Elena Kagan, President Obama’s nominee for the Supreme Court, seems to have prepared for her nomination since high school, studiously avoiding stating her views on all but a few issues.
But one aspect of her record sure to receive scrutiny is her time at the Clinton White House, where she was a high-ranking aide on domestic policy issues.
There, Kagan waded into a wide number of thorny issues. Rahm Emanuel, then a Clinton senior adviser, reportedly ended numerous conversations each day with: “Well, Elena better come up with some policy!”
Kagan helped defend Clinton from the Travelgate scandal and worked on issues including welfare, hate crimes, race and tobacco regulation.
Her stances on those issues, as reflected in memos and other written documents, may provide valuable clues about how she views the law.
The first of those clues emerged late Monday when the Associated Press unearthed a memo written by Kagan in 1997 urging Clinton to ban late-term abortions.
Monday, Senate Republicans on the Judiciary Committee were coy about their intentions on how they’ll approach the memos. Recent history indicates they will have to take some action to pry the memos loose.
When President George W. Bush nominated John Roberts to the court in 2005, then-Judiciary Committee Chairman Arlen Specter told the White House he would issue subpoenas for Roberts’s memos from his time in the Reagan White House and in the Justice Department if they were not produced. The White House produced them.
On Monday, only one Senate Republican openly called for the Kagan memos to be released.
“We’re going to request any and all relevant documents. In light of the fact that she has no judicial experience whatsoever, we will have to rely on what she has said and written even more than we would with other nominees,” said Kevin McLaughlin, spokesman for Sen. John Cornyn, Texas Republican.
Cornyn, McLaughlin said, had hoped that the White House would release the documents unilaterally but said that in the absence of that “we trust that they won’t obstruct the process.”
The White House said Monday it will not immediately release the memos.
“I’m sure the committee will request those papers and we’ll reach an accommodation with the Clinton Library on that,” Ron Klain, chief counsel to the vice president and a key figure in the White House legal team, said. “We’ve got to see what the committee wants to see and we’ll go from there.”
A receptionist at the Clinton Library said archivists are “working hard” on the issue of Kagan’s White House documents but the library’s spokeswoman did not reply to a phone call.
Ed Whelan, president of the Ethics and Public Policy Center and a former Justice Department official during the Bush administration, was one of the first prominent conservatives to call for a hardline stance Monday on the issue of releasing Kagan’s memos.
“Kagan’s records from her White House years in the Clinton administration promise to offer important insights into her legal thinking,” Whelan wrote. “It makes no sense to schedule her confirmation hearing until it’s clear when those records will be made available.”
The memos could provide a revealing glance at Kagan’s views, putting on display her takes on internal administration struggles. They could also reveal new information about then-President Clinton, who frequently consulted with Kagan.
Kagan first began working for the White House in 1995 in the counsel’s office, where she helped defend Clinton from the Travelgate scandal, according to a report from the then Republican chairman of the House oversight committee, Rep. William Clinger.
In Travelgate, the first major ethics controversy of the Clinton administration, Clinton fired the entire White House travel office. Critics questioned whether the move was intended to benefit Clinton’s political allies and the White House later admitted the firings were improper.
According to Clinger’s report, Kagan was tasked with collecting records from White House aides to respond to congressional inquiries into the matter. Her involvement beyond that remains unclear.
Abandoning her plans to return to the University of Chicago, where she had been a law professor, Kagan was promoted to deputy director of the Domestic Policy Council, which coordinates policymaking in the White House.
One of the first issues Kagan worked on was welfare reform. Kagan worked on an initiative for the government to hire people on welfare and was involved in negotiations with Senate Republicans about whether noncitizens should receive welfare benefits.
After a Republican Congress passed welfare reform, Kagan fronted a White House effort to push states, which enjoyed surpluses in the wake of the reform, to spend those surpluses on poor people.
“The question is, how does the state use that money?” Kagan said, “Does it put it back into the system and help more people get jobs? Or do they say, ‘Oh, look, this is a surplus. We’ll build roads with it?’”
At that time, Kagan headed two White House policy teams who were working on Clinton’s “initiative on race,” a multi-faceted commission to examine racial issues in America. One of Kagan’s roles was to examine the “implications” of California’s Proposition 209, which banned affirmative action in the Golden State (it was subsequently overturned in court).
A third issue Kagan worked on was a presidential summit on hate crimes. The day before the summit, Clinton appeared before a gay and lesbian group, the first time any president had done so. Kagan briefed reporters on hate crime statistics but her full role on the issue is unknown.
Tobacco legislation was one of the issues on which Kagan worked extensively, brokering a bipartisan deal in the Senate Commerce Committee. The legislation eventually died in the Senate, but a version of it was passed by this Congress and signed into law by President Bush.
President Clinton was said to have favored Kagan and sought her advise on a wide range of issues. For instance, a Dana Milbank profile of Kagan in the New Republic said “when aides were preparing the president for a meeting, he was stumped about a question on Supreme Court rulings on federalism. Instead of calling the Justice Department or the counsel’s office, Clinton sent for Kagan. Clinton and Kagan sat in the Oval Office discussing various rulings, wonk to wonk.”
Other press reports indicate Kagan’s constitutional knowledge gave her an edge when negotiating policy. If the Justice Department objected to a provision in tobacco legislation, for instance, Kagan could discuss the legal issues with top DOJ lawyers, one article says.
Kagan’s fluent involvement in legal issues like that indicates that her White House memos could provide an extensive look at her legal philosophy.
Jon Ward contributed to this report.