Monday round-up

By James Bickford
on Jun 14, 2010 at 9:32 am

Another batch of Kagan documents – the second of three installments from the Clinton Library – was released on Friday.  This collection contained memos written by Elena Kagan from 1995 to 1997, when she served as Associate White House Counsel.  (The final installment, to be released this Friday, will include her emails from all four years in the Clinton White House.)  Commentators noted Kagan’s engagement in the political controversies of the time.  Alec MacGillis of the Washington Post observes that “she quickly found herself immersed in the scandals and dust-ups of Bill Clinton’s presidency: the Paula Jones case, Whitewater and a controversy over mishandled FBI files,” while Peter Baker and Sheryl Gay Stolberg of the New York Times find that  Kagan “pushed back against President Bill Clinton when she thought his position on a controversial form of late-term abortion was unconstitutionally restrictive but backed other options that fellow administration lawyers considered unconstitutional. She argued against state interference with religious views and against local interference with federal immigration law.”  And Josh Gerstein of Politico concludes that, under Clinton, Kagan was “not so much a bookish legal and policy wonk as a political creature highly attuned to the implications of presidential decisions.”

Jess Bravin of the Wall Street Journal describes Kagan’s involvement in the Paula Jones suit.  David Savage and James Oliphant of the Los Angeles Times focus on Jones and the Whitewater controversy, while Marcia Coyle of the Blog of Legal Times reports that “Kagan reached out to a list of legal ethics superstars and former White House counsels to write op eds and answer press questions in support of Clinton’s position” on Whitewater and attorney-client privilege.  Pete Yost (AP via Newsmax) finds that Kagan “steeped herself in details of the Ruby Ridge controversy,” in which a federal agent and the wife and child of a white separatist were killed in a stand-off several months before the 1992 election.  Julie Hirschfield Davis (AP via Huffington Post) reports that about 1350 pages of the Paula Jones materials were turned over to the Senate Judiciary Committee, but will not be made public due to attorney-client confidentiality concerns expressed by President Clinton.

Amidst the deluge of documents, the New York Times editorial board declares that “[a] bit of the fog is beginning to lift on the work and thinking of Elena Kagan.”  The Times describes Kagan as “an adept centrist — much like her old boss — who tried to remain thoughtful while shielding President Bill Clinton from ideological extremes,” and suggests that “the [recently released] papers should mute the Republican outcries that Ms. Kagan is a dangerous leftist, since they show she is nothing of the kind.”

Kagan’s memos for Justice Marshall played a significant role in her first confirmation hearings.  Robert Barnes of the Washington Post reviews those documents and notes that former Supreme Court clerks play “an increasing role in the workings of the court — as practitioners, analysts and law professors whose work centers on the institution.”

Mark Sherman (AP via the Washington Times) suggests that, if confirmed, “Kagan would have to sit out high court review of the government’s decade-old racketeering lawsuit against cigarette makers.”  The cert. petitions in that case, United States v. Philip Morris USA, Inc., are expected to be considered at the Justices’ June 24 conference; if cert. is granted, the case would be argued next Term.  Russ Bleemer of the alternative dispute resolution periodical Alternatives, reports that “Elena Kagan was at the heart of a White House initiative to boost ADR use in the federal government.”

Finally, the AP (via the Guardian) records an exchange of notes between Kagan and President Clinton shortly after her nomination to the D.C. Circuit. “Kagan said, ‘Should I ever be lucky enough to sit as a judge, I will try every day to be worthy of it.’ Clinton responded that Kagan would make a wonderful judge, noting that she was ‘young enough to have a profound impact.’”

Briefly, in news from the Court:

• Marcia Coyle of the National Law Journal (via Law.com) reports that “Congress and the U.S. Supreme Court appear headed for collision over mandatory arbitration in consumer and employment contracts.” 
• Joe Mandak (AP via the Pittsburgh Channel) reports on remarks by the Chief Justice at the D.C. Circuit’s Judicial Conference.  The Chief Justice praised both the Court’s newest member – describing Justice Sotomayor as “a wonderful colleague who brings a fresh and lively perspective both to oral arguments and our conference discussions” – and its most senior – indicating that “[w]e will miss [Justice Stevens’] wisdom and his Midwestern charm in our daily work.”
• In the New York Times, Scott Shane and Eric Lichtblau report that “[w]ithin months of the beginning of the eavesdropping program in October 2001, a staff member of the House Intelligence Committee, alerted to the possibility of illegal spying by N.S.A. insiders and hoping to prompt a high-level legal review, wrote to Chief Justice Rehnquist asking for a meeting.”  It is not known whether the Chief Justice ever received the letter.
• On PrawfsBlawg, Rick Hills notes that the United States recently filed a brief in opposition in which it asserted that the Supreme Court lacks jurisdiction over orders by the Puerto Rico Supreme Court denying discretionary review under 28 U.S.C. § 1258.