Kagan Documents the White House Won't Release

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Solicitor General Elena Kagan has already provided the Senate Judiciary Committee more than 200 pages of answers, more than 500 pages of her scholarly writings, text and video of dozens ofd speeches, e-mails and letter, 66 merit briefs filed by Kagan as SG, 17 petitions for certiorari before the Court, and 24 briefs offering the government's position on certiorari petitions filed by private parties. The Clinton Library is expected to release tens of thousands of pages of documents from Kagan's service as a domestic policy adviser. This won't be enough.

Expect Republicans on the Judiciary Committee to demand that Kagan hand over internal documents related to her current job. These memos would probably tell the world quite a bit about Kagan's current judicial philosophy but would also be quite revealing about the Obama administration's internal strategic deliberations about policy. Expect the White House to say "no sir" when Republicans request these documents.

They will be on firm ground, politically and substantively. In 2005, Democrats wanted the White House to release internal documents from John Roberts's tenure in the SG's office during the Reagan administration. The Bush White House argued that releasing them would be, in the words of the then White House press secretary Scott McClellan, "detrimental to the government's ongoing ability to litigate certain issues if a candidate discussion of the pros and cons of various arguments are disclosed."

Now, obviously, privileges can be waived.

In 1999, the Justice Department turned over reams of paper to the National Archives, and some of Roberts's documents were already available. But the Bush White House believed that the privilege had to be kept intact, and that the solicitor general, uniquely, has to be able to provide his or her superiors with candid legal advice, the type of advice that might change if the public or Congress or the opposing counsels were to get a gander at it. (McClellan called Democratic efforts to pressure the White House into turning over these documents a "political ploy.")

So -- have Republicans on the Judiciary Committee endorsed the idea that the SG documents ought to remain privileged? Sen. Orrin Hatch did in 2003, saying that "no administration worth their salt, no executive branch government worth any constitutional knowledge, would give up those papers, even to people they trust."

In a Senate floor colloquy, Hatch was asked about previous document releases by Sen. Harry Reid. "Let me ask the Senator this question. Are you saying on the five occasions we know of, there could be more, when the Attorney General released memoranda from the Solicitor's Office relating to Rehnquist, Bork, Civiletti, and others, that they were violating the law when they released those documents?"

Here's Hatch's response:

Mr. HATCH. They were completely different documents. They had nothing to do with recommendations for appeals, certiorari petitions, or amicus curiae matters. No. They have never, ever been asked for before, to my knowledge, and they have never, ever been given, nor would they. By the way, there have been some limited documents given by the Justice Department in some nomination matters, none of them related to what were requested by the Senate Democrats in this matter. And there are only a couple of cases where the Attorney General did allow that. The other cases, they appeared to have been leaked by friends of Democrats at the Justice Department. So they were not given up by the Justice  Department. We have more than made that case throughout this debate. There is no question about it. And it is just another phony argument. I do not blame my colleague from Nevada for not knowing that. But I think it is time to learn it. ...

Briefly: Hatch's colleague John Cornyn said in 2005 that the SG deliberation memos were protected by "attorney-client" privilege.  At the same time, Sen. Mitch McConnell noted that six former solicitors generals had opposed the idea of releasing the Roberts memos. There are similar statements from other Republicans on the Judiciary Committee.  

Bottom line is: the Republicans may ask for the SG documents, making a case that because Kagan's most recent job is more germane to her current thinking than previous jobs, perhaps an exception ought to be created.

But in 2005, Republicans were fairly absolute about the idea that these exact documents ought to be privileged ... even years after the particular nominees had served in their jobs.

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Marc Ambinder is an Atlantic contributing editor. He is also a senior contributor at Defense One, a contributing editor at GQ, and a regular contributor at The Week.

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