Solicitor General Kagan should face no serious obstacle to her confirmation to the Supreme Court –provided that all the papers concerning her time in the White House are produced and they contain no extraordinary lapses of judgment or absurd claims about the president’s constitutional powers. Kagan could even have suggested novel assertions of privilege or innovate arguments concerning existing privilege, and that would simply be a lawyer doing her job for the president.
But claiming privilege and refusing to release the papers presents a major problem for the nomination. The Obama White House has already repeatedly reneged on its promise of transparency, and a bogus claim of privilege will lead many to conclude they are hiding damaging information when in fact they are probably just sitting on material that is embarrassing to former President Clinton, not the SG.
Whatever is in the papers, they ought to be released. It is a lifetime appointment and these papers are central to understanding the SG’s qualifications to assume the position of Associate Justice. Chief Justice Roberts had also served as an Associate Counsel n the White House when he was nominated to SCOTUS. Had any of his papers been withheld, much less papers touching on a central issue of the reagan presidency –say Iran-Contra– his nomination would never have moved forward.
The Senate GOP should move to issue a letter announcing it will not allow the nomination to reach the floor unless and until all papers have been released. the sooner such a letter issues the quicker this charade can end and the hearings and vote proceed.