Friday, May 14, 2010

Following Elena Kagan's paper trail

Hugh Hewitt, who once served in the White House counsel's office, explains that, contrary to the popular conception that Elena Kagan has a very brief paper trail, she has actually written quite a bit about important issues. And, following the precedent that the Democrats set during the hearings for John Roberts, those papers should be released to the Senate Judiciary Committee before her confirmation hearings.
Despite the near constant repition by MSM to the contrary, the Solicitor General does have a "paper trail," but it is mostly on the shelves of the Clinton Library. Associate Counsels to the president and Assistants to the President for Domestic Policy write and send many memos, and at least when I was in the Counsel's Office, many of the lawyers offer their own opinions on the constitutional merits of laws sent for the president's signature and will also suggest and draft signing statements.

More than a few controversial statutes raising constitutional issues came through the White House while SG Kagan was in the Counsel's office and on which she may have opined, including welfare reform and DOMA. Similarly she must have had many opinions on the various second term initiatives pursued by President Clinton, opinions on the impeachment proceedings and various defenses and privileges offered up by the White House in those years, and perhaps as a senior and trusted aid, even opinions and memos on such extraordinary assertions of executive power as the decision to bomb Serbia without prior Congressional authorization.
There may well be nothing in those papers that would disqualify her from the bench, but shouldn't the Senators want to know the legal approach that she took in advising the Clinton administration on the legal side of those issues? Especially since President Obama has told us that her personal passion is one of the reasons he chose her?

Byron York has more about the sorts of questions that may be answered if those papers are released.
"There is now a precedent that a White House lawyer's materials will be produced," says Bradford Berenson, an associate counsel in the Bush White House. "I think it will be very difficult for the Obama administration, given everything they've said about transparency and openness, to withhold these documents."

That applies even to cases in which the Clinton White House claimed executive privilege. For example, in 1996, Kagan was involved in a controversy in which the Clinton administration was accused of siding with a group of radical environmentalists locked in a standoff with federal agents in Oregon. Officials at the U.S. Forest Service suspected that a staffer at the White House Council on Environmental Quality tipped off the protesters about a coming federal crackdown.

The situation drew the attention of Republicans on the House Committee on Natural Resources, who found that Kagan, in the White House Counsel's Office, did little, if anything, to find or punish the leaker, even though that person had revealed confidential information that potentially endangered the lives of Forest Service agents. GOP investigators asked for Kagan's notes on the matter at the time, but the White House refused, claiming executive privilege.
Democrats like Patrick Leahy, the present chairman of the Senate Judiciary Committee insisted that they couldn't go forward without seeing such documents from John Roberts. Given how much less is known publicly about Kagan's positions given her lack of academic writings or arguments in court, shouldn't we know what she was writing 15 years ago if it was imperative to know what John Roberts had said 20 years before his nomination to the Supreme Court?

Or is this yet another incident of "Do as we say, not what we do" for the Democrats?