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.