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SG Kagan’s Paper Trail

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Despite the near constant repition by MSM to the contrary, the Solicitor General does have a “paper trail,” but it is mostly on the shelves of the Clinton Library. Associate Counsels to the president and Assistants to the President for Domestic Policy write and send many memos, and at least when I was in the Counsel’s Office, many of the lawyers offer their own opinions on the constitutional merits of laws sent for the president’s signature and will also suggest and draft signing statements.

More than a few controversial statutes raising constitutional issues came through the White House while SG Kagan was in the Counsel’s office and on which she may have opined, including welfare reform and DOMA. Similarly she must have had many opinions on the various second term initiatives pursued by President Clinton, opinions on the impeachment proceedings and various defenses and privileges offered up by the White House in those years, and perhaps as a senior and trusted aid, even opinions and memos on such extraordinary assertions of executive power as the decision to bomb Serbia without prior Congressional authorization.

Republicans in the Senate have to insist on the release from the Clinton Library of every memo from or to SG Kagan –exactly the same sort of release as was made of Chief Justice Roberts’ White House papers at the time of his nomination.

I discussed the Kagan papers with Newsweek’s Howard Fineman and The New Republic’s Jonathan Chait on Tuesday’s radio show. The transcript of the conversation with Fineman is here, and the Chait transcript is here. Both seem to agree that whatever papers exist ought to be supplied to the Judiciary Committee. The GOP ought to press Senator Leahy to make that demand asap so as to allow the Committee –and the public– a full opportunity to review SG Kagan’s work product before the hearings are even scheduled.

I doubt very much there is anything that will surprise in the papers, but a rule for one nominee ought to be the rule for them all, and Republicans ought to insist on exactly the same process for nominee Kagan as applied to nominee Roberts.



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