Kagan's firsthand White House experience is rare on Supreme Court

By Alec MacGillis
Washington Post Staff Writer
Friday, May 14, 2010; A02

If the Senate confirms Elena Kagan, she would serve on a Supreme Court that is likely to take on big questions regarding the powers of the federal government, notably the constitutionality of President Obama's health-care overhaul.

But Kagan would bring a perspective in short supply on the bench: firsthand experience in the White House amid the bureaucratic and political constraints of government. Records from her years as deputy domestic policy adviser in the Clinton White House suggest that she received a strong lesson in the mundane realities of government: the internal conflicts, the pressures of public opinion, the constant settling for the less than ideal.

The White House she belonged to between 1995 and 1999 took a view of government as a tool to improve people's lives. But it also had a keen sense of limits; it had been reined in after the Clinton health-care plan failed and Republicans won control of Congress in 1994 and was, with exceptions, keeping in check its ambitions even before the distraction in 1998 of the Monica S. Lewinsky affair.

The memos by Kagan and domestic policy adviser Bruce Reed reflect this self-restrained activism. A list of proposed "announcements and events" for Clinton in the summer of 1998 includes relatively narrow initiatives such as: "prevent filmmakers from using federal facilities for films that contain youth smoking" and "approve the 25th State Children's Health Insurance Program."

Kagan and Reed were attuned to publicity -- a reminder to "find three victims" from the diabetic community is written on a document mentioning regulation of federal health plans. A suggestion to urge Congress to improve food safety notes that "summer is the time when people think most about these issues."

A year earlier, Kagan had marked up a list of suggestions by others in the White House with notations signaling her expectations. "Both very expensive," she scribbled next to a suggestion to expand the dependent-care tax credit or undertake a major effort to build child-care centers. Above a suggestion to have federal departments each adopt 10 schools, she wrote that the White House could "green light in principle" but "start in District, small scale."

At the same time, she and Reed chafed at initiatives they viewed as too symbolic or intangible, such as proposals in 1997 for Clinton to address racial issues, which would evolve into the "President's initiative on race." "It is subject to characterization as a 'do-good,' 'touchy-feely,' essentially unrigorous and unserious response to the most intractable of America's social problems," she and Reed wrote in a memo.

Internal tensions occasionally provoked tart comments from Kagan. She was irked that an agenda for a civil rights meeting circulated by the Office of Public Liaison did not mention that many of the materials came from her office. She wrote to Reed that "when next [they] want help from our staff in preparing briefing materials, [they] should check in with one of us first." When a 1997 draft directive from the departments of Justice and Interior about law enforcement on Indian reservations arrived later than expected, she noted, "After however many weeks, DOJ/DOI sent this over Friday night with the 'request' that we issue it by Tuesday."

But the overriding impression is of Kagan trying to get results in an imperfect system. In a 1998 memo assessing two congressional proposals to increase visas for high-tech workers, she and a colleague grappled with how to improve training of Americans so fewer foreign workers would be needed. Should the government impose a fee on companies that use the visas, which could pay for training programs? Or should the government make passage of the bill contingent on high-tech firms doing more to train Americans on their own?

Reed, now director of Obama's deficit commission, said Kagan's time in the White House, combined with her earlier work as a Capitol Hill aide, would bring a needed perspective to the court. Several justices worked as lawyers in Republican administrations, but none held true policy-making jobs in the White House. "She knows how government actually works and how sometimes it doesn't," Reed said.

Paul Light, an expert on the federal government at New York University, said Kagan's White House experience would be most valuable in an area in which the court often seems to lack understanding: the executive branch's challenge in implementing the sometimes vague language of legislation.

"Having a basic understanding of the messiness of government is useful," he said. "It gives you some grounding. She knows what it's like to get something done in a system that impedes breakthroughs at every corner. . . . Having someone who understands the frustration of running something would be helpful to the court."

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