Kagan tested by 1990s battles over tobacco legislation

She was a White House aide who, at the age of 37, had become President Bill Clinton's point person on a big tobacco bill, impressing veteran Senate Republicans with her hard work and intelligence.

But then a magazine article portrayed Elena Kagan as the driving force behind the legislation, a central player who had bent it to the White House's liking. This did not sit well with Republicans overseeing the bill, a group led by Sens. John McCain (Ariz.), Orrin G. Hatch (Utah) and Bill Frist (Tenn.)

Kagan rushed to offer an apology, which the senators accepted. But just weeks later, the legislation collapsed, felled in a political showdown that overwhelmed Kagan's painstaking efforts to find a middle ground.

"It was very disappointing," said Rich Tarplin, then a lead negotiator for the Health and Human Services Department. "It was one of those things where you knew right away that the planets don't align often and we'd missed an historic opportunity."

A formative experience

In Kagan's trajectory to become President Obama's Supreme Court nominee, the tobacco battle of the 1990s proved formative for someone who had little exposure to the messy realities of policymaking. In forging a deal that could satisfy Congress, public health advocates, states and tobacco companies, Kagan was for the first time in a high-profile role where she would hone the characteristics she has become known for: finding compromise in pursuit of a daunting goal and using her command of complex issues to win over powerful people with outsize egos.

The battle drew attention to Kagan as a force to be reckoned with, but it also was a lesson in the limits of compromise and persuasion, especially in the face of big lobbying efforts and partisan rancor. Even as she made inroads, White House attempts to keep both sides happy foundered badly, delivering a major blow to the administration.

"It got too big. We put in anything that anyone wanted," said Mike Moore, the Mississippi attorney general at the time, who had led a multi-state lawsuit against tobacco companies. "It became a Christmas tree that imploded under its own weight."

Shortly after she was promoted from the White House counsel's office to deputy domestic policy adviser in 1997, Kagan took the lead in helping craft the legislation needed to complete a historic $368.5 billion settlement that tobacco companies had agreed to that year to cover state health costs caused by smoking.

The legislation needed to define the new authority of the Food and Drug Administration to regulate tobacco, a key settlement provision. It would limit the industry's future liability, a condition of its support, and establish fees and taxes for the industry and limits on advertising.

Kagan, a smoker who had recently quit, faced multiple crosscurrents. State officials thought that Clinton was not doing enough to promote their settlement. Public health experts such as C. Everett Koop, a former surgeon general, and David Kessler, the just-departed FDA chief, called the settlement a sellout because it included liability caps. And as 1998 began, the White House was distracted by the Monica Lewinsky scandal.

Amid this uncertainty, Kagan presented an assertive front, exhorting Congress in strong terms to pass a sweeping bill and sounding more like a political veteran than a University of Chicago law professor on leave.

"We shouldn't content ourselves with half measures that won't work," she said in January 1998. "We think people will be embarrassed to go home without doing anything," she said two months later.