to the woman.” This language is essentially identical to the language you have used in calling for a health exception to the Partial Birth Act. The Daschle language is more stringent. It exempts an abortion when the physician “certifies that continuation of the pregnancy would … risk grievous
injury to [the mother’s] physical health.” “Grievous injury” is then defmed as “a severely debilitating disease or impairment specifically caused by the pregnancy, or an inability to provide necessary treatment for a life-threatening condition.” […]

… We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto. You have spent many months calling on Congress to pass a bill that contains a sufficiently protective, but also appropriately confined, health exception — as you said in a letter to the Cardinals, illl! a health exception that “could be stretched to cover most anything,” but a health exception that “takes [, effect illlIx where a woman faces real, serious adverse health consequences.” Especially given J ACOG’s endorsement of the Daschle amendment, it will be difficult for you to make the case that Daschle’s language does not adequately safeguard women’s health. In these circumstances, – declining to support the amendment will weaken your position and increase the chance that Congress will override your veto.

As Media Matters illustrates, not only is Fox News incorrect, but so is Ms. Coffin, while also using a memorandum that wasn’t Kagan’s final analysis on the subject.

Additionally, the charge Coffin is making on Kagan distorting science is actually false, with the case Coffin’s making and the right is pushing actually a lie. According to the 1997 Reed-Kagan memo to Pres. Clinton, the “American College of Obstetricians and Gynecologists today endorsed the Daschle amendment, stating that it “provides a meaningful ban [on post-viability abortions] while assuring women’s health is protected.”

The real issue is that Pres. Clinton, which means also his lawyers, were determined to protect women’s individual freedoms through the First, Fourth, Fifth, Ninth, and Fourteenth Amendments, on which Roe v. Wade was founded.

This is exactly what Pres. Obama has done in nominating Elena Kagan, for which I am extremely grateful, heartened and relieved, once her views on precedent and women’s freedoms were expressed.

That’s the right’s real rub. As I’ve written innumerable times, they believe individual freedom is just for men, and will go to any lengths to keep it that way.

UPDATE: Mahablog has more.

This essay has been updated.