Kagan unscathed after documents emerge, but questions remain about judicial approach

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Kagan unscathed after revelations from past

WASHINGTON — Tens of thousands of pages worth of documents from Elena Kagan’s past have left President Barack Obama’s Supreme Court nominee relatively unscathed and important details about her still a mystery heading into confirmation hearings for a lifetime job as a justice.

Documents from Kagan’s service in the Clinton White House, including her own e-mails as a policy aide and lawyer, reinforce the portrait that’s emerged in recent weeks: a politically savvy, sometimes hard-edged strategist whose views of the Constitution are at odds with those of conservatives.

In a 1997 e-mail about former Justice Thurgood Marshall, Kagan wrote admiringly of her legal mentor’s view of the Constitution as a “living charter” and his concern as a justice for “the underdog.”

It’s not surprising language coming from a Democratic president’s nominee. It’s also probably going to underscore the Republicans’ line of argument that she will be a liberal activist from the bench.

From the records, there is scant evidence about what kind of justice Kagan would be. Supporters suggest she can serve as a consensus-builder among deeply divided conservatives and liberals on the nine-member court.

In addition, newly released records from the Defense Department that detail her dispute with the Pentagon on military recruiters’ access to the campus of Harvard Law School, where she was dean, appear to contain little ammunition for GOP critics.

These documents show that long before Kagan decided to bar recruiters from the campus career services office because of the military’s policy against openly gay soldiers, at least one Pentagon official said the approach gave recruiters access that matched that of other prospective employers at the law school.

“Thank you for providing our military recruiters a degree of access to students that is equal in quality and scope to that afforded to other employers,” an Army judge advocate recruiter wrote in 1998 to Kagan’s predecessor, who set the policy she would later use.

The Obama White House has worked to ensure that no revelation from the documents harms Kagan’s chances. Working with former President Bill Clinton, officials shielded from public view most details about Kagan’s work on the scandals that in many ways defined his tenure. That includes her role defending him from the Paula Jones sexual harassment lawsuit that led to his impeachment.

In all, nearly 160,000 pages were unearthed, including 80,000 pages of e-mail — an unprecedented release for a Supreme Court nominee. They were dribbled out on Friday afternoons, the customary time in official Washington for releasing unfavorable information or material one hopes attracts little notice. The e-mails emerged late Friday afternoon; the Pentagon documents on Saturday.

Conservative activists say that’s no accident.

The Clinton-era documents portray Kagan as a “political operative … with disdain for the Second Amendment and the NRA (National Rifle Association), concern for currying favor with gay and lesbian groups, and support for judges who will decide cases by giving an edge to ‘the underdog’ and interpreting the Constitution as a ‘living,’ malleable document,” said Carrie Severino of the Judicial Crisis Network.

The timing, she added, “represents the Obama administration’s best political maneuver to hide any information revealed about the president’s Supreme Court nominee in the Saturday papers.”

But the revelations are fairly thin.

The files say more about Kagan as a person and political operator than about what kind of jurisprudence she might practice. She comes across as a sharp intellect and somewhat territorial; highly opinionated but eager to facilitate consensus; with little tolerance for lofty rhetoric and a playful, dry wit.

In a 1997 e-mail to her boss at Clinton’s Domestic Policy Council, Kagan seemed to acknowledge her willingness to throw elbows in a White House full of overachievers. “I’ll be as insistent as I know how to be (which, as you know, … ),” she wrote Bruce Reed.

To a colleague passing along request from the Women’s Office to see a copy of a directive she was drafting, Kagan responded simply but emphatically: “NOOOOOO.”

Kagan wasn’t afraid to challenge leading members of the administration when she felt strongly about something or her political instincts told her they were doing the wrong things.

In a 1999 e-mail, she called herself one of the Clinton White House’s biggest fans of a law to protect religious freedom, but warned then-Vice President Al Gore against endorsing it for fear of creating “a gay/lesbian firestorm.” She told his chief of staff, Ron Klain — who now holds the same job for Vice President Joe Biden — that aides were meeting with religious and gay groups to try to smooth over their differences on the matter.

“We’ll let you know as soon as it’s safe to go back in the water,” she wrote.

The previous year, she counseled against having Hillary Rodham Clinton announce new policies or promises in a speech about race.

“I’m generally not in favor of the FLOTUS announcing policy unless it’s in one of her areas (e.g., child care),” Kagan responded, using the White House shorthand for first lady of the United States. “I’d go for a promising practice instead.”

But Kagan was more than willing to reach for more responsibility in Clinton’s White House, particularly in policy areas she was passionate about. Affirmative action and campaign finance were two, according to a 1995 e-mail.

In a note to Abner Mikva, a White House counsel under Clinton, Kagan lobbied to be put in charge of affirmative action, given that presidential race adviser Chris Edley was leaving.

“Is there a need for someone to keep on top of the affirmative action issue — for example, by working with Justice on its review of all affirmative action programs? I know the issue well (because I teach it) and care about it a lot; if there’s stuff to do here, I’d love to do it.”