Papers covering Elena Kagan's time as Clinton adviser released

By Robert Barnes and Amy Goldstein
Washington Post Staff Writer
Saturday, June 5, 2010

Elena Kagan has lived most of her professional life in pursuit of the law, but documents released Friday revealed her as a very different kind of Supreme Court nominee: one deeply involved in the making of policy, not its legal interpretation, and in the thick of White House efforts to craft legislative compromise, sway public opinion and count votes in Congress.

More than 46,000 pages of documents accumulated during Kagan's three-year stint as a domestic policy adviser to President Bill Clinton show another side of the former Harvard Law School dean, now President Obama's solicitor general and his second nominee to the high court.

Her policy portfolio included issues from agriculture to Viagra, and at times, her legal and political views aligned. "FYI. I think this is exactly the right position -- as a legal matter, a policy matter and as a political matter," she wrote to her boss, Bruce Reed, regarding the Clinton administration's position on some affirmative action goals.

The documents show Kagan at the nexus of some of the thorniest domestic issues facing Clinton, but in many cases her own opinions are absent. Some papers that ask for her views contain no response. The missing pieces may be filled in before the Senate Judiciary Committee is scheduled to begin her confirmation hearings June 28. Friday's document dump represented just more than a quarter of the 160,000 pages of documents and e-mails that the William J. Clinton Presidential Library says it is preparing.

Issues she faced

But some issues faced during her 1997-99 tenure could be fodder for committee questioning:

-- Kagan was immersed in initiatives on gun control. In deliberations about how the Clinton administration should respond to a Supreme Court ruling that the federal government could not force local or state police to conduct background checks on gun purchasers, she appears to support such checks, but the documents only hint at her views.

In one, a White House official says that "based on Elena's suggestion, I have asked both Treasury and Justice to give us options on what POTUS [Clinton] could do by executive action -- for example, could he" prohibit the sale of a firearm without a police certification approving it?

-- Kagan called a proposed law that would make assisted suicide a federal crime "a fairly terrible idea." The proposal came after the Supreme Court had ruled that there was no constitutional right to assisted suicide, but it left states free to allow the practice. In the fall of 1997, Oregon put into effect a "Death With Dignity Act" that had been approved by voters but tied up in the courts.

-- Kagan was one of the lead staff members crafting the administration's response to news that cloning was becoming more viable, with Clinton adopting a position that opposed human cloning but allowed embryonic research.

The documents also show Kagan as a political player and congressional negotiator. "Elena -- Did you ever meet with Barney on this?" deputy White House chief of staff John Podesta asked about a prominent gay-rights activist's note to the president advocating Rep. Barney Frank's proposed legislation on domestic partners.

A box of documents on Kagan's efforts on behalf of campaign finance reform contained a graphic showing how various proposals would have affected the 1996 Democratic and Republican candidates for the Senate. "Fallback to McCF -- soft $ ban -- affects Repubs, not Dems!" Kagan jotted, apparently referring to legislation proposed by Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.).

Pragmatic side

The documents showed Kagan's pragmatic side as well. She agreed with Clinton's decision to veto a bill banning "partial-birth" abortions because it did not include an exception for protecting a woman's health. But she helped write his response to a disappointed Catholic bishop, saying he knew the procedure was used in some cases where the woman's health was not at issue: "I do not support such uses, I do not defend them and I would sign appropriate legislation banning them," Kagan proposed in a handwritten draft for Clinton.

How much of the writing reflected her personal views versus her duties as a presidential aide will be hashed out by the committee, or may be more apparent in the documents, including e-mails, that remain to be revealed.

The archivists at the Clinton library in Little Rock did "as wide and extensive a search as they possibly could to identify her material," said Susan Cooper, the archives' public affairs director. Still, she said, "There are so many files, they can't guarantee they hit it all."

Kagan would be the only member of the court without judicial experience, which Jeff Sessions (Ala.), the Judiciary Committee's ranking Republican, said makes Kagan's record "exceptionally thin." He said memos from her time as a clerk to Justice Thurgood Marshall show she brings "her liberal politics into the courthouse." He wants more time to review the Clinton documents.

But Committee Chairman Patrick J. Leahy (D-Vt.) said there has been "more information from the administration than was made available at this point in the confirmation process for either" Chief Justice John G. Roberts Jr. or Justice Samuel A. Alito Jr., the more recent GOP nominees.

© 2010 The Washington Post Company