Tags: US | Kagan | Documents

Kagan Had Role in Clinton White House's Big Fights

Saturday, 12 Jun 2010 10:17 AM

 

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For four years as a White House lawyer and aide, Supreme Court nominee Elena Kagan had a hand in many of the major issues that drove and vexed the Clinton administration.

Nearly 90,000 pages of records from the Clinton White House, released at the request of senators who will vote on her nomination, show that Kagan played a role in crafting Clinton's policies on abortion, gun control, welfare reform and tobacco.

They also reveal that she was among the small army of lawyers who worked unsuccessfully to postpone Paula Jones' sexual harassment lawsuit against President Bill Clinton. His testimony for the suit, denying a sexual relationship with White House intern Monica Lewinsky, helped lead to his impeachment.

Kagan must have impressed her superiors because Clinton sought to reward her, at age 38, with a seat on the federal appeals court in Washington, often a steppingstone to the Supreme Court.

When Kagan wrote Clinton to thank him for the nomination, the president sent back a handwritten response: "I was honored to nominate you — you will be a wonderful judge if we can get you through — and young enough to have a profound impact."

She didn't get through, stalled by the Republican-controlled Senate until Clinton left office in January 2001. But now, at 50, Kagan still would be the youngest member of the current high court.

The William J. Clinton Presidential Library in Little Rock, Ark., has not released about 11,000 pages of Kagan's e-mails. Republicans renewed complaints that the documents are emerging too slowly for her confirmation hearing, scheduled to begin June 28.

"I remain deeply concerned that Ms. Kagan's records will not be fully produced in time for the committee to conduct a proper review," said Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee. Based on the information senators have so far, he said, "it is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment."

The committee chairman, Sen. Patrick Leahy, said the concerns about timing were "misguided and misplaced." He said "there is more than enough time for senators and their staff to review" the records.

"The documents released today show Elena Kagan to be a brilliant lawyer, advising President Clinton on a variety of complex issues," said Leahy, D-Vt.

Many documents reinforce the idea that Kagan tried to fashion compromises across a range of issues, faced with the difficult political reality of a Democratic White House and Republican Congress.

Her work on tobacco legislation sought to bridge differences between public health advocates and cigarette makers as well as attract a bipartisan majority in Congress.

In a July 1997 memo to Clinton on drug sentencing guidelines, Kagan and her boss, Bruce Reed, counseled a middle-ground policy to sharply reduce — but not eliminate — the disparity between crack and powder cocaine sentences.

They said Clinton could expect criticism both from Republicans, who would call the position soft on drug users, and the Congressional Black Caucus, which would accuse the administration of "failing to go far enough to remove a racial injustice."

In 1996, Kagan worked on a politically tricky election-year issue, trying to come up with the right response to the GOP-led ban on an abortion procedure that opponents call partial-birth abortion.

Clinton vetoed the bill because it lacked an exception for cases where it was needed to avert "serious adverse health consequences" for the mother — language that Kagan helped draft. Congress failed to override the veto in 1996 or a second time in 1997.

Some material is being shared only with the committee, including many Kagan's memos and notes about the Jones suit. The library said that publicly releasing those documents would divulge confidential advice.

That suit, involving allegations from Clinton's time as governor of Arkansas, was brought by Jones, a former state employee. Clinton wanted to postpone the suit until he left office. A unanimous Supreme Court eventually ruled against him.

In 1996, Kagan praised a legal brief written by then-Solicitor General Walter Dellinger supporting Clinton's bid to postpone the suit.

"It's really pretty good," she said, noting approvingly that the brief "downplays" the question of whether the president should have immunity for conduct before he took office. Instead, it focuses on the argument that the case should be delayed because it would disrupt the performance of Clinton's duties as chief executive.

Kagan also helped oversee the gathering of subpoenaed documents at a crucial point in the Whitewater investigation. In a January 1996 memo, Kagan and another White House lawyer announced to presidential aides that "we have received a subpoena" to provide all material on Hillary Rodham Clinton's legal work for a failed Arkansas savings and loan owned by the Clintons' business partners, Jim and Susan McDougal.

The memo instructs staff members in the Executive Office of the President: "If you believe you may have responsive documents but cannot locate them ... please contact Elena Kagan immediately."

——

Associated Press writer Julie Hirschfeld Davis contributed to this report.

© Copyright 2014 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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