A study in contrasts

A month ago, Christi Parsons and James Oliphant wrote a story for The Los Angeles Times headlined:

Kagan's abortion stance has both sides guessing

Except that nowhere in the story did we learn that either side was guessing. The only support for the headline was the information that Naral Pro-Choice America had not yet endorsed her. It was all about how Kagan had supported a "compromise position" on abortion. Except that at the time that position was floated, it was strongly opposed by pro-lifers. LifeNews said the National Right to Life Committee called it a "phony ban" with the sole purpose being to provide political cover for lawmakers. Both sides weren't guessing, in other words.

I thought of that story when the Obama administration, like other White Houses that came before, made recent use of the "Friday night news dump" -- where damaging news is released in the hopes that reporters on their way out the door for the weekend won't be able to devote their full attention to the matter.

In addition to some massive corrections to promises made in the health care fight, the White House released a big document dump related to Supreme Court nominee Elena Kagan's time in the Clinton administration. Now either because I'm a grizzled journalist or a total cynic (but I repeat myself) the timing immediately made me wonder what was damaging in the Kagan documents.

So I pulled up the New York Times story on the documents. The headline seemed pretty positive:

Kagan Expressed Broad View of Religious Freedom

Nothing controversial or particularly damaging about that. In fact, that headline's probably a big positive for a liberal Supreme Court justice. However, by the second paragraph we see that things are a bit more complicated:

Ms. Kagan pushed back against President Bill Clinton when she thought his position on a controversial form of late-term abortion was unconstitutionally restrictive but backed other options that fellow administration lawyers considered unconstitutional.

"Unconstitutionally restrictive"? That's a bit vague, no? Fortunately, we get better details later in the story:

Ms. Kagan's involvement in the debate over the procedure that opponents call partial-birth abortion may be grist for the hearings. As an alternative to Republican-sponsored legislation in 1996, Mr. Clinton's staff outlined four options, and he focused on one that would ban the procedure even before the fetus was viable except to avert death or serious health consequences for the woman.

"You're right -- this is a problem," Ms. Kagan wrote in a note to her boss, Jack Quinn, the White House counsel. "He seems as if he wants Option 1."

Mr. Quinn wrote back: "E -- HE DOES. JQ."

Ms. Kagan and other administration lawyers concluded that would violate the Supreme Court's Roe v. Wade ruling that established a woman's right to an abortion before viability.

"The problem with this approach is twofold," she wrote. "First, it is unconstitutional." And "second, the groups will go crazy."

She also wrote that any bill had to have a health exception to be constitutional, even though the Supreme Court a decade later would uphold a "partial-birth" abortion ban without one. On the other hand, she concluded that two options to restrict the procedure that the Justice Department considered unconstitutional would pass muster.

I think "grist for hearings" is tad unserious given the political and legal tensions surrounding abortion. The Times makes it sound like Kagan's involvement here is a petty political matter rather than a window into the legal framework of someone who could potentially sit on the Supreme Court for the rest of her life. However, the Times didn't skimp on the details with regard to her involvement in the Clinton White House's abortion debates. So kudos for that.

Still, any Supreme Court nominee with a paper trail defending late-term abortion is going to be controversial. So why doesn't the Grey Lady treat this like it's bigger news? Even the Times' own story spends a lot more time discussing her abortion views than her role in fleshing out legal arguments for religious freedom, which gets two graphs in the bottom half of the story. It's odd, because the brief description of how Kagan sided with a landlord being sued for refusing to rent an apartment to an unwed couple on religious grounds -- makes me wish I was given a lot more information about her legal reasoning here. It seems worth digging into, and any information explaining how a potential Supreme Court justice would handle religious freedom cases deserves some column inches, not just a splashy headline.

But as it stands, I'm not sure how the Times justifies that headline. Bloomberg was much more blunt and had an entirely different view of what was newsworthy here:

Kagan Played Lead Role in Abortion Rights Fight Under Clinton

The AP's headline didn't ignore the abortion news, and the story led with abortion before moving on to the other revelations from the Kagan documents:

Kagan memos on abortion limits, religious rights

WASHINGTON -- Supreme Court nominee Elena Kagan, as a Clinton White House counsel, drafted legal language designed to narrow a proposed ban on a procedure that critics call "partial-birth" abortion.

While the Times story contains good info, it is windy and circuitous, the headline doesn't reflect what's newsworthy, and tonally it almost feels defensive. The AP story is to the point, tightly written and recognizes the news value of the abortion comments while fairly contextualizing the other revelations about her Clinton years.

As a study in contrasts, AP wins the day.

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