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SG Kagan’s White House Years

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With the initial tide of commentary still flowing in and focused on SG Kagan’s time at Harvard, it is still too early to see if her tenure in the White House under President Bill Clinton will become a significant issue in her confirmation.

As the timeline of her career indicates, SG Kagan served in senior positions in the White House from some point in 1995 to some point in 1999. These are years of almost unrelenting investigation, scandal and ultimately impeachment, but also years which include the aftermath of the Oklahoma City bombing and the bombing of Kosovo, the former requiring unprecedented surveillance of American citizens and the latter a unilateral exercise in presidential power that remains among the most vigorous exercises of executive authority on the history books –far surpassing the actions of George W. Bush in that Bush sought and received Congressional authorization for the military campaigns conducted in Afghanistan and Iraq. NATO’s bombing campaign –begun March 22 and concluded June 11, 1999– was effective in bringing an end to the war of the Serbs against the Kosovars, but it was a forceful assertion of presidential power. The power to kill combatants without Congressional writ might be seen as a power greater than that of imprisoning combatants without trial with Congressional permission.

The Clinton White House was also nothing if not inventive when it came to asserting presidential privileges. The “protective function” privilege was cooked up to try and prevent Secret Service agents from testifying in the Lewinsky matter —and was rejected by the courts. So too was a claim of privilege for Sydney Blumenthal’ conversations with Hillary Clinton. Any walk down memory lane prompted by the impeachment proceedings will find all sorts of relics of legal battles fought and lost by the Clinton White House, battles that would not have been begun in the first place except for talented, inventive lawyers willing to stretch precedents or simply create theories out of whole cloth.

The role –if any– of Associate Counsel Kagan and then Domestic Policy Advisor Kagan in any of these disputes is unknown at this point, but certain to be a key issue in the preparation for the hearings. The GOP should make a demand for every piece of paper in the Clinton archives with SG Kagan’s name on it –either as an author, an addressee or even if copied on the matter.
If all those papers are not forthcoming, the GOP’s 41 should refuse to move the nomination forward. I do not support filibusters over matters of judicial philosophy, but the Senate’s job is to investigate and evaluate a nominee’s fitness for the job and especially his or her legal philosophy. Senators cannot evaluate what they do not have. SG Kagan has an enormous paper trail, but it is in the shuttered Clinton archives, shutters which have to be thrown open if the senators and the public are going to have a full view of her career. Any “hearing” that proceeded without these crucial papers would be a sham, and the Senate Republicans should announce now that they will treat is as such if the papers aren’t delivered and with enough time to study them carefully.

This was the rule, by the way, that was adopted when Chief Justice Roberts was nominated. The shelves of the Reagan Library were emptied of all the Roberts’ boxes. Yesterday, however, Team Obama made a first move which indicates they intend to block the full review of the SG’s White House years.

“I’m sure the committee will request those papers and we’ll reach an accommodation with the Clinton Library on that,” Ron Klain, chief counsel to the vice president and a key figure in the White House legal team, said. “We’ve got to see what the committee wants to see and we’ll go from there.”

In other words, the White House will count on the ever pliable Patrick Leahy to block any wide ranging request, and then attempt to spin the media on the thoroughness of the disclosure. Leahy can go from filibustering to denouncing filibusters in the blink of an eye, so he can be counted on to say anything the White House wants. But the public now knows this White House for the Chicago-style politics it practices, and a jam down on Kagan will further sour the public –if that is possible– on the hyper-partisanship of the Obama Administration. The Solicitor General herself should be fighting for a full and complete release asap so as to head off the issue, no matter what she wrote or opined at the time. She has much more to lose from a cover-up of her work than its quick and complete disclosure.

It will be interesting to get the details on How the SG ran Harvard Law –especially if anyone was denied tenure during her tenure as dean. If such a frustrated faculty member exists, that former professor will be among the more interesting voices in the debates ahead.

But the focus should be on those four-plus years the SG spent in the White House. And without the papers –all of the papers– there cannot be a fair and full evaluation of the crucial period in her career and in the life of the country.



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