Bench Memos

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The Kagan Rush to Judgment


The Senate hearing for Supreme Court nominee Elena Kagan starts on Monday, June 28. Sen. Patrick Leahy (D-VT), the chairman of the Senate Judiciary Committee, has refused Republican requests to delay the hearing. The Republicans have a very good and justified reason for that request — the huge number of documents that they have just been inundated with, a volume of material so large that it will be virtually impossible for the Senators and their staff to give it any meaningful review prior to the hearing. But then, that may be the very reason that Sen. Leahy has refused to reschedule Kagan’s hearing.

As we all know, Elena Kagan has never been a judge, so she has not written any judicial opinions that can be reviewed. Kagan’s academic writings are extremely sparse, so there is not a lot there that would give a comprehensive picture of her legal views and ideology, although what little there is seems disturbing. She barely practiced law as a private lawyer. She never appeared in any appellate courtroom prior to her first argument before the Supreme Court last year as the solicitor general of the United States, so she wrote almost no briefs, including amicus briefs, that can be reviewed.

But there is one very significant source of Kagan legal memoranda and opinions: her time as a deputy counsel in the White House and on the domestic policy staff during the Clinton administration. On June 4, only a little more than three weeks before the June 28 hearing, the Clinton Presidential Library produced 46,000 pages of these documents — including 260 pages produced under the Judiciary Committee’s “confidential” designation, which means they are withheld from the public. The Library refused to produce 20 pages based on personal privacy considerations. 

On June 11, only two weeks before the hearing, the Clinton Library produced 44,000 more pages, including 1,300 with the “confidential” designation. The Library withheld 600 pages. In its third production on June 18, only ten days before the hearing, the Library produced another 79,000 pages (approximately 77,000 e-mails and attachments and 1,700 additional documents from a preservation file). Not surprisingly, 860 of these pages were designated as “confidential” and 1,000 pages were withheld entirely from the committee. The Department of Defense also produced 850 pages on June 18. However, the Clinton Library has failed to turn over tens of thousands of e-mails that referenced Kagan, providing instead only emails that were sent or received by her.

No independent party has reviewed the withheld documents to examine the validity of the privileges being asserted by the Clinton Library. So we are just supposed to trust that they are being withheld based on a real privilege and not because they are embarrassing to Kagan or reveal something that could jeopardize her confirmation. Of course, Democrats successfully filibustered Miguel Estrada over the Bush administration’s refusal to release internal solicitor general memoranda that the administration claimed were privileged. Liberals made the same demands over Chief Justice Roberts’ nomination, arguing that the refusal of the Justice Department to turn over some internal memoranda “creates the impression that there is something to hide,” at least according to Nan Aron of the Alliance for Justice. A lawyer for the Sierra Club speculated that the refusal raised the possibility that Roberts made statements in the documents that were “so outrageous that they’d persuade even a Republican-dominated Senate to reject him.”

Was it a coincidence that almost all of the 170,000 pages were produced on Fridays, when senators and their staff would lose another two days of review unless they worked all weekend? That is very hard to believe. It seems like a deliberate attempt to make it as difficult as possible for Kagan’s internal legal memoranda to be reviewed in any depth. In fact, the late production of these documents, the withholding of over 1,600 pages, and the refusal of Leahy and his Democratic cohorts to put off Kagan’s hearing seem intended to prevent the Republicans from being able to review and read in depth all of the legal opinions and other documents and communications that Kagan produced when she worked as a political lawyer for President Clinton.

The director of the Clinton Library, Terry Garner, admitted that it would be “very difficult” to review Kagan’s documents prior to the hearing date because, “There are just too many things here. . . . These are legal documents and they are presidential records, and they have to be read by an archivist and . . . read line by line.” As Debbie O’Malley of the Heritage Foundation has pointed out, if the Clinton Library is saying that even five weeks is not enough time to go through all of these documents, then senators need “adequate time to actually review them, before they go forward with a hearing or votes.”

There is a clear express-train rush to judgment going on here with Patrick Leahy in the role of the locomotive engineer. The Democrats would be extremely upset if the roles were reversed, as they proved in prior Republican nominations. If Sen. Leahy were the ranking minority member of the Senate Judiciary Committee, he would be objecting very loudly (with good reason) about the unfairness and the injustice of this situation. But he does not seem to mind imposing such a schedule on his minority colleagues — a true sign of the partisan hypocrisy that all too often is displayed in Congress to the detriment of the interests of the public.

At the age of 50, Elena Kagan could be on the Supreme Court for the next three to four decades if she is confirmed. The determination of whether she has the right temperament, legal background, character, and experience to be confirmed by the Senate, and whether she believes that a judge’s role is to adhere to the rule of law and the Constitution, is not a determination that should be rushed. Yet that is exactly what is happening. It is a disservice to the American people and a betrayal of the “advice and consent” role of the U.S. Senate. 

Hans A. von Spakovsky is a Senior Legal Fellow at the Heritage Foundation


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