President Barack Obama introduces Solicitor General Elena Kagan as his choice for Supreme Court Justice in the East Room of the White House in Washington, Monday May 10, 2010. (AP Photo/Pablo Martinez Monsivais)
Rummaging through four years of e-mails can offer a pretty good window into someone’s personality.
In the case of Supreme Court nominee Elena Kagan, emails from her time at the Clinton White House show not only her keen intellect and political acumen, but the New Yorker in her as well. She seemed to relish a good policy fight, had little patience for those who were unprepared for meetings, and took a jaundiced view of feel-good actions that weren’t likely to produce results.
When a White House aide circulated a proposal in 1998 for an executive order increasing the federal government’s focus on children, Kagan let loose.
“I confess to feeling somewhat baffled by this—an executive order on children saying what??” Kagan wrote in an e-mail sent to deputy chief of Staff Maria Echaveste and copied to three other senior aides. “We have many different initiatives that focus on children…education policies, child care policies, health policies, etc. We shouldn’t trivialize our work in this area by issuing an executive order telling everybody to [do] everything they can for every child.”
Kagan was similarly biting when she saw a draft of President Bill Clinton’s 1997 State of the Union address including a passage where Clinton was to say he hoped to be a “repairer of the breach,” a phrase that comes from the Bible’s book of Isaiah.
“That quote from Isaiah is the most preposterously presumptuous line I have ever seen," she wrote. "The president would deserve it if the press really came down on him for this."
Kagan occasionally peppered her emails with salty language that would make Vice President Joe Biden proud, at one point using a New Yorkerized version of the word “unbelievable” to respond to a message about a legislative snafu related to welfare reform.
After another top White House aide drafted a detailed email replying to a series of concerns expressed by Clinton racial policy adviser Chris Edley, Kagan made clear she would have dealt with him more brusquely.
“You’re far too nice,” she wrote.
While the White House has billed Kagan as a consensus-builder, she seems during the Clinton years to have been relatively fearless about taking unsympathetic positions when she thought it necessary achieve the administration’s goals.
When Sen. Patty Murray (D-Wash.) and Paul Wellstone (D-Minn.) proposed legislation to drop welfare limits for women claiming to be victims of domestic violence, Kagan fought the legislative plan by suggesting that states might abuse such exceptions.
“Kagan clarified that the concern was not solely that states might game the requirements by liberally granting domestic violence waivers, but rather that they might grant waivers without providing the services necessary for victims to leave assistance and get jobs,” wrote Anil Kakani, a budget official on a conference call where Kagan debated the issue with Senate aides.
The Clinton Presidential Library previously released copies of about 80,000 pages of paper files relating to Kagan during her years in the White House Counsel’s Office and as the deputy domestic policy adviser. Friday’s release consisted of about 78,000 pages of emails Kagan sent or received during that time. The White House has cautioned that Kagan’s comments in the files came as a legal and policy adviser to Clinton and therefore may not always reflect her personal views.
Among the most notable items in the latest batch:
--Kagan appears to have been involved in drafting a Clinton-era message to Congress casting strong doubt on the constitutionality of barring children from buying violent video games—an issue the Supreme Court is set to take up in its next session.
“The Administration…opposes an expected amendment to ban the distribution of certain violent material to teenagers,” the language Kagan submitted in connection with a 1999 juvenile crime bill said. “A broad prohibition of this kind on the sale or exhibition of violent materials would raise very serious First Amendment concerns – so much so that the drafters of the provision have included expansive loopholes that insofar as they mitigate the constitutional problems would render the provision, in critical respects, virtually impossible to apply or enforce.”
--While Kagan sounded skeptical of that effort, just a couple of years earlier she was keen on an idea to expand the concept of the V-chip—a mechanism allow parents to block access to violent or sexually explicit material—from television to the Internet.
