Federal Judiciary

Monday round-up

By Akin Gump Supreme Court Practice Group

On Friday afternoon, the National Archives released thousands of documents from Elena Kagan?s service in the Clinton White House.  Journalists and bloggers (and Judiciary Committee staffers, no doubt) are still working their way through them, but early reports are in, and Kagan?s pragmatism is a major theme.  Mark Sherman of the Associated Press (via the Chicago Tribune) describes Kagan as ?a pragmatist with sometimes unpredictable views on hot-button topics when she was domestic policy adviser to President Bill Clinton.?  In the Los Angeles Times, James Oliphant, David Savage, and Richard Serrano characterize the documents as ?offer[ing] a more detailed picture of a pragmatic strategist dedicated to advancing Clinton’s largely centrist policy aims,? and they suggest that the documents ?appeared, at least initially, unlikely to hand Republicans a significant weapon to use to imperil her nomination.? 

In the Wall Street Journal, Jess Bravin and Naftali Bendavid report that ?the materials demonstrate the vast scope of national and regional issues that Ms. Kagan touched, or was at least glancingly acquainted with, while working at the heart of the White House policy operation.?  Robert Barnes and Amy Goldstein of the Washington Post review memos relating to gun control, assisted suicide, and genetic cloning and conclude that although ?[t]he documents show Kagan at the nexus of some of the thorniest domestic issues facing Clinton? in many cases her own opinions are absent.?

In the New York Times, Sheryl Gay Stolberg highlights one strong position that Kagan did take?she thought that a proposal to make assisted suicide a federal crime was ?a fairly terrible idea??but notes that she ?rarely expressed forceful views.?  Josh Gerstein gives a similar account of the documents in Politico: ?generally the files reinforce the impression? that as a domestic policy adviser from 1997 to 1999, Kagan sometimes took positions that made her a relative centrist within the Clinton administration, though some of her allies say those stands are more an indication of pragmatism on Kagan?s part than of political moderation.?

These files and others still to be released may yet include surprises, fairly scarce thus far: Janie Lorber of the New York Times unearths a coloring book, produced by the Red Cross to promote disaster preparedness, as evidence of Kagan?s involvement in issues of early childhood development. 

With just over three weeks to go until the confirmation hearings, Michael Kirkland of UPI looks ahead and predicts a fairly easy go of it, since ?[f]or now, most of her critics seem to be playing soft ball.?  The Wall Street Journal reports on Kagan?s poll numbers: ?46% of Americans say Kagan should be confirmed, a number that?s lower than other recent nominees with the exception of Robert Bork and Harriet Miers.?  And at the Washington Post, Greg Sargent expects Republicans to attack Kagan as hostile to gun rights, based upon her work on gun control issues for Clinton.  Glenn Thrush of Politico sees it happening now: ?Republicans are already hitting the nominee for what they see as a pattern of prejudgment and liberal bias in her private correspondence.?

Briefly:

• Twenty-seven of the seventy-eight cases argued this Term are still awaiting decision.  Joan Biskupic in USA Today discusses the ?traditional June crunch? to complete the year?s work and looks at the prominent cases that will come down in the next several weeks.
• At the Huffington Post, Doug Kendall criticizes both Justice Souter (who gave a recent Harvard commencement address) and E.J. Dionne for failing to ?respond to Scalia and his cohorts by offering a different, more inspiring and appealing account of our Nation?s charter.?

Full post as published by SCOTUSBLOG on June 07, 2010 (boomark / email).