White House accentuates the positive, obscures the negative for Supreme Court nominee Kagan

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Choreographing Kagan’s path to confirmation

WASHINGTON — The White House is quietly choreographing every aspect of Elena Kagan’s march toward a lifetime term on the Supreme Court.

From working to dampen the impact of revelations about her stint in the Clinton White House to going out of their way to trumpet praise from conservative backers, members of President Barack Obama’s team are using every available tool to burnish Kagan’s image.

Take the public release of tens of thousands of pages of files from Kagan’s time as an aide to former President Bill Clinton. The Clinton presidential library in Little Rock, working with White House lawyers, has for two weeks in a row made the records available on Friday afternoons, a time when few people are paying attention. That puts stories about the records in Saturday newspapers, when even fewer are reading.

The last installment of those documents — about 11,000 e-mails Kagan wrote and about 70,000 more she received while working in Clinton’s White House — is scheduled to be released on Friday, a little more than a week before the Senate Judiciary Committee is to begin Kagan’s confirmation hearings.

The White House is pressing hard to define Kagan for Americans before her opponents can. A new poll shows the public’s opinion is still highly shapeable.

In the Associated Press-GfK Poll, conducted last week, 63 percent said they haven’t heard enough about Kagan to form a good or bad opinion of her. Still, 43 percent think she should be confirmed and 26 percent say she shouldn’t.

At around this point last year, Justice Sonia Sotomayor had stronger public backing — 50 percent said they favored her confirmation.

But Sotomayor’s nomination also sparked more controversy and drew more attention on and off Capitol Hill. The period since Kagan’s nomination has been dominated by the Gulf oil spill, midterm political news, and continuing economic troubles that have drowned out some of the debate on her fitness for the court.

Obama’s White House has worked to accentuate the non-controversial aspects of Kagan’s background and those that rebut Republican charges that she’s a doctrinaire liberal who would be a rubber stamp for the Democratic president who named her.

His aides let virtually no criticism of Kagan go unanswered, often contacting reporters to counter Republican charges minutes after they’ve been leveled.

Students of the Supreme Court confirmation process say it’s a fact of life for any president these days — regardless of party or place on the ideological spectrum — that nominees must be meticulously stage-managed and their public images tightly controlled.

“The environment is so toxic and so oriented around ‘gotcha’ moments that it would be something approaching malpractice for the White House to do anything else,” said Benjamin Wittes, a Brookings Institution senior fellow who studies Supreme Court confirmations.

Before the Clinton documents were made public, aides quietly pointed out excerpts that reflected Kagan’s painstaking — although ultimately unsuccessful — work in the 1990s to bring Republicans and Democrats together for compromise legislation to regulate tobacco.

They made no mention of what the documents revealed about the role Kagan played on more contentious issues like the drive to enact stricter gun control measures or to resist GOP efforts to place broad limits on abortion rights. On those matters, White House officials said later, Kagan was just doing her boss’ bidding — not revealing her own views. 

Obama’s team also highlighted Kagan’s stance as a White House lawyer in favor of protecting religious expression. They downplayed her involvement in the scandals of the Clinton White House and kept private many of her memos and notes regarding the president’s defense in the Paula Jones sexual harassment suit that touched off his impeachment.

Only the 19 senators on the Judiciary panel and a small cadre of their senior aides got access to those and other sensitive files — more than 1,000 pages worth so far — dubbed “committee confidential” because the public won’t get to see them.

Obama chose the 50-year-old Kagan last month to succeed retiring Justice John Paul Stevens. The former Harvard Law School dean stepped aside from her post as solicitor general to focus on winning confirmation. It’s all but certain that she will be confirmed by a Senate where Democrats have a comfortable majority and Republicans have shown little inclination to mount a filibuster to block her.

Kagan has been spending her days making one-on-one visits to the senators who will vote on her confirmation — always with a small entourage of aides in tow, including Associate White House Counsel Susan Davies, Legislative Affairs aide Christopher Kang, and often one or two other minders from the ranks of Obama’s lawyers and Hill strategists. They’re there to take note of what’s said in preparation for Kagan’s marathon week of hearings later this month, as well as to track her every private utterance to a senator, in case anyone might try to mischaracterize a remark later.

As endorsements of Kagan roll in, Obama’s team times their public release to ensure a steady drumbeat of support for her, and makes sure to highlight conservative backing for a nominee the GOP portrays as reflexively liberal.

That was the case this week when 69 law school deans wrote to the Judiciary panel endorsing Kagan. No prominent conservative signed the letter. But when the White House arranged a conference call for reporters to discuss it, aides recruited Joseph D. Kearney, the conservative dean of Marquette University Law School (who doesn’t as a practice sign group endorsements) to chime in on Kagan’s behalf.

They also invited a conservative Harvard Law School alumna to join other former students last month on a call praising Kagan’s work as dean. Asked repeatedly whether she would back Kagan if she had a vote, the woman, Sarah Isgur, demurred, and a White House aide quickly jumped in to inform her she didn’t need to answer the question.

Isgur got back to reporters later with her response: Kagan is qualified, she e-mailed, and, “Were I a senator, I would vote to confirm her based on that belief.”