Some critics on the Left have compared Elena Kagan’s nomination to the Supreme Court to that of Harriet Miers by George Bush — a stealth candidate who doesn’t fit the base’s demand for SCOTUS nominee. An initial assessment of Kagan’s papers at the Clinton Presidential Library by Politico’s Josh Gerstein will give them more ammunition. They show Kagan involved in Bill Clinton’s effort to “triangulate” on issues to outbox Republicans by taking centrist or conservative positions and pre-empting their attacks on him after the disastrous 1994 midterms:
The memos reviewed by POLITICO suggest that, during her time as a White House deputy domestic policy adviser, Kagan fit comfortably within a cadre of Clinton aides known for centrist impulses. And Clinton often appears to have sided with Kagan’s approach.
However, the documents could underscore concerns among some liberal activists that Kagan was an advocate of the policy triangulation of the Clinton White House and thus might not be a reliably liberal vote on the court.
A 1998 memo shows that Kagan was among advisers encouraging Clinton to deny Medicare funding for abortions in cases of rape or incest – in part to avoid a messy battle with Republicans. …
In another instance, a memo shows Kagan opposed efforts by labor unions and Sen. Ted Kennedy (D-Mass.) to get Clinton to insist that he would only sign a bill Republicans were advancing to ease overtime pay rules if Congress used the same measure to expand the Family and Medical Leave Act.
In a handwritten note to Reed, Kagan said she preferred trying to alter the so-called comp time bill to address the administration’s priorities on that issue rather than threatening a veto if the family leave expansion wasn’t included. “The AFL-CIO has requested this particular strategy and veto threat,” the accompanying memo said.
A set of memos about racial profiling don’t mention Kagan’s position directly, but indicate that most of Clinton’s domestic policy staff favored a study of the issue at a time when two aides, Chris Edley and Maria Echaveste, wanted Clinton to sign an executive order banning the practice in most instances.
This may have more direct impact on Kagan’s judicial philosophy, especially for the Left:
The memos also show Kagan served on a government working group that decided to dial-back the Clinton administration’s efforts to decrease the disparity in sentencing between crimes involving crack and those involving powdered cocaine. A draft report from the group painted the decision as a grudging but realistic one based on a stalemate in Congress over the issue. “Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites,” the report said.
The issue of disparate sentencing between cocaine and crack was, at the time and now, a lever to play racial politics. Clinton’s fade on making this a front-and-center issue angered many on the Left and some libertarians as well, for both political and policy reasons. The principled argument on creating parity for sentencing guidelines between the two illegal drugs has some validity even apart from the demagoguery it provoked.
If Kagan was responsible, even in part, for pushing Clinton to drop the subject, expect a big howl from the Left and a big question from the Right. If Kagan really believed that the sentencing disparity was unjust, shouldn’t she have taken a principled stand to continue to fight? As a Supreme Court justice, will Kagan stand up for her beliefs, or will she horse-trade as she arguably did in this instance? This relates directly to judicial practice and theory.
Political aides conduct machinations that require compromise, while jurists have to make decisions based on principle. That’s the problem that comes up when a President nominates a political aide to the federal bench. Usually that happens at the district court level, which allows a judge to build a record of decisions that can be judged for actual judicial philosophy. Unfortunately for Kagan, that pattern continued at Harvard Law, where she joined the administration in attempting to keep military recruiters off campus. Now the explanation from her defenders is that she was just supporting the Harvard administration’s position — which sounds a lot like the political gamesmanship Kagan enabled in the Clinton administration.
The most accurate thing that can be said about Kagan’s public record is that she makes a great triangulator. She should run for office with that kind of talent, but Kagan probably doesn’t belong on the Supreme Court on that basis.