May 16th, 2010
09:59 AM ET
4 years ago

WH to archives: Release Kagan documents from Clinton years

 The White House has asked the National Archives to release 160,000 pages of documents from Elena Kagan's time in the Clinton White House to aid upcoming Senate confirmation hearings.
The White House has asked the National Archives to release 160,000 pages of documents from Elena Kagan's time in the Clinton White House to aid upcoming Senate confirmation hearings.

Washington (CNN) - The White House has asked the National Archives to release 160,000 pages of documents from Elena Kagan's time in the Clinton White House to aid upcoming Senate confirmation hearings on her nomination to the Supreme Court.

A letter Saturday from Robert Bauer, the counselor to President Barack Obama, asked the archives to release all records involving Kagan's work as associate counsel to Clinton and deputy director of the Domestic Policy Council, as well as all e-mails and some other documents.

Kagan worked in the Clinton administration from 1995 to 1999.

Her confirmation hearing by the Senate Judiciary Committee is expected to begin this summer, with Obama and Democrats hoping she can be seated in time for the new Supreme Court session in the fall.

While Kagan is expected to be confirmed, leading senators on the Judiciary Committee signaled Sunday that the hearing would be contentious.

Still, influential Republican Sen. Jon Kyl of Arizona told the CBS program "Face the Nation" that a GOP filibuster against Kagan's nomination was unlikely.

"A filibuster should be relegated to the extreme circumstances and I don't think Elena Kagan represents that," Kyl said.

Republicans are basing their attack plan against Obama's second Supreme Court nominee on challenging Kagan's lack of judicial experience and her controversial stance against military recruiters over the "don't ask, don't tell" policy on removing openly homosexual service members.

As Dean of Harvard Law School in the 1990s, Kagan tried to block military recruiters from Harvard because of the "don't ask, don't tell" policy, saying it was discriminatory.

Kagan supported other schools challenging a federal law requiring that recruiters be given equal access or face the loss of federal funding. The Supreme Court unanimously upheld the law in 2006.

Already, former House Speaker Newt Gingrich is calling Kagan unqualified for consideration over the military recruitment issue, a claim vehemently rejected by Democrats.

"I think it's nonsense," said Sen. Dianne Feinstein, D-California, on the CBS program. "I think it's Gingrich hyperbole, and I hope that no one will fall for it."

On the ABC program "This Week," committee chairman Sen. Pat Leahy, D-Vermont, and ranking Republican Sen. Jeff Sessions of Alabama differed sharply on the issue.

Sessions called Kagan's actions in that matter the result of a "deep personal belief" that raised questions about whether she would adhere to the law as a justice on the nation's highest court.

"She disallowed them from the normal recruitment process on campus," Sessions said, saying Kagan has "violated the law of the United States" in doing so.

Leahy, however, referred to Republican consternation over the issue as "sound and fury signifying nothing."

"The recruiters were always on Harvard's campus," Leahy said, summing up the story as "she challenged the law, the law was upheld, and she said, 'We will follow the law at Harvard.'"

In a dig at Sessions, Leahy also said senators should ignore rhetoric from the "far right and far left" regarding Kagan, and instead "make up our own minds."

Judiciary Committee hearings on Supreme Court hearings have been criticized as political carnivals rather than serious ideological assessments of candidates, who regularly defer from offering opinions on specific issues or cases.

Even Kagan herself criticized the process in a 1995 paper as a "vapid and hollow charade."

Leahy said Kagan told him last week that she knew that her quotation would come up in the hearing, and that he warned her he would be among those raising it. At the same time, Leahy defended the confirmation process as necessary if somewhat cumbersome.

He noted nominees are unable to say how they might rule on upcoming cases, because any prejudgement would require their recusal on the matter. However, senators are obligated to ask the tough questions, Leahy said.

"There's only 100 people who get to vote on this lifetime nominee," he said. "We represent 300 million Americans."

Sessions noted Kagan's lack of judicial experience and an accompanying record of court decisions for senators to study made the confirmation hearing even more important than usual.

"She has so little other record, it's going to be a big deal," Sessions said. "It's going to be so important how she testifies."

