Kagan's newly released e-mails reveal confident voice in Clinton White House

In 63 to 37 vote, the Senate confirmed U.S. Solicitor General Elena Kagan as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.
By Amy Goldstein
Washington Post Staff Writer
Saturday, June 19, 2010

In the spring of 1997, Elena Kagan fired off a caustic e-mail to her superiors in the Clinton White House, cautioning that "we definitely should not" announce that the president planned to select the director of the Centers for Disease Control and Prevention to become the next surgeon general.

"All in all: we would be buying trouble," Kagan said of David Satcher, who would be nominated by Bill Clinton four months later. Satcher went on to try to curb smoking and improve minorities' health during his tenure as the nation's top doctor. The warning from Kagan, who was 37 at the time, was part of a pattern of tough, self-assured -- and sometimes acerbic -- missives she dispatched during the four years she worked in the White House counsel's office and as deputy director for domestic policy.

The tone and content of her internal communications during that period emerged in some 11,000 e-mails, released yesterday by the Clinton Presidential Library. The e-mails written by Kagan, President Obama's nominee for the Supreme Court, and tens of thousands more written to her, were the third and final batch of documents the library has made public in advance of confirmation hearings, scheduled to begin June 28 before the Senate Judiciary Committee.

Her e-mails include stern admonitions on an array of issues, including religious freedom, fingerprinting Americans on welfare, affirmative action and school testing. At times, she was openly sarcastic to -- or critical of -- her White House colleagues.

"Not to carp, but on memos to the president, it's usually wise to spellcheck," Kagan wrote in an October 1997 note to Michael Cohen, a Domestic Policy Council colleague who worked on education issues.

Two months later, she chastised an underling who had sent an e-mail to senior advisers saying that Kagan's office would have a "policy announcement of sorts" for an upcoming event by the president. "Of sorts???" Kagan fired back. "Not quite the attitude we want to convey."

She even took a crack at first lady Hillary Rodham Clinton, now the secretary of state. In January 1998, a White House colleague asked Kagan whether she could think of a policy announcement that might be included in a speech on racial issues the first lady was to deliver in Baltimore. Kagan shot back: "I'm generally not in favor of the FLOTUS announcing policy unless it's in one of her areas (e.g. child care)."

Sharp political skills

Taken together, the e-mails reinforce an image that emerged in the first two batches of White House documents, made public earlier this month, of a confident aide who came into the Clinton administration after working as a law professor, but whose sharpest skills were her political antennae.

In August 1997, for example, she wrote: "We are in a fight for our lives on the testing initiative," noting that Congress appeared likely to vote within a few weeks to prohibit using federal funds for a test the administration favored to try to standardize academic achievement. "We cannot waste Sept. 8 on a sweetness-and-light literacy event," she wrote. "We're all going to have to work together to make this problem disappear."

Some documents show Kagan trying to protect her bosses from political fallout, even if she agreed with their policy goals. For instance, she told Vice President Al Gore's chief of staff Ron Klain that it was not a good move at the moment for Gore to endorse the proposed Religious Freedom Restoration Act.

Calling herself the "biggest fan" of the legislation in the White House, she nevertheless warned that a controversy over part of the bill would mean "you'll have a gay/lesbian firestorm on your hands." She said a meeting was planned with gay and religious groups to find a solution. "We'll let you know," she wrote, "as soon as it's safe to go back in the water."

Other e-mails show her immersed in issues that remain relevant today. In 1996, for instance, Kagan articulated the administration's view that restrictions on campaign spending did not raise First Amendment concerns. That stance would put her at odds with a majority of the current Supreme Court but in agreement with the stated views of Obama. She expressed that view in an e-mail to a colleague, addressing whether only U.S citizens should be allowed to contribute to political campaigns. The counsel's office, where Kagan worked, was tasked with responding to concerns by the Justice Department and others that such a ban might be unconstitutional.

"This is a result of the Supreme Court's view -- which I believe to be mistaken in many cases -- that money is speech and that attempts to limit the influence of money on our political system therefore raise First Amendment issues," Kagan wrote in an e-mail draft response for Clinton. "The Court could and should approve this measure because of the compelling governmental interest in preventing corruption."

The draft also said that the court "should reexamine its premise that the freedom of speech guaranteed by the First Amendment entails a right to throw money at the political system."

E-mails and morale

In at least one instance, a note to Kagan and her boss, Bruce Reed, hints that their management style may have been problematic. Paul Weinstein Jr., the Domestic Policy Council's chief of staff, dispatched an e-mail in April 1998 telling them that morale on their staff seemed to be "at a low level." He urged them to bring their underlings to more meetings with the president, give them credit on memos to the president and offer more "positive reinforcement" -- "a little goes a long way. Sending congratulatory e-mails or voice-mails helps."

Several emails show that Kagan had a profane streak. "Un[expletive]believable," she wrote in one e-mail, replying to a colleague's explanation of a change in legislation about worker protections.

But like workers everywhere, Kagan's e-mail box contained curious items. The subject line on one: "Re: Two G-rated Jewish jokes." Alas, the jokes were missing from the documents the library released.

Staff writers Robert Barnes, Ann Gerhart, Alec MacGillis, Jerry Markon and R. Jeffrey Smith and researcher Alice Crites contributed to this report.

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