There’s a wild card in the Supreme Court nomination and confirmation process for any candidate who has served in the executive branch—namely, whether the anticipated disclosure of memos and e-mails relating to the candidate’s executive-branch service would jeopardize the candidate’s nomination in the first place, or, alternatively, whether the actual disclosure of such records would complicate the candidate’s confirmation.
I hope to address this matter more comprehensively later. For now, let me offer as one illustration of the wild card Elena Kagan’s alleged role in the Warner Creek matter.
Let me state at the outset that the allegations of wrongdoing by Kagan that I’m going to summarize at a high level of generality strike me as highly speculative. But it’s precisely because their merits rest in part on executive-branch documents that were withheld on grounds of executive privilege that they nicely illustrate the wild-card factor I’m discussing.
The Warner Creek matter involved a House task force investigation into concerns that in 1996 environmental protesters occupying federal land in Oregon in order to block sale of a timber site received illegal leaks from the Clinton administration about Forest Service plans to expel them and that these leaks thwarted the plans and imperiled the lives and safety of Forest Service personnel. A July 1999 interim report of the House task force contends that Kagan, who was working in the White House at the time of the leaks, took improper measures to protect the suspected leaker. In response to a subpoena, the White House asserted that Kagan’s notes outlining her contemporaneous discussions with the suspected leaker were protected by executive privilege. The White House also vigorously disputed the allegations against Kagan.
If President Obama nominates Kagan to a Supreme Court vacancy, Kagan’s notes related to the Warner Creek matter would presumably be among the broad set of executive-branch records on Kagan from her Clinton White House days that the White House makes available. (I doubt that executive privilege would be asserted with respect to these notes after the passage of so many years.) The White House and DOJ staffers involved in vetting Kagan must surely be reviewing these records to see what surprises, if any, they contain.
By the way, a Senate Judiciary Committee staffer informs me that the committee learned of the Warner Creek allegations very late in Kagan’s confirmation process for Solicitor General (in part because the task force report misspells her name as “Kagen”) and that senators who were interested in examining the allegations weren’t able to do so.