Kagan Nomination Debate Is A Necessity, Not An Option

Republicans are still trying to get their hands on documents from Elena Kagan’s past that could lend some insight into what her judicial philosophy may look like if confirmed as the next justice of the Supreme Court. In addition to seeking the more than 168,000 currently in the possession of the Clinton library, Sen. Jeff Sessions (Ala.), top Republican on the Senate Judiciary Committee, has now requested records from the Department of Defense related to Kagan’s efforts to ban military recruiters at Harvard Law School while she served as dean.  According to The Hill,

 “She gave big law firms full access to recruit bright young associates, but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers as they risked their lives for our country,” said Sessions. “It was an unjustifiable decision,” he said.

Sessions is also now requesting documents relating to Kagan’s stint as solicitor general in the Obama administration and reminding Democrats that they “filibustered the nomination of Miguel Estrada, a nominee to the U.S. Court of Appeals for the District of Columbia, because George W. Bush’s administration refused to turn over papers from the solicitor general’s office. “

This week the National Archives is hoping to release the first batch of documents from Kagan’s years in the Clinton White House; however, the road ahead may still be bumpy.  The Daily Caller reported that “ [i]n a carefully worded letter to top Judiciary Committee Republican Sen. Jeff Sessions, the Obama administration says it might withhold some of the memos Supreme Court nominee Elena Kagan wrote when she served in the Clinton White House.”

“President Obama does not intend to assert executive privilege over any of the documents requested by the [Judiciary] Committee,” the June 1 letter from White House counsel Bob Bauer says. “Of course, President Clinton also has an interest in these records, and his representative is reviewing them now.”

The Hill reported that a GOP aide suggested, however, that this letter only further aggravates Republican concerns by indicating that neither President Clinton nor President Obama has actually waived executive privilege.

 They argue that Obama has not waived executive privilege but merely announced the intention of doing so, giving him flexibility to invoke the privilege at a later time depending on case-by-case determination.

Republicans also argue that Obama could override Clinton’s claims to confidentiality because of an executive order he signed in 2009 giving him power to waive privilege for documents from previous administrations.

While many acknowledge that the current Supreme Court nomination “battle” seems to be lacking in enthusiasm – as the New York Times put it:  “Something has been missing from the fight over the Supreme Court nomination of Elena Kagan:  the fight” – the longer it takes for these documents to be released, the more high-wattage the debate may become.

If there is a fight brewing over Ms. Kagan at all, it seems to be over the records. Mr. Sessions has been pressing hard for them, and warned in the interview that Republicans might use the filibuster to block Ms. Kagan’s confirmation if all the documents are not released in enough time for senators to review them before the start of the hearings, now scheduled to begin June 28.

“We would not like to filibuster,” he said, “but I would say a failure to produce documents and actions in that vein could lead to more tension than some people might expect.”

Ed Whelan, President of the Ethics and Public Policy Center, in a National Review Online Bench Memo put succinctly why a comprehensive review of the documents is crucial prior to the commencement of the nomination hearings:

Indeed, Kagan may have less experience that bears on the work of a justice than any entering justice in the last five decades or more. Beyond zero judicial experience, she has only a few years of real-world legal experience. She had never argued in any court before becoming solicitor general last year. And during her entire career in academia, she has written only a handful of scholarly articles. […]

Because so little is known about Kagan's legal and policy views, and because what little is known suggests that she may well indulge her sense of empathy in making legal judgments, it is especially important that the Senate conduct a thorough examination of her views.

He concluded: 

With 59 Democrats in the Senate, Elena Kagan is a sure bet to be confirmed this summer. That doesn't make the inquiry into, and debate over, her judicial philosophy unimportant. It even means that she is especially well positioned to improve the confirmation process -- along the line that she's advocated -- by committing to provide the Senate a meaningful discussion of her legal views.