What 46,700 Pages of Clinton-Era Documents Reveal About Kagan

A somewhat veiled, pragmatic-centrist mind on display

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The National Archives has released 46,700 pages of documents from Elena Kagan's days as an adviser in the Clinton administration. The documents, which include everything from policy missives to notes scribbled in the margins of internal memos, are revealing in how little they reveal about the ever-guarded Kagan and her views. But given her nomination by President Obama to the Supreme Court, pundits are exploring the papers for glimpses at Kagan's thinking, how she might perform as a justice, and what questions she will face when the confirmation process begins June 28.

  • Like Obama, Ever the Centrist  The New York Times' Sheryl Gay Stolberg says the documents reveal "a woman who, like the president she worked for, was trying to balance competing policy objectives and chart a centrist course on matters as varied as abortion, race relations, immigration, AIDS, gun rights and embryonic stem cell research. She endorsed a legal strategy aimed at avoiding a sweeping Supreme Court ruling against affirmative action. She urged the Department of Health and Human Services to be more candid about the lack of scientific evidence for medical marijuana. She expressed skepticism about a drive to bar schools from tracking students by ability. She cautioned against imposing tough marketing restrictions on the tobacco industry — a hint of her background as a First Amendment scholar."
  • Vague Picture Allows People to 'See What They Want'  The Associated Press's Mark Sherman warns, "the documents offer hints but little definition of President Barack Obama's choice to succeed Justice John Paul Stevens, who led a four-justice liberal bloc on the court. As with many faded or blurry pictures, there's just enough material for people to see what they want."
  • No 'Smoking Guns' For Critics  Politics Daily's Andrew Cohen writes, "the pickings in the "Kagan" files are slim indeed. There are no repudiations of core American values; no secret screeds, no hidden odes to dark faiths. And certainly nothing as shocking or embarrassing or -- you would think -- as career-stopping, as Rehnquist's note defending a doctrine -- separate but equal -- which almost all now find repugnant."
  • She's a Consequentialist  The Christian Science Monitor's David Rose explains, "Moral philosophers divide theories of morality between those that are consequentialist and those that are nonconsequentialist in nature. Consequentialist theories of morality contend that moral propriety is determined by the consequences of actions, not the actions themselves. Stealing, for example, is therefore deemed wrong because it harms the victim, not because it is inherently wrong to take something that belongs to someone else." Kagan's documents reveal her to be consequentialist, he argues. "Do we really want the law of the land to be determined by a few judges? The proper place for consequentialist moral reasoning in American public life is in public debate and at the ballot box, not in a court of law."
  • Bold and Smart on Education Policy  Education Week's Mark Walsh finds Kagan and her office to have been "deeply involved in education issues, often coordinating with the Department of Education. Clinton aides viewed education initiatives—whether ambitious, such as an effort to reauthorize the ESEA, or modest, such as a proposal to promote school uniforms—as something that connected with voters, put Republicans on the defensive, and helped cement the president's legacy."
This article is from the archive of our partner The Wire.