This should be a no-brainer for an administration that styles itself as the most transparent White House in history, but don’t bet on disclosure in this case. Elena Kagan may be an almost-perfect stealth candidate for the Supreme Court, thanks to her lack of judicial experience and low volume of published intellectual work, but Kagan also worked as a senior policy wonk within the Clinton administration. Any written memos from Kagan will give a much clearer indication of her views on a range of issues — and undo the “stealth” character of the appointment:
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. …
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.
So what did the Most Transparent White House Evah say in response? Ask us — and we might agree, depending:
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.”
Timing is essential in this case. The White House would like to have Kagan confirmed by the end of July; any later, and the timing of her ability to join the Supreme Court when it convenes on the first Monday in October could be threatened. In order for the members of the Senate Judiciary Committee to hold confirmation hearings in June or July, the members would need enough time to read all of the paperwork they’ve requested. That gives them only a small window of time now to get those documents from the Clinton Library, confirm that the set is complete, and then analyze them properly.
Had Obama nominated a sitting judge, as he did with Sotomayor, the Judiciary Committee could have started first with published opinions and the questionnaire. That doesn’t apply in this case — and it makes the Clinton-era documentation even more critical to their work. Kagan has no public paper trail on her approach to judicial philosophy or issues, which makes it very difficult for Judiciary members to determine her qualifications and competence to sit on the nation’s highest court.
Because Obama knowingly made that choice, it’s even more incumbent on the White House to provide that documentation. If they stall, it sends a big signal that Kagan has something to hide — and that Obama knows it.
What could that be? Kagan started off her service to Clinton in the counsel’s office in time to assist in the defense of Clinton and his team from questions about the Travel Office firings, which eventually resulted in a bogus criminal prosecution intended to justify a political housecleaning in what had been an apolitical White House function. Later, she turned into a senior policy development official, working on Clinton’s hate-crimes efforts, the tobacco restriction legislation that eventually passed under George Bush, welfare reform and issues with state spending, and more. Those could all turn into interesting and revealing topics for Kagan’s confirmation hearing — which may be why the White House isn’t keen on releasing the memos.
Update: Probably not a coincidence:
The White House Monday said that Supreme Court nominee won’t follow her own advice from 1995 in answering questions on specific legal cases or issues, supporting Kagan’s flip flop on the issue that she first made a year ago.
Kagan wrote in 1995 that the confirmation process had become a “charade” because nominees were not answering direct questions, and said they should have to do so.
But during a briefing with reporters in the White House, Ron Klain, a top legal adviser to Vice President Joe Biden who played a key role in helping President Obama choose Kagan, said that she no longer holds this opinion.
What. A. Surprise.