SG Kagan's Paper Trail
Posted by: Hugh Hewitt at 12:32 AM
Despite the near constant repition by MSM to the contrary, the Solicitor General does have a "paper trail," but it is mostly on the shelves of the Clinton Library. Associate Counsels to the president and Assistants to the President for Domestic Policy write and send many memos, and at least when I was in the Counsel's Office, many of the lawyers offer their own opinions on the constitutional merits of laws sent for the president's signature and will also suggest and draft signing statements.
More than a few controversial statutes raising constitutional issues came through the White House while SG Kagan was in the Counsel's office and on which she may have opined, including welfare reform and DOMA. Similarly she must have had many opinions on the various second term initiatives pursued by President Clinton, opinions on the impeachment proceedings and various defenses and privileges offered up by the White House in those years, and perhaps as a senior and trusted aid, even opinions and memos on such extraordinary assertions of executive power as the decision to bomb Serbia without prior Congressional authorization.
Republicans in the Senate have to insist on the release from the Clinton Library of every memo from or to SG Kagan --exactly the same sort of release as was made of Chief Justice Roberts' White House papers at the time of his nomination.
I discussed the Kagan papers with Newsweek's Howard Fineman and The New Republic's Jonathan Chait on Tuesday's radio show. The transcript of the conversation with Fineman is here, and the Chait transcript is here. Both seem to agree that whatever papers exist ought to be supplied to the Judiciary Committee. The GOP ought to press Senator Leahy to make that demand asap so as to allow the Committee --and the public-- a full opportunity to review SG Kagan's work product before the hearings are even scheduled.
I doubt very much there is anything that will surprise in the papers, but a rule for one nominee ought to be the rule for them all, and Republicans ought to insist on exactly the same process for nominee Kagan as applied to nominee Roberts.
hughhewitt.com
Will the Senate see Kagan's long paper trail?
By: Byron York
Chief Political Correspondent
May 14, 2010
"We're talking about tens of thousands of pages," says Susan Cooper, spokeswoman for the National Archives and Records Administration. "It's a massive job."
Cooper is discussing the work of processing papers from Supreme Court nominee Elena Kagan's two years, 1995 and 1996, in the Clinton White House Counsel's Office. During that time, Kagan, like any overworked staff lawyer, handled a wide variety of issues and wrote or contributed to thousands of memos, e-mails and other documents. Those papers, boxes and boxes of them, are at the Clinton Presidential Library in Little Rock, under the supervision of the archives.
You've probably heard a lot of talk about Kagan not having a paper trail. It's not true. In fact, she has a long paper trail. The only question is whether the senators who vote on her confirmation will be allowed to see it.
There have already been some stories -- articles like "Memos Reveal Elena Kagan's Centrist Side" -- based on documents from Kagan's White House service, but those are from her time, 1997 to 1999, on the White House Domestic Policy Council. Cooper says those papers have already been processed by government archivists and many, although not necessarily all, of them have been posted on the Internet.
But what Cooper calls the "bulk of the [Kagan-related] records that we have" come from Kagan's time in the counsel's office. They have not yet been processed and are not yet open. And, of course, they are likely to cover issues that would be useful to senators seeking to learn more about Kagan's legal thinking.
So the question is: Will senators get to see them? If history is any guide, the answer is yes.
In 2005, when John Roberts was nominated for the Supreme Court, minority Democrats wanted to see papers Roberts had written while serving in the Reagan White House Counsel's Office in the mid-1980s. President George W. Bush complied, and the Senate Judiciary Committee was given more than 50,000 pages of material detailing Roberts' positions on issues like civil rights, the separation of powers, school prayer and other topics.
Although Bush declined to produce everything Roberts wrote while at the Justice Department in another job, the White House papers gave the Senate unique insights into Roberts' legal thinking. The public learned a lot, too, since the papers were also the source for hundreds of press accounts describing Roberts' writing style and personality.
Now, we have another Supreme Court nominee who spent time in the counsel's office.
"There is now a precedent that a White House lawyer's materials will be produced," says Bradford Berenson, an associate counsel in the Bush White House. "I think it will be very difficult for the Obama administration, given everything they've said about transparency and openness, to withhold these documents."
That applies even to cases in which the Clinton White House claimed executive privilege. For example, in 1996, Kagan was involved in a controversy in which the Clinton administration was accused of siding with a group of radical environmentalists locked in a standoff with federal agents in Oregon. Officials at the U.S. Forest Service suspected that a staffer at the White House Council on Environmental Quality tipped off the protesters about a coming federal crackdown.
The situation drew the attention of Republicans on the House Committee on Natural Resources, who found that Kagan, in the White House Counsel's Office, did little, if anything, to find or punish the leaker, even though that person had revealed confidential information that potentially endangered the lives of Forest Service agents. GOP investigators asked for Kagan's notes on the matter at the time, but the White House refused, claiming executive privilege.
It's possible Senate Republicans will want to see those documents today. Given the Roberts precedent, there seems no reason for the papers to remain secret.
It's not yet clear whether there will be a battle over White House papers. Republican Senate Judiciary Committee sources say it's too early to know what documents GOP senators will want to see, and it's also too early to know how the White House will respond to Senate demands.
But remember: Elena Kagan has a very long paper trail. The Senate will need to see a lot of it before she is elevated to the nation's highest court.
Byron York, the Examiner's chief political correspondent, can be contacted at byork@washingtonexaminer.com. His column appears on Tuesday and Friday, and his stories and blog posts appears on ExaminerPolitics.com
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