Kagan's Consistent Liberal Voice

Last Friday afternoon the first batch of documents from the Clinton Library were released, giving the public the first insights into Elena Kagan’s work for the Clinton White House.

We made a preliminary review of the documents available Friday evening, but here is an update after a few more days of reading through the nearly 47,000 pages. There were some interesting items that were not uncovered in the original rush to review so many boxes of documents.

This underlines the challenges facing senators who are struggling to prepare for a hearing scheduled for Kagan on June 28, while more than two-thirds of the documents have not yet been released.

Overall these documents show Kagan as a consistent liberal on every policy issue, from abortion to gun rights and removing religious language from the public square.

She sided with the big unions, womens’ groups, and NARAL. She also expressed opinions on some major court cases, advocating a broad interpretation of the commerce clause that the Supreme Court said would "obliterate the Constitution’s distinction between national and local authority," and helping pass the McCain-Feingold Campaign Finance Reform Act, parts of which have since been held unconstitutional.

Included are the issues below dealing with fundamental constitutional questions that may come before the court:

1. Second Amendment: In a memo co-signed with Bruce Reed to President Clinton, Elena Kagan stated that "We will give you [President Clinton] a separate memo early this week outlining an aggressive strategy for administration officials and Democratic members of Congress to press for quick passage of our gun control proposals.”

2. Abortion: Kagan helped President Clinton articulate his position against the Hyde Amendment and in favor of federal funding of abortion. She corresponded with the legal director of NARAL regarding trying to slow the progress of passage of the Child Custody Protection Act which would have made it a federal offense to transport a minor across a state line for an abortion to avoid parental consent laws.

On the other side of the issue, Kagan recommended for political reasons that President Clinton sign a partial birth abortion ban with former Sen. Tom Daschle’s amendment for a health exception, despite his own Department of Justice advising him that such a law would be unconstitutional and his administration’s general opposition of the law. Of course the breadth of the term "health" as legally interpreted is sufficient to make any ban on partial birth abortion practically meaningless.


3. Racial preferences:  In two memos Kagan expressed her preference for litigation and policy to preserve affirmative action in higher education and for continuing other "narrowly tailored" affirmative action programs. She also agreed with Solicitor General Walter Dellinger that Title VII of the Civil Rights Act allows non-remedial discrimination in employment decisions, i.e., giving preferences to certain races even if they had not previously suffered discrimination in that position. She called this “exactly the right position—as a legal matter, as a policy matter, and as a political matter.”

4. Religious language: Kagan was asked to clean up a video-taped speech given by the President commemorating the 25th anniversary of Roe v. Wade. She appears to have recommended deleting the "God bless you" salutation at the end of the speech.

5. Commerce Clause: A joint memo from Kagan and Bruce Reed recommended the filing a petition for certiorari challenging the 4th Circuit decision in United States v. Morrison invalidating the Violence Against Women Act under the Commerce Clause. Kagan expressed dismay that the decision would mean that victims would only be able to sue attackers in state courts, using state law. The Supreme Court did take the case, and upheld the 4th Circuit.

Cartoon by Brett Noel