Research Briefing

Elena Kagan’s Time Advising Clinton White House Show Her To Be A Fiercely Partisan Democrat 

“As a young White House lawyer, Elena Kagan waded deeply into politically volatile issues like abortion, immigration and religious freedom that may eventually come before her if she is confirmed to the Supreme Court ...” (Peter Baker & Sheryl Gay Stolberg, “Kagan Expressed Broad View Of Religious Freedom,” The New York Times, 6/11/10)

AT WHITE HOUSE, KAGAN FOCUSED ON PARTISAN POLITICAL STRATEGY

At White House, Kagan’s “Sharpest Skills Were Her Political Antennae.” “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… 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.” (Amy Goldstein, “Kagan's Newly Released E-Mails Reveal Confident Voice In Clinton White House,” The Washington Post, 6/19/10)

Kagan Wrote “A Number Of Memos” Noting Policies That Would Affect “Repubs, Not Dems!” “Worried that the ruling would provide Republicans with a leg up because of their hard-dollar fundraising prowess, the White House began working on a new round of campaign finance laws.  Kagan authored a number of memos related to the effort, and Republicans are seizing on them as proof that she views the law as a tool to gain a particular outcome — in this case, trying to neutralize the effect of the ruling on Democrats.  …  In a second memo, Kagan noted that ‘soft $ ban – affects Repubs, not Dems!’ and appears to raise the possibility of having the Federal Communications Commission ‘issue a reg for free TV.’” (John Stanton, “GOP Launches New Line Of Kagan Attack,” Roll Call, 6/23/10)

Kagan Outlined An “Aggressive Strategy … For Quick Passage Of [Clinton] Gun Control Proposals.” “And on guns, Kagan and her supervisor in 1999 promised Clinton a memo ‘outlining an aggressive strategy ... to press for quick passage of our gun control proposals.’ In a memo, Kagan and Domestic Policy Council Director Bruce Reed praised a news story noting that the White House wanted to move on the initiative before Republicans and the National Rifle Association could mobilize against it, writing that the article had ‘perfectly conveyed our intended message.’"(Julie Hirschfeld Davis, “Kagan On Abortion, Assisted Suicide In Files,” The Associated Press, 6/4/10)

Kagan Recommended Clinton Endorse Amendment She Believed Was Unconstitutional To Protect President’s “Credibility.” “The Office of Legal Counsel of the Justice Department similarly believes that both the Daschle and the Feinstein amendments, properly read, violate Roe because they countenance tradeoffs involving women’s health. … We recommend that you endorse the Daschle amendment in order to sustain your credibility on HR 1122 and prevent Congress from overriding your veto.” (Elena Kagan, “Memorandum From Bruce Reed And Elena Kagan To President Bill Clinton,” ABC News, 05/13/97)

• And Continued To Work On The “Politically Charged” Partial Birth Abortion Issue Even After She Moved From The Counsel’s Office. “Of all the politically charged issues that Kagan worked on, the one that seemed to have held her interest was the controversy over partial birth abortions. Though memos Kagan drafted called the procedure ‘disturbing,’ she asked to continue working on the subject even after she transferred from the counsel’s office to become deputy director of domestic policy in 1997. ‘If it’s OK with you, I’ll keep up with this issue,’ she wrote to her new boss, Bruce Reed.” (Josh Gerstein, “New Documents Show Political Kagan,” Politico 6/11/10)

AND WORKED TO MINIMIZE “POLITICAL FALLOUT” …

Kagan Tried “To Protect Her Bosses From Political Fallout, Even If She Agreed With Their Policy Goals.” “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.” (Amy Goldstein, “Kagan's Newly Released E-Mails Reveal Confident Voice In Clinton White House,” The Washington Post, 6/19/10)

