Jonathan H. Adler at the Volokh Conspiracy offers several defenses of Kagan, noting that she served the role of an advocate and was supposed to coach experts to say what was most useful to her employer, the Clinton White House. This interpretation sees ACOG's acceptance of Kagan's words, and not Kagan's alleged sock puppetry, as the most damning deed in this matter.
The nominee is in the unenviable position of defending actions 13 years after the fact. As EWTN News reports, she could not recall whether the memo in question resulted from discussions with ACOG.
According to EWTN News, Kagan doubted her ability to alter the ACOG statement at the Senate confirmation hearings. She stated “there was no way I could have or would have intervened.” She attributed the goal of the document to be a statement "consistent with the views we knew they had."
In light of Kagan's expressed lack of confidence, EWTN News reports a noteworthy fact:
In January 1997 Kagan sent a final version of the ACOG statement to Bruce Reed, assistant to the president for domestic policy. A copy provided in the "Bruce Reed Collection - Elena Kagan" section of the William J. Clinton Presidential Library & Museum shows Kagan's handwritten note to Reed about the document.
"It turned out a ton better than expected," she wrote, adding "I'll let you know in person what happened."
In another twist, Bruce Reed, her apparent superior in the Clinton administration, is now the CEO of the Democratic Leadership Council (DLC). He even co-authored a book with present White House Chief-of-Staff Rahm Emanuel.
Considering this reported "in person" meeting, Reed should be just the man to consult to learn what really happened. Kagan's optimistic scrawl suggests she had more influence on ACOG than she remembers or says.
We'll see whether this story continues to develop.
(Disclosure: EWTN News is my part-time employer.)