The director of the Clinton presidential library says that it would be “very difficult” to process Elena Kagan’s 160,000 pages of White House records in advance of Senator Leahy’s intended June 28 start date for Kagan’s confirmation hearings:
“There are just too many things here,” she said. “These are legal documents and they are presidential records, and they have to be read by an archivist and vetted for any legal restrictions. And they have to be read line by line.”
Let’s put things in broader context:
1. The White House had ample reason to believe since last September that Justice Stevens would retire.
2. On March 5, 2010, the White House contacted Kagan to “inform [her] that President Obama wished to consider [her] for a possible Supreme Court vacancy.” (Kagan’s Senate questionnaire response, Q25.)
3. Even after Stevens announced his retirement on April 9, President Obama took a full month—until May 10—to select Kagan.
4. On May 15, the White House requested that the Clinton presidential library expedite release of Kagan’s records. White House counsel Bob Bauer acknowledged that “their availability, on an expedited schedule is necessary to afford the Senate a reasonable opportunity to evaluate Ms. Kagan’s nomination.”
5. Yesterday, in evident reckless disregard of the library’s judgment on when it could make Kagan’s records available, Leahy set Kagan’s hearing for June 28.
6. There is no reason to believe that Kagan’s ability, if confirmed, to take part in the Court’s term beginning in October depends on whether her hearing begins on June 28 or on, say, July 28. All that Leahy’s rush is doing is impairing the Senate’s ability to engage in a thorough review of Kagan’s record.
In sum, the White House could have and should have gotten this process going months ago.* Given its own acknowledgment that Kagan’s records are “necessary to afford the Senate a reasonable opportunity to evaluate Ms. Kagan’s nomination,” the White House and Leahy ought to agree on a later start date for the hearing. If they don’t, it’s clear that they are just engaging in a charade.
* The White House could have and should have made requests to the library regarding records of any other contenders (e.g., Diane Wood and Merrick Garland) who served in the Clinton administration. Thus, there would have been nothing about the process that would have required the White House to have decided on Kagan or to disclose any information that wasn’t already publicly known.