Documents show Kagan a political pragmatist

[June 12, 2010]  WASHINGTON (AP) -- Newly released documents from the Clinton White House provide glimpses into how Supreme Court nominee Elena Kagan approached a number of controversial issues, including abortion, assisted suicide, religious freedom and strategies to defend the president in scandals that later led to his impeachment.

And while the papers demonstrate that Kagan shared the president's liberal views, they also reveal her to be a politically aware pragmatist who often ran interference for her boss as he tried to maneuver a middle course between liberal allies and conservative foes.

A new Washington Post-ABC poll found that six in 10 Americans believe the Senate should vote to confirm Kagan's nomination, but most also want her to answer questions about how she would have decided past cases and to reveal her stand on legal abortion. About a quarter, 24 percent, of the people surveyed oppose Kagan.

The 40,000 pages of papers released Friday by the William J. Clinton Presidential Library include a memo that provides insight into how Kagan, then a White House lawyer, dealt with the politically charged issue of abortion, specifically a procedure critics call "partial birth" abortion.

Kagan conceded in the memo that it would be unconstitutional to prohibit the procedure outright, but she argued an exception could be made for cases in which it was needed to avert "serious adverse health consequences" for the mother -- and she recommended legislative wording for such an exemption.

One of the virtues of her proposal was that "it will not make the groups" -- presumably abortion rights groups -- "go crazy ... because it fully protects the right of the woman to any medically necessary procedures," she wrote.

The Republican-led Congress approved a ban on the procedure in late 1995, and Kagan's memo was from early 1996, a few months before Clinton vetoed the measure. In his veto message to Congress, which the files indicate Kagan helped draft, Clinton said he was acting because there was no exception for a mother's health.

Clinton's library is working on all 160,000 pages of documents related to Kagan's White House tenure requested by the Senate Judiciary Committee, which is set to begin hearings on her nomination June 28. With Friday's release, all the paper documents have been produced. Still to come are some 80,000 pages of e-mails -- 11,000 pages of which were written by Kagan.

Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, said the information was not being released fast enough. Still, he said, from information senators have so far "it is clear that Ms. Kagan has demonstrated both strong liberal views and a willingness to substitute those views for sound legal judgment."

Sen. Patrick Leahy, D-Vt., the panel's chairman, said: "The documents released today show Elena Kagan to be a brilliant lawyer, advising President Clinton on a variety of complex issues."

The documents, most of which were dated in 1995-96 when Kagan was associate White House counsel, show that Kagan had reservations about a federal law banning assisted suicide and that in other cases, she took a broad view of religious freedom. They also reveal her involvement in defending Clinton from scandals that dogged his presidency, including the sexual scandal that led to his impeachment.

In one case likely to be cited by her allies as evidence that she's no liberal, Kagan criticized a California court for rejecting a landlady's claim that a state anti-discrimination law violated her religious freedom. In a 1996 memo, Kagan suggested the Supreme Court should side with the landlady, who refused to rent to unmarried couples based on her belief that sex outside of marriage was wrong.

Kagan helped draft an executive order detailing federal employees' rights to express their religion in the workplace.

Still, the files contain plenty of evidence that Kagan shared Clinton's more liberal views.

In a May 1998 memo from her time as a policy aide, Kagan was among those who warned Clinton about Republican efforts to weaken a ban on assault weapons and urged the administration "beat back" an effort to water it down.

In a July 1997 memo to Clinton on drug-sentencing guidelines, Kagan counseled a middle-ground policy to sharply reduce the disparity between crack and powder cocaine sentences.

She also was deeply involved in the administration's efforts to overhaul the laws governing how political money is raised and spent. When the Justice Department had concern about two White House proposals, Kagan took on the job of dissuading Justice from publicizing its doubts, because disclosure might embarrass Clinton.

The library held back many of Kagan's memos and notes about the Paula Jones sexual harassment case, dating to when Clinton was Arkansas governor. However the material was turned over to the Senate panel on a "committee confidential" basis.

But it's clear from records made public that Kagan had a hand in defending the president in the Jones case. In 1996, she forwarded colleagues a brief written by then-Solicitor General Walter Dellinger supporting Clinton's bid to postpone the civil trial until after he had left office.

Kagan also helped oversee the gathering of subpoenaed documents at a crucial point in the Whitewater investigation.

[Associated Press; By JULIE HIRSCHFELD DAVIS]

Associated Press writers Jim Abrams, Jim Drinkard, Ben Evans, Sam Hananel, Jesse J. Holland, Henry Jackson, Lauie Kellman, Andrew Miga, Stephen Ohlemacher, Ann Sanner, Mark Sherman, Sharon Theimer and Pete Yost contributed to this report.

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