Kagan Worked To Shield Bill Clinton From Questioning In Whitewater And Paula Jones Investigations. “As a young lawyer in the Clinton White House, Supreme Court nominee Elena Kagan argued in favor of confidentiality for President Clinton in the early stages of the Whitewater investigation and the Paula Jones sexual harassment suit, maintaining that a legal shield protects the privacy of meetings between the president and his lawyers… That claim failed when the Supreme Court in 1997 said that president had no legal shield from suits involving alleged private wrongdoing. That decision led to Clinton being questioned under oath, and the eventual revelation of his secret affair with White House intern Monica S. Lewinsky.” (David G. Savage and James Oliphant, “Kagan Backed Clinton In Whitewater Dispute,” The Los Angeles Times, 6/11/10)

• “In the Jones case, Ms. Kagan served as a link between the White House and private lawyers as they argued that a sitting president should not be forced to testify in a civil law suit about behavior before taking office.” (Peter Baker & Sheryl Gay Stolberg, “Kagan Expressed Broad View of Religious Freedom,” The New York Times, 6/11/10)

Kagan Also Worked To Keep Whitewater And Jones Deliberations Secret, Ghostwriting Editorials In The Process. “But the documents that were released make clear that Ms. Kagan was part of a White House effort to defend the secrecy of presidential deliberations. In the Whitewater case, she worked to deflect a Senate subpoena for notes of meetings between the White House and private lawyers. She solicited supportive statements or op-ed articles from former officials and law professors, even ghostwriting or editing some of them.” (Peter Baker & Sheryl Gay Stolberg, “Kagan Expressed Broad View of Religious Freedom,” The New York Times, 6/11/10)

… WHILE STILL ADVANCING LIBERAL AGENDA

Kagan Defended A Veto Of Late-Term Abortion Ban. “As an aide to former President Bill Clinton, Supreme Court nominee Elena Kagan helped defend her boss' veto of a measure that would have banned late-term abortions with few exceptions, according to files handed over to Congress Friday. Kagan's memos and notes — part of a 46,500-page batch of records released by the William J. Clinton Presidential Library — reveal her role as the administration was playing defense against a Republican Congress that was trying to impose new limits on abortion rights.” (Julie Hirschfeld Davis, “Kagan On Abortion, Assisted Suicide In Files,” The Associated Press, 6/4/10)

Kagan Argued That There Was “No Morale Rationale” Against Cloning Fetal Embryos. “Kagan wrote Clinton in 1997 advising him to submit legislation banning reproductive cloning but permitting cloning of embryos. In a memo she co-wrote with presidential science adviser Jack Gibbons, Kagan notes that the ‘right-to-life community’ objects to embryo cloning, but says ‘there is no moral rationale’ for treating them differently from embryos developed other ways when they're being used only for research.” (Julie Hirschfield Davis, “Kagan Pushed Liberal Policies With Pragmatism,” The Associated Press, 6/5/10)

Kagan Wrote That A Law Banning Assisted Suicide Was “A Fairly Terrible Idea.” “She wrote in 1998 that encouraging a new federal law banning assisted suicide would be ‘a fairly terrible idea.’ She expressed the opinion in a handwritten note during an internal administration debate over whether doctors in Oregon should be allowed to prescribe fatal drugs to help terminally ill patients commit suicide.” (Julie Hirschfeld Davis, “Kagan On Abortion, Assisted Suicide In Files,” The Associated Press, 6/4/10)

“Kagan Supervised Work Implementing The Brady Law” Assault Weapons Ban. “As deputy director of the Domestic Policy Council under Bill Clinton, Kagan supervised work implementing the Brady law, which implemented a background check system, info from the newly released docs show. Kagan also worked on a 1997 executive order related to the assault weapons ban -- an order that updated an earlier one prohibiting the importation of firearms not usually used for sporting purposes. And she worked on various Clinton-era proposals to strengthen regulation of child-safety locks and to toughen up restrictions on adults from making guns too readily available to children.” (Greg Sargent, “GOP To Attack Kagan's Gun Control Work For Clinton,” The Washington Post, 6/18/10)

• “In a May 1998 memo from her time as a policy aide, Kagan and chief domestic policy adviser Bruce Reed warned Clinton about Republican efforts to weaken a ban on assault weapons.” (Julie Hirschfeld Davis, “Kagan Memos On Abortion Limits, Religious Rights,” The Associated Press, 6/12/10)