In the past two weeks, the William J. Clinton Presidential Library has released two batches of documents pertaining to Supreme Court nominee Elena Kagen's tenure in the Clinton administration. According to The Wall Street Journal, the first batch – approximately 46,500 pages of documents from Kagan's time serving as deputy director of the Domestic Policy Council in the Clinton White House from 1997 to 1999 – reportedly consisted mostly of "documents sent to Ms. Kagan, such as reports, news clippings and press releases, rather than memos she wrote herself." The documents, if nothing else, revealed that Kagan dealt with a broad array of policy issues during her time spent at the heart of the White House policymaking operation. The second batch, released last Friday, consisted of some 42,000 more documents from Kagan's time serving as White House counsel from 1995-1996. Neither set of documents includes an estimated 70,000 pages of e-mails written by or to Kagan – the documents most likely to shed some light on Kagan's views.
On Friday, Senator Jeff Sessions (R-AL), top Republican on the Judiciary Committee, issued a press release addressing the pace of document production and approximately 1,800 pages that are being withheld from the public for reasons of privacy and confidentiality:
I remain deeply concerned that Ms. Kagan's records will not be fully produced in time for the Committee to conduct a proper review. With just over two weeks until the hearing, we are still waiting on nearly 70,000 pages of documents containing Ms. Kagan's email records from her time in the Clinton White House. […]
We are also still waiting on material from the Department of Defense relating to Ms. Kagan's decision as Dean of Harvard Law School to discriminate against military recruiters and remove them from the campus recruiting office. These actions, in defiance of federal law, required intervention from the Department of Defense. I asked that records relating to the DOD's contact with Harvard be provided no later than today.
A good portion of Ms. Kagan's record has still not been provided to the Committee. But based on what we already know from her memos as a Supreme Court clerk, her time in the Clinton White House, and her controversial tenure as Dean of Harvard Law School, it is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment.
Given this record, and the fact that Ms. Kagan has such sparse legal experience, I am concerned about whether Ms. Kagan will suddenly be able to set aside the political agenda that has defined such a large portion of her career."
Read the entire release here.
While an op-ed in The New York Times argues that these documents show Kagan to be an "adept centrist — much like her old boss — who tried to remain thoughtful while shielding President Bill Clinton from ideological extremes."
However, it is important to keep in mind that Kagan served at the pleasure of the President and was therefore tasked with implementing the administration's positions, not her own. Thus, it's no surprise that these documents show her taking moderate stances on many issues, similar to the position of her boss. She was following orders. Moreover, it is telling that her liberal agenda at times got the best of her, despite her boss' centrist views on many issues. Recently released documents revealed that Kagan led the charge against a bill that would limit partial-birth abortion.
Despite the fact that a leader with the American Medical Association wrote in 1997 "we all agree" that partial-birth abortion "is not good medicine," and an expert panel from the American College of Obstetricians and Gynecologists could not find any situation under which partial-birth abortion was the only method able to save a woman's life or health. The Weekly Standard reported:
Kagan ignored the medical experts and asserted that doctors should nonetheless be able to perform abortions on mostly-delivered infants:
"Given the state of medical evidence on this subject, an exception for women who need the procedure to prevent serious harm is appropriate. Such an exception would enable the attending doctor -- the person with the most relevant knowledge -- to make the complex decision whether the procedure is in fact medically necessary in a given set of circumstances."
We can agree with The New York Times op-ed on one point: "We hope that other documents to emerge in the weeks to come, and her confirmation hearings starting this month, will help fill in the many blanks about the nature of a future Justice Kagan." An estimated 80,000 documents remain to be released, which is still an extraordinary amount of material to be sifted through in order to properly vet a nominee to our highest court. As Curt Levey of Committee for Justice explained in a release on Friday:
Because Kagan lacks a judicial record and has produced little in the way of scholarly writing, she bears 'the burden of proof' in demonstrating that she is fit for the nation's highest court, as Sen. Kyl noted this week. Allowing time for a thorough review of the Library documents is a necessary part of meeting that burden.