“We should definitely make plans now” to roll out the idea, Kagan wrote in an e-mail pointing out that it could help respond to a negative court decision expected on a law targeting such online content. When speechwriter Jonathan Prince said Kagan’s colleagues in the White House counsel’s office “kiboshed it” earlier, she wrote: “Lawyers are kind of cautious, aren’t they?”
--More evidence of disagreements between Kagan and a key Clinton adviser on racial issues, law professor Chris Edley.
After Kagan and other White House aides rejected the idea of an executive order banning racial profiling and suggested instead an order to collect data on such practices, Edley sent Kagan an e-mail deriding “your version” as milquetoast.
“Data collection is fundamentally disingenuous. It may even be dissembling,” Edley wrote. “If and when POTUS announced your version, the civil rights community will deride it. It is more like [New York police commissioner Howard] Safir than it is like [New Jersey Gov. Christine Todd] Whitman. [Former N.J. Sen. Bill] Bradley will have a field day, and [Vice President Al] Gore will be humiliated.”
Clinton approved the version Kagan endorsed and said Edley’s would have to wait.
--Kagan, along with her boss Bruce Reed, repeatedly tried to push Clinton’s so-called race initiative towards efforts more consonant with the administration’s tough on crime approach. “We might profitably reconceive the race issue in criminal justice as one that is—not in whole, but in part—about law enforcement authorities’ failure to protect minorities communities from criminality,” she wrote in a 1997 proposal.
--Kagan urged the administration to boldly assert its legal authority to promote gun safety through the Consumer Products Safety Commission and the Bureau of Alcohol Tobacco and Firearms. “I have to say that the prospect of getting into a fight with Congress on this one doesn’t strike me as so bad,” she wrote in 1997.
--In 1999, Kagan warned a top aide to Gore not to wade into a debate about proposed legislation to strengthen the rights of religious groups to disobey state regulations when states couldn’t show those rules to be of vital importance. She warned that embracing the bill would anger gay groups who feared it would countenance discrimination and that trying to address those concerns would tick off religious groups.
“You’ll have a gay /lesbian firestorm on your hands. (Alternatively, if you come out for a version of [the bill] that has a civil rights carve-out, you’ll have a religious groups firestorm on your hands."
--On the sensitive issue of so-called partial-birth abortion, Kagan warned that the administration’s approach was out of sync with abortion rights advocates. “I think it’s a good idea to talk, though I suspect that out idea of strategy will not be their idea of strategy,” she wrote in a 1997 e-mail.
--Kagan urged the Clinton administration to find a legal basis to allow students performing public service through religious groups to defer payment on student loans, just as the administration planned to allow those in secular service programs to do.
Told of a legal opinion that ruled out the benefit for religious-related service, Kagan wrote: “I guess I have a reaction, which is that we’re making the president look like a liar. Who’s been giving the legal advice?...We have to give people a very strong signal that we need to find some way of including people who are doing service activities under the auspices of church programs…At the very least we should be able to include participants in programs that aren’t pervasively sectarian….it would be nic to find language that stretches the envelope still further.”
Kagan’s comments evoke a current legal debate within the Obama administration about how much religion religious groups are permitted to include in federally-funded social work.
Nearly 2000 pages of the documents processed for Friday’s release were withheld from the public on privacy grounds or because they reflected confidential advice to Clinton, according to a letter from the Archives to the Senate. Senators were given access to 860 of those pages on a confidential basis, the Archives said. Republicans have expressed concerns about the volume of the deletions.
There was some evidence in the documents that the privacy restrictions were being inconsistently applied. A batch of documents released last week about appointments to a possible presidential race commission mulled “a morass” of questions they could raise. “Does Jesse Jackson have a place on the Commission? Colin Powell?” Kagan and Reed asked. The passage is whited out, on privacy grounds, from another copy of the same memo released on Friday.
Catherine Cheney, Gloria Park, Giovanni Russonello and Daniel Strauss contributed to this report.