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Newsweek’s Howard Fineman on Elena Kagan’s prospects

Tuesday, May 11, 2010

HH: Joined now by Howard Fineman of Newsweek. You see him on MSNBC. He’s also the author of 13 American Arguments, a fine, fine book now out in paperback. Howard and I did a panel at last year’s Los Angeles Festival of Books. I didn’t go this year. Howard, did you go to the L.A. Festival of Books this year?

HF: No, I didn’t. I didn’t. But that was a fun event.

HH: That was a great panel. It’s a great book. It’s a wonderful book, and I hope they’re spreading it out among colleges and high schools as a way of making government interesting.

HF: Thank you so much. I think there are some. Yeah, I think there are a number of them, and so I am very gratified by that. Thank you.

HH: Howard, we’re about to have an argument over whether or not Elena Kagan ought to be the next Supreme Court justice.

HF: Yes.

HH: I personally believe she is very well-qualified, as only solicitor generals are, the tenth justice. She’s very smart. My old pals from the Clinton White House tell me she’s a wonderful person. But I think there is going to be a battle here anyway unless the Clinton White House people come up with the papers that she was a part of when she was in the Counsel’s Office and domestic policy advisor. Going back to those years, and of course you were in D.C. during those years, she was a pretty prominent player in the Clinton White House.

HF: Yes, she was, and I think her role in the Clinton White House in those times was to supply the excellent and very detailed legal analyses that they would need to allow Bill Clinton to maneuver around to try to get himself reelected. She was very smart, but also very political, very politically astute, and I think always looking for ways to implement, to use Constitutional arguments to get Bill Clinton and his political advisors where they wanted to go.

HH: Now Howard, I’m trying to remember the issues which may come up, because of course none of this has been released yet. One would be obviously welfare reform and the Constitutionality of cutting in-place benefits. Another would be the Defense Of Marriage Act. She had to have weighed in on the Constitutionality of that. But I don’t know if she was in the Counsel’s Office when the Kosovo bombing occurred. In fact, I’m pretty sure she wasn’t, but she may have weighed in on that. Has this begun to bubble up yet in terms of the specificity of the controversies in which she was involved?

HF: It’s just beginning. I think it’s going to take a while, but you know, you raise an interesting group of issues there, because she was around during the time when Bill Clinton, to oversimplify slightly, was tacking to the right.

HH: Yes.

HF: And in an effort to get himself reelected after the Democrats were unseated in the House by Newt Gingrich in ’94. From ’94 to ’96, you remember, there were 100,000 cops and welfare reform, and all kinds of other things…

HH: And DOMA, Defense Of Marriage Act is there.

HF: Yes, that Bill Clinton was doing, to run for reelection. And her role was to be the very, very sharp person there to help Bruce Reid, who was kind of, you know, the DLC type moderate Democrat in the policy shop, and Rahm Emanuel, who was there working the campaign end, and Mark Penn, who was considered the more conservative of the president’s pollsters and political advisors. And Kagan was the person who was providing the legal justifications for a lot of that stuff, which is one reason why some of the people on the left in the Democratic Party are not particularly happy with her nomination.

HH: Let’s imagine for a moment that there is, when I was in the White House Counsel’s Office, every piece of legislation that the president had to sign had to go through the Counsel’s Office first to have an analysis prepared, and perhaps a signing statement drafted for the president, and that’s in the Reagan years. I assume they did the same thing in the Clinton years.

HF: Yup, yup.

HH: So there may be a memo running around on, say, the Defense Of Marriage Act, which is just a horrible thing in the eyes of the left that her name may be on. Do you think we’ll ever see those memos, Howard Fineman?

HF: Maybe. I think maybe we will, because I think a lot of them should be somewhere down in the Clinton Library, if nowhere else, and I don’t think most of them would be covered by some kind of national security exception. And they may well be there. And I think that’s going to be very interesting. And Barack Obama is a pretty smart guy, because he’s nominated somebody who’s got, whatever paper trail she has, is for tactical reasons. I don’t believe for a minute Elena Kagan necessarily agreed with all that stuff. It was her job in the Counsel’s Office, and I think she takes a very traditional view of the role of a lawyer working for their client, is to advance the arguments for that client. Ironically, her paper trail, such as it is, is going to make the left as mad, or more angry than the right, perhaps. It’s her whole life story, where she comes from, what kinds of jobs he’s had or not had, and her role in academia, you know, all that kind of stuff, that you can question, that I think the right will question.

HH: Yeah, I’m on the faculty of a law school for fifteen years, and I know what deans do, and that she has received glowing accolades from Charles Fried, solicitor general under Ronald Reagan, and other conservatives tell me that she’s going to have a fine time in front of the Committee, absent something coming out in the hidden paper trail. There’s a large paper trail here that causes controversy on the left, like a DOMA, like a Kosovo bombing thing. Now she’s domestic policy advisor, and I don’t know the answer to this. Do you think they went back to her once she had graduated from associate counsel to head of domestic policy in the Clinton White House for advice on legal issues outside of the domestic policy area, Howard Fineman?

HF: I don’t know the answer to that. I don’t know the answer to that. I think it’s quite possible, just because she was so well regarded for her intellect, and her diligence, and her attention to detail. It seems to me it would be practically malpractice inside the White House at that time not to get her working on everything, and I think she was very ambitious. She wanted as much face time with the president as she gets. You know, that’s the game inside the White House, as you know. And so it’s possible. You know, it’s funny, all this notwithstanding, and I could be wrong about this, but I still think a lot of Republicans are going to look for reasons to find a way to oppose her, just because, not because of this part of her paper trail, but because of the whole notion that she’s going to be there trying to do Barack Obama’s bidding, and that they had to be very careful with Sotomayor, because Obama was more popular a year ago, it was all before the Tea Party stuff. I, my sense of it, and again, I could be wrong, as all of what we’re talking about notwithstanding, I still think most of the Republicans are going to look for a reason to see if there’s some way they could oppose her.

HH: Yeah, I think a lot of them will vote against her, but the issue of a filibuster, which…

HF: Oh, no, that’s not going to happen.

HH: That’s not going to happen unless the White House documents aren’t provided. I could see a procedural argument that you can’t ask us to advise and consent unless we get to see the written record, you’re not showing us the written record, therefore we’re not going to vote on this nominee until you do. And that’s why I expect, that…only a procedural argument or a character issue, which I can’t imagine coming up. She’s just too smart, too careful over too many years to have that sort of submarine…

HF: Well, it’s really remarkable, Hugh, because she is the ultimate un-Bork.

HH: Yup.

HF: In other words, she is the, if I could use a fancy Latin term, she is the reductio ad absurdum. She is the reducing it to the almost absurd level of how everybody who wants to be on the Court has reacted over a generation to the spectacle of what happened to Robert Bork in 1986.

HH: Yeah, don’t write anything, and if you write something, make sure they have presidential privilege stamped all over it, Howard Fineman.

HF: That’s right.

HH: So if you have to make a prediction, you think this gets done this summer?

HF: Oh, yeah. I think it will. As I say, I think most, maybe five or six Republicans will vote for her. I think probably not more than that. But there will be no filibuster, and she’ll be approved.

HH: All right, we’ll see what the White House does with those papers. Howard Fineman of Newsweek, author of 13 American Arguments, always a pleasure, Howard, to talk to you.

End of interview.

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