On the CBS program, Kyl echoed the concerns of Sessions, describing a hearing scenario that would seemingly corner Kagan.

"You should never answer a senator's question about how you would decide a case," Kyl noted, but added that senators have no information on how Kagan would decide cases because she never has been a judge. "That gets back to the lack of experience."

Feinstein, however, called Kagan a woman of unique accomplisments who also was "down to Earth" and friendly.

"She doesn't carry her intelligence like a medal on her chest," Feinstein said, adding: "I have seen nothing that ought to cause anything other than her being confirmed."

Another committee member, New York Democratic Sen. Charles Schumer, called Kagan "brilliant and practical," but told NBC's "Meet the Press" that he still needed to learn more about well she understands the practical consequences her decisions could have on businesses, local government and people.

Senate Minority Leader Mitch McConnell, R-Kentucky, however, told the NBC program that Kagan's arguments for the Obama administration in support of long-standing restrictions on independent spending by corporations and unions in political campaigns were "very troubling."

McConnell, an outspoken opponent of campaign finance regulations, called the Supreme Court's January decision striking down those restrictions a victory for free speech. Obama and others have sharply criticized the ruling, with the president warning in his State of the Union address that the decision will allow overseas corporations to influence U.S. elections - an assertion the ruling's defenders say is incorrect.

McConnell also said Kagan's lack of experience as a judge could be problematic, even though he supported then-President George W. Bush's failed nomination of White House counsel Harriet Miers to the high court. Miers, like Kagan, also lacked judicial experience.

"I think we learned from the Harriet Miers nomination that when you're a friend of the president and don't have any judicial experience, it makes it important to make sure that you're not just going to be a rubber stamp for the administration," McConnell said.

Miers' 2005 nomination quickly came under fire from the administration's conservative supporters, who wanted a nominee with a clear record of opposition to abortion and solid views on other legal issues important to them. Democrats, meanwhile, accused Bush of nominating a longtime crony who lacked the necessary qualifications for the Supreme Court.

Kyl indicated Sunday on the CBS program that Republicans also questioned Miers' nomination, even if many publicly supported it.

He said Republicans were being "judicious" at the time, but noted that the nomination was withdrawn. "Let's just put it that way," he said.

Updated: 12:51 p.m.

soundoff (7 Responses)
  1. DC Johnny

    Aaaaaaaaand almost 20 months later, Obama has finally discovered what the word "transparency" means.

    Better late than never, right?

    May 16, 2010 10:09 am at 10:09 am |
  2. Charlie in Maine

    Good that wil give the GOP something to do instead of destroying the nation at large they can consentrate on one person. I think if there were something to "find" it might have come up by now but hey that why they get the big bucks right? to be thorough? Thoroughly disgusting I would say.

    May 16, 2010 10:11 am at 10:11 am |
  3. ted

    Jeff Sessions is a small man, but typical of the Grand Obstructionist Party, AKA The Party of No. He needs to dig beyond the media sound bites and investigate what Kagan was doing and the role she occuppied and what the role's responsibilities were when rendering the opinion when she did it. But now, Session with his comical ears will seize on anything to obstruct and complain.

    May 16, 2010 11:09 am at 11:09 am |
  4. Lilarose in So. Oregon

    With our nation coming in third as a world super power, I would think that getting our ducks in a row for every issue we as a nation face is top priority.

    We need to get more involved in the Gulf oil disaster. We are expecting one company to take care of what could destroy America if we don't deal with it and soon?

    That is just one issue I am most concerned about. Right now it is the fodder for late-night TV comedians.

    May 16, 2010 11:12 am at 11:12 am |
  5. Mechel Yapp

    When we voted for presidents and prime ministers etc, did it matter that they had that particular experience already? No, we voted for them and they got hands on training. So what is the excitement about Elena Kagan? She is more qualified than the rest of us.

    May 16, 2010 11:27 am at 11:27 am |
  6. emma

    The Administration's openness is to be applauded. What a contrast to the GOP folks who engage in sly cover-ups and dishonesty.

    May 16, 2010 12:06 pm at 12:06 pm |
  7. ags

    They will be released............but like everything else from the Clinton library they will just miss the hearing!

    May 16, 2010 12:36 pm at 12:36 pm |