Documents Show Kagan's Pragmatic Streak
ROBERT SIEGEL, host:
Also in Little Rock today, the Clinton Presidential Library released some 40,000 pages of documents from the 1997 and 1998 files of then-White House aide Elena Kagan. This is the first of three document dumps expected before Kagan's Supreme Court confirmation hearing starts at the end of the month.
NPR legal affairs correspondent Nina Totenberg joins us now to talk about what's in those documents.
And, Nina, is there anything in here that should worry Kagan or worry the Obama administration?
NINA TOTENBERG: Well, as far as I can tell, there's no Holy Grail - at least so far. My colleagues here at NPR and I have been poring over this stuff all afternoon. It looks tantalizing, Robert, in the headings: abortion, assisted suicide, assault weapons, stem cells, race, affirmative action - all the hot-button stuff.
But most of these 40,000-plus pages consist of material sent to Kagan or to other people and copied to Kagan. So it's hard to find her imprint on most of it.
SIEGEL: But there must be some clues here as to who Kagan is and how she thinks.
TOTENBERG: Well, there's a little but not a lot. So, for instance, in a major affirmative action case involving layoffs, Kagan gets a memo from the Justice Department recommending that the administration take the position in the Supreme Court that in this case, laying off a white teacher based solely on her race, in order to promote diversity in one department, is not justified.
And Kagan writes in the margin: I think this is exactly the right position - as a legal matter, as a policy matter and as a political matter.
And that's one of the few notations, though, in which we see her own views clearly enunciated. And even then, the view that she's expressing is indicative of the pragmatic approach and the political approach that she takes.
SIEGEL: What about some other hot-button issues - abortion, for example?
TOTENBERG: Well, some of those memos have already been disclosed, and they show her in this area trying to work out a partial-birth abortion compromise so that President Clinton would not have to - for a second time - veto a ban on these procedures. Mr. Clinton had previously vetoed the ban because it didn't provide an exception to protect the health of the woman. And Kagan is working with Democrats in Congress to craft language that would define health more precisely so that it wouldn't be too broad an exception.
SIEGEL: And that's what's documented in these papers.
TOTENBERG: That's what's documented in the papers.
SIEGEL: And now, the National Rifle Association had never given a Supreme Court nominee a score until the Sotomayor nomination, and it did that only after it was really asked to do so by the Senate Republican leadership. What about Kagan's record on guns?
TOTENBERG: Well, there's probably enough in these documents to provide ammunition to the gun lobby. The Clinton administration was strongly supporting a ban on assault rifles and was strongly defending the Brady gun control law, while the NRA was opposing both.
At one point, in a handwritten note, Kagan takes a mild swipe at the NRA's opposition to criminal background checks under the Brady law. And she says: The NRA first proposed the mandatory background check - exclamation point.
SIEGEL: Now, generally on criminal law, does she come across as looking very tough law-and-order character, weak, somewhere in between?
TOTENBERG: She's more of a tough guy. For example, she says in one notation that she agrees with a lower court decision - later upheld by the Supreme Court - that police don't have to knock before entering a home to look for weapons.
And in another note, she seems to like the idea of proposing a federal law that would put sexual predators on probation for life.
SIEGEL: So, this document dump is the first of three, and one assumes that we'll get some more revealing documents in the next couple of weeks. How do you think she'll handle the questions about these?
TOTENBERG: Well, Robert, I'm going to play for you a little excerpt from Chief Justice Roberts' confirmation hearing when he was asked about memos that he wrote - which were far more revelatory and personally expressive than anything we've seen so far from Elena Kagan.
Here's Roberts being pressed about memoranda he wrote, in which he argued against the Reagan administration bringing a number of different sex discrimination lawsuits.
Chief Justice JOHN ROBERTS (U.S. Supreme Court): I was a staff lawyer. I didn't have a position. The administration had a position.
TOTENBERG: So you can probably expect much of the same from Kagan: My job was to facilitate the president's agenda, not my own. I didn't have a position.
SIEGEL: It was a memo; I didn't know it was loaded.
(Soundbite of laughter)
SIEGEL: Thank you, Nina.
TOTENBERG: Thank you.
SIEGEL: NPR legal affairs correspondent Nina Totenberg.
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MICHELE NORRIS, host:
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